The PA Superior Court has decided the case of Commonwealth v. Johnson, No. 962 WDA 2015 (March 21, 2017), holding that the trial court’s failure to colloquy Johnson of his constitutional right to counsel prior to his suppression hearing warranted a new suppression hearing and a new trial.

Johnson was charged with possession of a firearm with an altered manufacturer’s number, persons not to possess, firearms not to be carried without a license, resisting arrest, fleeing or attempting to elude a police officer, and driving while operating privilege is suspended or revoked.

After his arrest, Johnson filed an application for representation by the public defender and was appointed counsel. However, he sent a letter to his appointed counsel, indicating that she was not his attorney. Thereafter, he appeared at his Preliminary Hearing and, in writing, waived his right to counsel at the magisterial district court.

After the Preliminary Hearing waiver, Johnson filed an omnibus pretrial motion, requesting suppression of evidence and dismissal of his case. The trial court denied his motion following a hearing. Johnson then hired private counsel to represent him at trial. Following a two-day jury trial, he was convicted and sentenced to an aggregate of 186 to 384 months of incarceration plus fines.

Johnson filed an appeal, raising a number of issues. However, the Superior Court first concluded that before they could address the merits of Johnson’s issues, they were first required to determine whether Johnson properly waived his right to counsel during the Suppression Hearing.

As noted by the Superior Court, a judge’s thorough inquiry into the accused’s appreciation of both the right to counsel and the right to represent oneself must be used in certain summary proceedings, at trial, guilty plea hearings, sentencing, and every ‘critical stage’ of a criminal proceeding.

Here, there was nothing in the record indicating Johnson ever waived his right to counsel on the record before the trial court conducted the suppression hearing. Although the Superior Court noted that Johnson signed a notice of waiver of counsel before the district judge, that limited the waiver to the matter before the district judge. This waiver of counsel, while sufficient in front of the district judge, was insufficient at any subsequent event before the trial court.

As a suppression hearing is a critical stage and Johnson was not informed of his rights on the record, the Superior Court concluded that they were constrained to find that Johnson did not knowingly, voluntarily, and intelligently waive his right to counsel.


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