knowing and voluntary waiver in Pennsylvania

2022“In order to effectuate a knowing and voluntary waiver in Parole Board cases, all that is required is for the Board to show that it followed its own regulations and provided the necessary information to the offender prior to the offender signing the written waiver form.” Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257, 261 (Pa. Cmwlth. 2008).

2018In response, the Board asserts that, in order to effectuate a knowing and voluntary waiver, “all that is required is for the Board to show that it followed its own regulations and provided the necessary information to the offender prior to the offender signing the written waiver form.” Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257, 261 (Pa. Cmwlth. 2008).

2023The only time a PCRA petitioner should appear pro se at an evidentiary hearing is if he has made a knowing and voluntary waiver of his right to counsel pursuant to Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a waiver of the right to counsel is sought at the post- conviction and appellate stages, an on-the-record determination should be made that the waiver is a knowing, intelligent, and voluntary one.”).

2023Critically, the only time a PCRA petitioner should appear pro se at an evidentiary hearing is if he has made a knowing and voluntary waiver of his right to counsel pursuant to Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a waiver of the right to counsel is sought at the post- conviction and appellate stages, an on-the-record determination should be made that the waiver is a knowing, intelligent, and voluntary one.”).

1993Superior Court then noted that in Pennsylvania, there is a constitutional right of appeal pursuant to the Pennsylvania Constitution 1 and the right to an attorney in a criminal case. 2 Additionally, the United States Supreme Court has ruled that a defendant has the right to self-representation in a criminal proceeding, which he may exercise by a knowing and voluntary waiver of his right to counsel, Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975).

1993Superior Court then noted that in Pennsylvania, there is a constitutional right of appeal pursuant to the Pennsylvania Constitution 1 and the right to an attorney in a criminal case. 2 Additionally, the United States Supreme Court has ruled that a defendant has the right to self-representation in a criminal proceeding, which he may exercise by a knowing and voluntary waiver of his right to counsel, Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975).

2024In support of this claim, Appellant relies upon the Pennsylvania Supreme Court’s opinion in Commonwealth v. Gibbs, 553 A.2d 409 (Pa. 1989) and our opinion in Commonwealth v. Morgan, 606 A.2d 467 (Pa. Super. 1992), both of which held that the “waiver of a right based upon a false promise [by the police] cannot be fairly accepted as a knowing and voluntary waiver” of that right.

2024See Morgan, 606 A.2d at 469 .

2018The United States Supreme Court has refined these rules by holding "that, after a knowing and voluntary waiver of Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." Davis v. United States, 512 U.S. 452, 462 (1994).

2016It held that “after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” Id. at 461 (emphasis added).

2009See Roblyer v. Pa. Bd. of Prob. & Parole, [ 148 Pa.Cmwlth. 107 , 609 A.2d 884 (1992)] (waiver of counsel); Wile, Pennsylvania Law of Probation and Parole, § 13:25 (2d. ed. 2003).

2009See Roblyer v. Pa. Bd. of Prob. & Parole, [ 148 Pa.Cmwlth. 107 , 609 A.2d 884 (1992)] (waiver of counsel); Wile, Pennsylvania Law of Probation and Parole, § 13:25 (2d. ed. 2003).

1970See Commonwealth v. Stewart, 435 Pa. 449 , 257 A. 2d 251 (1969) ; Commonwealth v. Magee, 436 Pa. 57 , 258 A. 2d 627 (1969). *40 The judgment of the Court of Common Pleas of Blair County is reversed and the record is remanded so that Learner may, with the assistance of counsel, file post-trial motions as though timely filed.

1969See Common *59 wealth v. Stewart, 435 Pa. 449 , 257 A. 2d 251 (1969).

1970See Commonwealth v. Stewart, 435 Pa. 449 , 257 A. 2d 251 (1969) ; Commonwealth v. Magee, 436 Pa. 57 , 258 A. 2d 627 (1969). *40 The judgment of the Court of Common Pleas of Blair County is reversed and the record is remanded so that Learner may, with the assistance of counsel, file post-trial motions as though timely filed.

1969See Common *59 wealth v. Stewart, 435 Pa. 449 , 257 A. 2d 251 (1969).

2009DISCUSSION In its seminal decision in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the United States Supreme Court held that, prior to being subjected to a “custodial interrogation,” an individual must make a knowing and voluntary waiver of his privilege against self-incrimination and right to counsel.

2009DISCUSSION In its seminal decision in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the United States Supreme Court held that, prior to being subjected to a “custodial interrogation,” an individual must make a knowing and voluntary waiver of his privilege against self-incrimination and right to counsel.

1994Faretta v. California, 422 U.S. 806, 834-36 , 95 S.Ct. 2525, 2540-42 , 45 L.Ed.2d 562, 581-82 (1975) (right to self-representation at trial emanates from the Sixth Amendment); Commonwealth v. Ellis, 534 Pa. at 178-79 , 626 A.2d at 1138 ; Commonwealth v. Monica, 528 Pa. 266 , 597 A.2d 600 (1991); Commonwealth v. Davis, 479 Pa. 274, 276-77 , 388 A.2d 324, 325 (1978); Pa.R.Crim.P. 318 (procedure for waiver of counsel).

1994Faretta v. California, 422 U.S. 806, 834-36 , 95 S.Ct. 2525, 2540-42 , 45 L.Ed.2d 562, 581-82 (1975) (right to self-representation at trial emanates from the Sixth Amendment); Commonwealth v. Ellis, 534 Pa. at 178-79 , 626 A.2d at 1138 ; Commonwealth v. Monica, 528 Pa. 266 , 597 A.2d 600 (1991); Commonwealth v. Davis, 479 Pa. 274, 276-77 , 388 A.2d 324, 325 (1978); Pa.R.Crim.P. 318 (procedure for waiver of counsel).

2025See Smith, supra. After appearing to silently read the waiver form and asking questions that indicated he understood the contents of the form, Taylor stated, “I’m willing to talk to you about the incident” and told Trooper McCormack what he thought was happening prior to the trooper asking questions about the incident, showing an intent to waive his rights.

2016Commonwealth v. Dosch, 501 A.2d 667, 670 (Pa. Super. 1985) (internal quotation marks and citations omitted) (holding the defendant’s knowing and voluntary waiver of post-trial review in one case, as part of a plea bargain in a separate case, was valid).

2010Commonwealth v. Pruett, 597 Pa. 307, 313 , 951 A.2d 307, 318 (2008).

2010Commonwealth v. Pruett, 597 Pa. 307, 313 , 951 A.2d 307, 318 (2008).

2010See Schultz, 707 A.2d at 520 (“While, in retrospect, appellant may believe her failure to testify prejudiced her, the fact remains that appellant’s decision was fully informed and voluntary.

2008In distinguishing further between competence and what is required for a knowing and voluntary waiver, the court noted that “even assuming that self-representation might pose special trial-related difficulties, the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Indiana, 128 S.Ct. at 2384 . (emphasis in original) “[A] criminal defendant’s ability to represent himself has no bearing upon his competence to choose self-representation.” Godinez, 509 U.S. at 400 ; see also, Commonwealth v

2008In distinguishing further between competence and what is required for a knowing and voluntary waiver, the court noted that “even assuming that self-representation might pose special trial-related difficulties, the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Indiana, 128 S.Ct. at 2384 . (emphasis in original) “[A] criminal defendant’s ability to represent himself has no bearing upon his competence to choose self-representation.” Godinez, 509 U.S. at 400 ; see also, Commonwealth v

2000Commonwealth v. Hughes, 521 Pa. 423, 443 , 555 A.2d 1264, 1274 (1989).

2000Commonwealth v. Hughes, 521 Pa. 423, 443 , 555 A.2d 1264, 1274 (1989).