known right privilege in Pennsylvania

2025Pa.R.Crim.P. 312. 15 Although a defendant may waive constitutional rights, “courts indulge every reasonable presumption against waiver of fundamental constitutional rights,” and “we do not presume acquiescence in [their] loss”; indeed, “[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (footnotes and quotation marks omitted).

2023A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (footnotes and citations omitted).

2025(See Dissenting Op. at 7 (Dougherty, J. dissenting) (citing Blakely v. Washington, 542 U.S. 296, 310 (2004); Peretz v. United States, 501 U.S. 923, 936 (1991)).) “The waiver of a constitutional right must be an intentional relinquishment or abandonment of a known right or privilege.” Commonwealth v. Newman, 285 A.2d 523, 526 (Pa. 1971) (internal quotations omitted).

1995The effective waiver of such a right must be an "intentional relinquishment or abandonment of a known right or privilege." Id. ( citing Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461, 1466 (1938)); Commonwealth v. Norman, 447 Pa. 217, 221 , 285 A.2d 523, 526 (1971).

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 Pennsylvania Rule of Criminal Procedure 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

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 Pennsylvania Rule of Criminal Procedure 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

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

2013In the context of criminal law, due process analysis has led to the conclusion that a criminal defendant may waive his right to a jury trial but, for a waiver to be valid, it must be an “ ‘intentional relinquishment or abandonment of a known right or privilege, and the accused must be aware of the ‘essential’ protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.’ ” 20 Commonwealth v. Hayes, 408 Pa.Super. 314 , 596 A.2d 874, 876 (1991) (quoting Commonwealth v. Quarles, 310 Pa.Super. 74 , 456 A.2d 188, 191 (1983)).

2013In the context of criminal law, due process analysis has led to the conclusion that a criminal defendant may waive his right to a jury trial but, for a waiver to be valid, it must be an “ ‘intentional relinquishment or abandonment of a known right or privilege, and the accused must be aware of the ‘essential’ protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.’ ” 20 Commonwealth v. Hayes, 408 Pa.Super. 314 , 596 A.2d 874, 876 (1991) (quoting Commonwealth v. Quarles, 310 Pa.Super. 74 , 456 A.2d 188, 191 (1983)).

2013In the context of criminal law, due process analysis has led to the conclusion that a criminal defendant may waive his right to a jury trial but, for a waiver to be valid, it must be an “ ‘intentional relinquishment or abandonment of a known right or privilege, and the accused must be aware of the ‘essential’ protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.’ ” 20 Commonwealth v. Hayes, 408 Pa.Super. 314 , 596 A.2d 874, 876 (1991) (quoting Commonwealth v. Quarles, 310 Pa.Super. 74 , 456 A.2d 188, 191 (1983)).

2013In the context of criminal law, due process analysis has led to the conclusion that a criminal defendant may waive his right to a jury trial but, for a waiver to be valid, it must be an “ ‘intentional relinquishment or abandonment of a known right or privilege, and the accused must be aware of the ‘essential’ protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.’ ” 20 Commonwealth v. Hayes, 408 Pa.Super. 314 , 596 A.2d 874, 876 (1991) (quoting Commonwealth v. Quarles, 310 Pa.Super. 74 , 456 A.2d 188, 191 (1983)).

1971The strict standard for determining whether there has been an effective waiver of constitutional rights was first enunciated in Johnson v. Zerbst, 304 U.S. 458 , 58 S. Ct. 1019 (1938), where the Supreme Court declared: “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Id. at 464 , 58 S. Ct. at 1023 ; Carnley v. Cochran, 369 U.S. 506, 513 , 82 S. Ct. 884, 888 (1962); Commonwealth v. Anderson, 441 Pa. 483, 486 , 272 A. 2d 877, 878 (1971) ; Commonwealth v. Singleton, 439 Pa. 185, 188-89 , 266 A. 2d 753, 754 (1970).

1971The strict standard for determining whether there has been an effective waiver of constitutional rights was first enunciated in Johnson v. Zerbst, 304 U.S. 458 , 58 S. Ct. 1019 (1938), where the Supreme Court declared: “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Id. at 464 , 58 S. Ct. at 1023 ; Carnley v. Cochran, 369 U.S. 506, 513 , 82 S. Ct. 884, 888 (1962); Commonwealth v. Anderson, 441 Pa. 483, 486 , 272 A. 2d 877, 878 (1971) ; Commonwealth v. Singleton, 439 Pa. 185, 188-89 , 266 A. 2d 753, 754 (1970).

1970We are dealing here with a waiver of a federal constitutional right, the right to free appellate counsel as mandated by Douglas v. California, supra. As such, we must follow the federal standard for finding waiver: “For this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” McCarthy v. United States, 394 U.S. 459, 466 , 89 S. Ct. 1166, 1171 (1969) (emphasis added).

1970“For this waiver [of constitutional rights] to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 459, 464 (1938).” McCarthy v. United States, 394 U.S. 459, 466 (1969).

1980This rule is applicable where there is a federal right involved, Brady v. U. S., 397 U.S. 742, 748 , 90 S.Ct. 1463, 1468 , 25 L.Ed.2d 747 (1970); Brookhart v. Janis, 384 U.S. 1, 4 , 86 S.Ct. 1245, 1246 , 16 L.Ed.2d 314 (1966); Adams v. U. S. ex rel.

1970Ed. 2d 314, 317 , 86 S. Ct. 1245 (1966) : “There is a presumption against the waiver of constitutional rights, . . . and for a waiver to be effective it must be clearly established that there was ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464 .” The facts of this case do not clearly establish that West Virginia has ever intentionally abandoned a known right; we can, therefore, find no waiver here.

2019The Court cautioned, however, that "waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' " Edwards , 451 U.S. at 482 , 101 S.Ct. 1880 .

2019The Court cautioned, however, that "waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' " Edwards , 451 U.S. at 482 , 101 S.Ct. 1880 .

1999See, e.g., Commonwealth v. Garrett, 439 Pa. 58 , 266 A.2d 82, 83 (1970); Commonwealth v. Norman, 447 Pa. 217 , 285 A.2d 523, 526 (1971); Commonwealth v. Vega, 553 Pa. 255 , 719 A.2d 227, 230 (1998).

1999See, e.g., Commonwealth v. Garrett, 439 Pa. 58 , 266 A.2d 82, 83 (1970); Commonwealth v. Norman, 447 Pa. 217 , 285 A.2d 523, 526 (1971); Commonwealth v. Vega, 553 Pa. 255 , 719 A.2d 227, 230 (1998).

2025(See Dissenting Op. at 7 (Dougherty, J. dissenting) (citing Blakely v. Washington, 542 U.S. 296, 310 (2004); Peretz v. United States, 501 U.S. 923, 936 (1991)).) “The waiver of a constitutional right must be an intentional relinquishment or abandonment of a known right or privilege.” Commonwealth v. Newman, 285 A.2d 523, 526 (Pa. 1971) (internal quotations omitted).

2025(See Dissenting Op. at 7 (Dougherty, J. dissenting) (citing Blakely v. Washington, 542 U.S. 296, 310 (2004); Peretz v. United States, 501 U.S. 923, 936 (1991)).) “The waiver of a constitutional right must be an intentional relinquishment or abandonment of a known right or privilege.” Commonwealth v. Newman, 285 A.2d 523, 526 (Pa. 1971) (internal quotations omitted).

2022“After the Sixth Amendment right to counsel attaches, it does not depend upon any further request by the defendant.” Commonwealth v. Hill, 42 A.3d 1085, 1091 (Pa. Super. 2012) (citation omitted).

2015Commonwealth v. Szekeresh, 515 A.2d 605, 607 (Pa. Super. 1986) (citations omitted), appeal denied, 529 A.2d 1080 (Pa. 1987).

2013“All necessary requirements for a knowing and intelligent waiver of a jury trial are present if the trial court conducts an on-the-record colloquy, including the essential elements of a trial, and the defendant has signed a written waiver.” Commonwealth v. Dunn, 424 Pa.Super. 521 , 623 A.2d 347, 348 (1993). “[I]n a jury waiver colloquy a defendant must be informed of the essential protections in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.” Quarles, 456 A.2d at 191 .

2013“All necessary requirements for a knowing and intelligent waiver of a jury trial are present if the trial court conducts an on-the-record colloquy, including the essential elements of a trial, and the defendant has signed a written waiver.” Commonwealth v. Dunn, 424 Pa.Super. 521 , 623 A.2d 347, 348 (1993). “[I]n a jury waiver colloquy a defendant must be informed of the essential protections in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.” Quarles, 456 A.2d at 191 .

2004See also Brewer, 430 U.S. at 403-404 , 97 S.Ct. 1232 (describing heavy burden on Commonwealth to establish waiver of Sixth Amendment right to counsel and indicating “that it was incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege’ ” to establish waiver) (citation omitted).

2004See also Brewer, 430 U.S. at 403-404 , 97 S.Ct. 1232 (describing heavy burden on Commonwealth to establish waiver of Sixth Amendment right to counsel and indicating “that it was incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege’ ” to establish waiver) (citation omitted).

2000In Cleckley , this Court described the genesis of the voluntariness focus in the Fourth Amendment context, and the rationale supporting a departure from a waiver construct requiring "an intentional relinquishment or abandonment of a known right or privilege,” see Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938); reviewed the determination in Schneckloth, 412 U.S. at 235-36 , 93 S.Ct. at 2051-52 , to the effect that, while the waiver analysis appropriately applies to safeguard constitutional guarantees involving the preservation of a fair trial of criminal defen

2000In Cleckley , this Court described the genesis of the voluntariness focus in the Fourth Amendment context, and the rationale supporting a departure from a waiver construct requiring "an intentional relinquishment or abandonment of a known right or privilege,” see Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938); reviewed the determination in Schneckloth, 412 U.S. at 235-36 , 93 S.Ct. at 2051-52 , to the effect that, while the waiver analysis appropriately applies to safeguard constitutional guarantees involving the preservation of a fair trial of criminal defen

2000This Court enunciated an essentially equivalent set of principles in Commonwealth v. Jones, 474 Pa. 364, 373 , 378 A.2d 835, 840 (1977), a decision which preceded Mendenhall ; the Court specifically endorsed the pertinent principles from Mendenhall/Royer in Commonwealth v. Matos, 543 Pa. 449, 457-58 , 672 A.2d 769, 773-74 (1996). [3] In Cleckley , this Court described the genesis of the voluntariness focus in the Fourth Amendment context, and the rationale supporting a departure from a waiver construct requiring "an intentional relinquishment or abandonment of a known right or privilege," see

2000This Court enunciated an essentially equivalent set of principles in Commonwealth v. Jones, 474 Pa. 364, 373 , 378 A.2d 835, 840 (1977), a decision which preceded Mendenhall ; the Court specifically endorsed the pertinent principles from Mendenhall/Royer in Commonwealth v. Matos, 543 Pa. 449, 457-58 , 672 A.2d 769, 773-74 (1996). [3] In Cleckley , this Court described the genesis of the voluntariness focus in the Fourth Amendment context, and the rationale supporting a departure from a waiver construct requiring "an intentional relinquishment or abandonment of a known right or privilege," see