Commonwealth v. Dunkel

BECK, Judge,

concurring:

I concur in the result. The majority states “[t]he error with the trial court’s analysis is that it premises a conclusion on the ultimate issue in the underlying case,” that appellant had possession and retained possession of the funds. I do not find that the court erred in engaging in that line of inquiry in its attempt to answer the question before it.

The procedural posture of the case was a pre-trial In Forma Pauperis (IFP) determination as to whether the appellant was indigent and entitled to the appointment of counsel. The evidence adduced at this hearing was independent of the trial itself. The IFP hearing did not compromise the Commonwealth’s burden of proving at trial appellant’s guilt by introducing evidence to prove each element of the crime beyond a reasonable doubt. At trial the Commonwealth could not rely on evidence adduced at the IFP hearing. A well-reasoned Third Circuit opinion, United States v. Pavelko, 992 F.2d 32 (3d Cir.1993), holds that the “government should not be permitted to use as part of its direct case any testimony given by a defendant at a hearing where he is seeking forma pauperis relief or the assignment of counsel on the ground of his financial inability to ... secure counsel.” Id. at 34 (quoting United States v. Branker, 418 F.2d 378 (2d Cir.1969)). The rationale of the Pavelko court was that it was impermissible to make the defendant choose “between the privilege of self incrimination and the right to court-appointed counsel.” Id. I therefore disagree with the majority that a remand is necessary because the IFP hearing drew a conclusion on the ultimate issue to be decided at trial.

The basis for my remand, therefore, differs from the majority’s. My rationale is that the record reveals that the IFP hearing was totally inadequate under the standard established in Commonwealth v. Brown, 327 Pa.Super. 505, 476 A.2d 381 (1984).

Because appellant proceeded to trial without counsel based on the court’s failure adequately to inquire into his IFP status, I would grant a new trial. I would also remand for a new IFP hearing to determine if appellant at his retrial is entitled to counsel.¹

1 . I point out the law's strong mandate that at trial a criminal defendant be represented by counsel. The United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defense.” U.S. Const.Amend. VI. An accused unable to afford counsel has the right to have counsel appointed for him. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This right extends to everyone charged with an offense punishable by imprisonment, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and is binding upon the states, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).