What Does the Interpretation of Rule 318 and the Comment to It Say About the Formal Questioning and Examination of the Defendant ?
In Commonwealth v. Payson, 1999 PA Super 4, 723 A.2d 695 (Pa. Super. 1999), the defendant, who failed to retain private counsel after being deemed ineligible for free representation through the public defender, entered a pro se, non-negotiated guilty plea, during which the Commonwealth conducted the waiver of counsel colloquy.
Appellant signed a supplemental form explaining and verifying that he understood his guilty plea rights, however, there was no other information relevant to a waiver of trial counsel.
Following sentencing, the defendant was advised of his post-trial rights by the Commonwealth and, once again, signed a supplemental form containing no additional information regarding a waiver of appellate counsel.
The Payson court stated:
Several cases decided in the ensuing thirteen years ... have interpreted Rule 318 more strictly than the Comment and have rendered its approach insufficient.
The law is now clear that the trial judge must conduct the colloquy and in doing so must formally question the defendant on the six listed areas.
The Comment to Rule 318 states:
Although it is advisable that the judge or issuing authority should conduct the examination of the defendant, the rule does not prevent the attorney for the Commonwealth or an already-appointed or retained defense counsel from conducting all or part of the examination of the defendant....Id. at 701.