Waiver of counsel at Magisterial Court level did not carry over to Common Pleas proceedings

Commonwealth v Johnson 2017 PA Super 71 (March 21, 2017)

Mr. Johnson was arrested after a high speed chase in Philadelphia that ended up with him crashing into a house and being stuck more than once by police who claimed it was necessary to subdue him. He was charged with various offenses relating to a car chase in a center city Philadelphia neighborhood. He was appointed a public defender, but told her that he did not want her, and he appeared pro se at his preliminary hearing after waiving his right to counsel pursuant to Pa.R.Crim.Pro. 121(B). Charges were held for court and he filed a pro se omnibus pre-trial motion including motions to suppress and dismiss. The motions were denied, and the Defendant then hired counsel who represented the Mr. Johnson at his trial, where he was found guilty. He was sentenced to an aggregate sentence of 186 to 384 months, and he appealed.

On appeal, the Superior Court remanded the matter to ascertain whether the Defendant was entitled to a public defender before the suppression hearing or any other indications that he waived his right to counsel. The Common Pleas Court responded that there was no indication the Defendant had waived his right to counsel pursuant to Pa.R.Crim.Pro. 121(C).

Even though Mr. Johnson never raised the issue, the Court quoted from another case that “where an indigent, first-time PCRA petitioner was denied his right to counsel –or failed to properly waive that right – this Court is required to raise this error sua sponte and remand for the PCRA court to correct that mistake.” Even though this was not a PCRA matter, the Court found it applied to non-waiver of counsel in a suppression hearing and consideration of that issue on direct appeal. The waiver of counsel before the magisterial court did not apply to proceedings in the Common Pleas court. Because Mr. Johnson never properly waived his right to counsel before the suppression hearing, the conviction was vacated and the matter remanded for a new suppression hearing and trial.

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