knowing and intelligent waiver in Pennsylvania

2025“To be a knowing and intelligent waiver defendant must be aware of both the right and of the risks of forfeiting that right.” Commonwealth v. Phillips, 141 A.3d 512, 517 (Pa. Super. 2016) (emphasis added) (citation omitted). “[F]or this Court to uphold such a waiver, the record must clearly demonstrate an informed relinquishment of a known right.” Houtz, 856 A.2d at 122 (formatting altered and citation omitted).

2024“In order to make a knowing and intelligent waiver, the individual must be aware of both the nature of the right and the risks and consequences of forfeiting it.” Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa.Super. 2004) (quoting Commonwealth v. Payson, 723 A.2d 695, 700 (Pa.Super. 1999)).

2026Commonwealth v. Tyler, 360 A.2d 617, 620 (Pa. 1976) (citations and quotation marks omitted).

2026Commonwealth v. Tyler, 360 A.2d 617, 620 (Pa. 1976) (citations and quotation marks omitted).

2024“In order to make a knowing and intelligent waiver, the individual must be aware of both the nature of the right and the risks and consequences of forfeiting it.” Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa.Super. 2004) (quoting Commonwealth v. Payson, 723 A.2d 695, 700 (Pa.Super. 1999)).

2024“In order to make a knowing and intelligent waiver, the individual must be aware of both the nature of the right and the risks and consequences of forfeiting it.” Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa.Super. 2004) (quoting Commonwealth v. Payson, 723 A.2d 695, 700 (Pa.Super. 1999)).

2024For counsel’s advice regarding a defendant’s jury waiver to be the basis for a successful claim of ineffective assistance of counsel, the defendant must prove that “counsel interfere[d] with his client’s freedom to decide to waive a jury trial” and that counsel’s specific advice was “so unreasonable as to vitiate the knowing and intelligent waiver of the right.” Commonwealth v. Mallory, 941 A.2d 686, 701 (Pa. 2008) (citation omitted).

2024To make a knowing and intelligent waiver, the defendant must know the “three basics of a jury trial,” including “the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.” Commonwealth v. Mallory, 941 A.2d 686 , 696- 97 (Pa. 2008).

2015The majority relied on Argersinger v. Hamlin, 407 U.S. 25, 37 , 92 S.Ct. 2006 , 32 L.Ed.2d 530 (1972), where the United States Supreme Court held, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial,” and this Court’s earlier decision in Commonwealth v. Abrams, 461 Pa. 327 , 336 A.2d 308 (1975). 10 However, the Crawford Court was sharply divided, with three of the seven justices dissenting on the issue of whether the accused is entitled to counsel in circums

2015The majority relied on Argersinger v. Hamlin, 407 U.S. 25, 37 , 92 S.Ct. 2006 , 32 L.Ed.2d 530 (1972), where the United States Supreme Court held, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial,” and this Court’s earlier decision in Commonwealth v. Abrams, 461 Pa. 327 , 336 A.2d 308 (1975). 10 However, the Crawford Court was sharply divided, with three of the seven justices dissenting on the issue of whether the accused is entitled to counsel in circums

2023Counsel’s advice to waive a jury trial can be the source of a valid claim of ineffective assistance of counsel only when 1) counsel interferes with his client’s freedom to decide to waive a jury trial... or 2) appellant can point to specific advice of counsel so unreasonable as to vitiate the knowing and intelligent waiver of his right.” Commonwealth v. Boyd, 334 A.2d 610, 616-617 (Pa. 1975) (quoting Commonwealth v. Stokes, 299 A.2d 272 , 276 n.1 (Pa. 1973).

2019Our Supreme Court has long held that counsel’s advice to waive a jury trial can be the basis for a successful claim of ineffective assistance of counsel only when: “1) counsel interferes with his client’s freedom to decide to waive -5- J-S11011-19 a jury trial or 2) [the] appellant can point to specific advice of counsel so unreasonable as to vitiate the knowing and intelligent waiver of the right.” Commonwealth v. Boyd, 334 A.2d 610, 617 (Pa. 1975) (citation omitted).

1993“For that individual to be able to make a knowing and intelligent waiver of a constitutional right, he must have been aware of both the nature of the constitutional right and the risk of forfeiting the same.” Commonwealth v. Szekeresh, 357 Pa.Super. 149, 154 , 515 A.2d 605, 607 , appeal denied, 515 Pa. 606 , 529 A.2d 1080 (1986); See Commonwealth v. Barnette, 445 Pa. 288 , 285 A.2d 141 (1971) (to be a knowing and intelligent waiver the defendant must be aware of both the right and the risks of forfeiting the same).

1993“For that individual to be able to make a knowing and intelligent waiver of a constitutional right, he must have been aware of both the nature of the constitutional right and the risk of forfeiting the same.” Commonwealth v. Szekeresh, 357 Pa.Super. 149, 154 , 515 A.2d 605, 607 , appeal denied, 515 Pa. 606 , 529 A.2d 1080 (1986); See Commonwealth v. Barnette, 445 Pa. 288 , 285 A.2d 141 (1971) (to be a knowing and intelligent waiver the defendant must be aware of both the right and the risks of forfeiting the same).

1973As this Court held more than five years ago in Commonwealth v. Dixon, 432 Pa. 423, 425 , 248 A. 2d 231, 233 (1968): ". . . `[A]s a matter of law there cannot be a finding of a knowing and intelligent waiver of the right to counsel unless the accused shall have been explicitly informed [prior to police interrogation] that he is entitled to free counsel if he is indigent.' (Emphasis in original.) Cf. Commonwealth v. Bordner, 432 Pa. 405 , 247 A. 2d 612 (1968); Commonwealth v. Ezell, 431 Pa. 101 , 244 A. 2d 646 (1968); Commonwealth v. Wilson, 430 Pa. 1 , 241 A. 2d 760 (1968). `Merely telling a de

1973As this Court held more than five years ago in Commonwealth v. Dixon, 432 Pa. 423, 425 , 248 A. 2d 231, 233 (1968): ". . . `[A]s a matter of law there cannot be a finding of a knowing and intelligent waiver of the right to counsel unless the accused shall have been explicitly informed [prior to police interrogation] that he is entitled to free counsel if he is indigent.' (Emphasis in original.) Cf. Commonwealth v. Bordner, 432 Pa. 405 , 247 A. 2d 612 (1968); Commonwealth v. Ezell, 431 Pa. 101 , 244 A. 2d 646 (1968); Commonwealth v. Wilson, 430 Pa. 1 , 241 A. 2d 760 (1968). `Merely telling a de

1984Commonwealth v. Williams, 454 Pa. 368, 373 , 312 A.2d 597, 600 (1973). [2] Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides in pertinent part: The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record.

1984Commonwealth v. Williams, 454 Pa. 368, 373 , 312 A.2d 597, 600 (1973). [2] Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides in pertinent part: The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record.

2019Id. at 18 (citing Commonwealth v. Vega, 719 A.2d 227, 230 (Pa. 1998) (discussing the colloquy adequate to establish a knowing and intelligent waiver when a defendant expressly waives his right to be present at trial)).

2009See also Commonwealth v. Vega, 553 Pa. 255 , 719 A.2d 227 (1998) (plurality) (requirements for a knowing and intelligent waiver of a defendant's presence at trial under Pa.R.Crim.P 602 include a full, on-the-record colloquy concerning the consequences of forfeiture of the defendant's right to be present).

2019A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) (footnotes and citations omitted). -4- J-S46040-18 Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa. Super. 2017) (emphasis added).2 The determination of whether a valid waiver of counsel occurred in any particular case implicates the requirements of Pa.R.Crim.P. 121: “In order to make a knowing and intelligent waiver, the individual must be aware of both the nature of the right and the risks and consequences of forfeiting

2019A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) (footnotes and citations omitted). -4- J-S46040-18 Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa. Super. 2017) (emphasis added).2 The determination of whether a valid waiver of counsel occurred in any particular case implicates the requirements of Pa.R.Crim.P. 121: “In order to make a knowing and intelligent waiver, the individual must be aware of both the nature of the right and the risks and consequences of forfeiting

1983It is well-established that: “ ‘[When] the trial court [does] not comply with Rule 1123(c), petitioner’s failure to file adequate post-verdict motions cannot be deemed a knowing and intelligent waiver of his right to appeal.’ Commonwealth v. Cathey, 477 Pa. 446, 450 , 384 A.2d 589, 591 (1978).” Commonwealth v. Rowe, 268 Pa.Super. 380, 383 , 408 A.2d 516, 517 (1979). 5 In any event, the issue of whether appellant was deprived of his appellate rights either at the post-trial stage or at the PCHA stage is intertwined in the instant case because the PCHA court concluded that appellant’s appellate

1983It is well-established that: “ ‘[When] the trial court [does] not comply with Rule 1123(c), petitioner’s failure to file adequate post-verdict motions cannot be deemed a knowing and intelligent waiver of his right to appeal.’ Commonwealth v. Cathey, 477 Pa. 446, 450 , 384 A.2d 589, 591 (1978).” Commonwealth v. Rowe, 268 Pa.Super. 380, 383 , 408 A.2d 516, 517 (1979). 5 In any event, the issue of whether appellant was deprived of his appellate rights either at the post-trial stage or at the PCHA stage is intertwined in the instant case because the PCHA court concluded that appellant’s appellate

2021“Moreover, the Commonwealth merely needs to establish a knowing and intelligent waiver of a constitutional right by a preponderance of the evidence.” Id.

1993“For that individual to be able to make a knowing and intelligent waiver of a constitutional right, he must have been aware of both the nature of the constitutional right and the risk of forfeiting the same.” Commonwealth v. Szekeresh, 357 Pa.Super. 149, 154 , 515 A.2d 605, 607 , appeal denied, 515 Pa. 606 , 529 A.2d 1080 (1986); See Commonwealth v. Barnette, 445 Pa. 288 , 285 A.2d 141 (1971) (to be a knowing and intelligent waiver the defendant must be aware of both the right and the risks of forfeiting the same).

2019Commonwealth v. Williams, 650 A.2d 420, 427 (Pa. 1994 ).

2001Commonwealth v. Williams, 539 Pa. 61 , 650 A.2d 420 (1994); Commonwealth v. Chacho, 500 Pa. 571 , 459 A.2d 311 (1983).

2020“In order to make a knowing and intelligent waiver, the individual must be aware of both the nature of the right and the risks and consequences of forfeiting it.” Id. (citation omitted).

2019A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) (footnotes and citations omitted). -4- J-S46040-18 Commonwealth v. Johnson, 158 A.3d 117, 121 (Pa. Super. 2017) (emphasis added).2 The determination of whether a valid waiver of counsel occurred in any particular case implicates the requirements of Pa.R.Crim.P. 121: “In order to make a knowing and intelligent waiver, the individual must be aware of both the nature of the right and the risks and consequences of forfeiting

1976In United States v. Nielsen, supra, the Seventh Circuit found that the defendant’s refusal to sign a waiver form compelled a conclusion “... that the defendant’s negative responses to the questions asked him were not made after a knowing and intelligent waiver of his rights.” Id. at 853 .

1976In United States v. Nielsen, supra, the Seventh Circuit found that the defendant’s refusal to sign a waiver form compelled a conclusion “... that the defendant’s negative responses to the questions asked him were not made after a knowing and intelligent waiver of his rights.” Id. at 853 .

2019Court erred in denying Defendant's pre-trial motions to suppress defendant's statements made to police outside Defendant's residence on October 29, 2015 1: TheUnited States Supreme Court ruling in Miranda v. Arizona, 384 U.S. 436 (1966), I requires that a person must make a knowing and intelligent waiver of his privilege against self- I! incrimination and right to counsei after being provided an adequate warning as to these rights · \ ) before he is subjected to custodial interrogation.

2018Suppression Hearing, 3/11/16, at 4). “[W]hen a suspect waives his right to counsel after receiving warnings equivalent to those prescribed by Miranda v. Arizona, supra, that will generally suffice to establish a knowing and intelligent waiver of the Sixth Amendment right to counsel for purposes of post-indictment questioning.” Commonwealth v. Kuzmanko, 709 A.2d 392, 397 (Pa. Super. 1998), appeal denied, 729 A.2d 1126 (Pa. 1998) (quoting Michigan v. Harvey, 494 U.S. 344, 349 (1990)).

2025Whether Appellant ran a higher risk of conviction and more severe punishment by proceeding pro se is “wholly irrelevant to an assessment of whether [Appellant] has rendered a knowing and intelligent waiver of his right to the assistance of counsel.” Starr, 664 A.2d at 1336 .

2022“In order to make a knowing and intelligent waiver, the individual must be aware of both the nature of the right and the risks and consequences of forfeiting it.” [Commonwealth v.] Payson, [ 723 A.2d 695 ,] 700 [(Pa. Super. 1999)] (citing Commonwealth v. Starr, 541 Pa. 564 , 664 A.2d 1326 (1995)).

1983Commonwealth v. Goodwin, 460 Pa. 516 , 333 A.2d 892 (1975).

1983Commonwealth v. Goodwin, 460 Pa. 516 , 333 A.2d 892 (1975).

1973As this Court held more than five years ago in Commonwealth v. Dixon, 432 Pa. 423, 425 , 248 A. 2d 231, 233 (1968): ". . . `[A]s a matter of law there cannot be a finding of a knowing and intelligent waiver of the right to counsel unless the accused shall have been explicitly informed [prior to police interrogation] that he is entitled to free counsel if he is indigent.' (Emphasis in original.) Cf. Commonwealth v. Bordner, 432 Pa. 405 , 247 A. 2d 612 (1968); Commonwealth v. Ezell, 431 Pa. 101 , 244 A. 2d 646 (1968); Commonwealth v. Wilson, 430 Pa. 1 , 241 A. 2d 760 (1968). `Merely telling a de

1973As this Court held more than five years ago in Commonwealth v. Dixon, 432 Pa. 423, 425 , 248 A. 2d 231, 233 (1968): ". . . `[A]s a matter of law there cannot be a finding of a knowing and intelligent waiver of the right to counsel unless the accused shall have been explicitly informed [prior to police interrogation] that he is entitled to free counsel if he is indigent.' (Emphasis in original.) Cf. Commonwealth v. Bordner, 432 Pa. 405 , 247 A. 2d 612 (1968); Commonwealth v. Ezell, 431 Pa. 101 , 244 A. 2d 646 (1968); Commonwealth v. Wilson, 430 Pa. 1 , 241 A. 2d 760 (1968). `Merely telling a de

2003Commonwealth v. Johnson, 319 Pa.Super. 463 , 466 A.2d 636, 641 (1983).

2003Commonwealth v. Johnson, 319 Pa.Super. 463 , 466 A.2d 636, 641 (1983).