# Commonwealth v. Ratsamy > Supreme Court of Pennsylvania · November 20, 2007 · 594 Pa. 176 URL: https://www.frixlaw.com/law-library/cases/9754119 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellant v. Robert RATSAMY, Appellee - **Court:** Supreme Court of Pennsylvania - **Decided:** November 20, 2007 - **Citations:** 594 Pa. 176; 934 A.2d 1233; 2007 Pa. LEXIS 2433 - **Precedential status:** Published - **Opinion:** Concurrence by Baer - **Judges:** Cappy, Castille, Saylor, Eakin, Baer, Baldwin, Fitzgerald - **Cited by:** 271 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754119 ## How later opinions describe it (automated extraction) - finding that appellant possessed crack cocaine with intent to deliver where he possessed a large quantity of unused plastic bags, and an expert testified that the circumstances surrounding the - 12 - J -S05027-17 appellant's possession of the crack cocaine, including the amoun… - concluding that appellant possessed crack cocaine with intent to deliver where he possessed a large quantity of unused zip-lock bags, and an expert testified -7- J-S10044-14 possession of the crack cocaine, including the amount and the form of the drug, established that he int… - holding that factors auguring in favor of a finding of intent to deliver include individualized packaging of the narcotics, the presence of unused baggies, expert testimony, the defendant’s possession of a handgun, and the absence of drug paraphernalia related to personal use - explaining that on review for a sufficiency challenge, an appellate court must determine whether, viewing the evidence in the light most favorable to the verdict winner, it was sufficient to establish all of the elements of the offense beyond a reasonable doubt - explaining that quantity is not dispositive in determining whether drugs were possessed with intent to deliver; other factors relevant to intent include the behavior of the defendant, the presence of large sums of cash, and expert testimony ## Opinion text Justice BAER, Concurring. I join the substance of the Majority Opinion in full, but write separately to distance myself from its response to the Dissenting Opinion’s call for a remand regarding Defendant Robert Ratsamy’s entitlement to counsel. The Majority suggests that we need not address the issue because it was not raised before this Court. The Majority’s conclusion, however, hits at the very heart of the potential fundamental unfairness of the present situation: Defendant has no counsel to raise the issue because this Court granted his attorney’s petition to withdraw, but nevertheless Defendant is charged with failing to raise such issue. Nonetheless, I conclude that a remand is unnecessary in this case because Defendant was provided with notice of the withdrawal of his counsel, and the potential consequences thereof. I believe that the notice ameliorates my considerable concern for fundamental fairness were this Court to permit a party’s counsel to withdraw without ensuring that the party was aware of the withdrawal. The facts of this case place Defendant in an apparent gap in the law that otherwise provides indigent criminal defendants with a right or entitlement to counsel at all stages of litigation and a formalized procedure to waive the right or entitlement to counsel on the record. As noted by the Dissenting Opinion, Defendant had appointed counsel in the proceedings before the trial court. He retained private counsel in his appeal to the Superior Court, which granted him relief, reversing his conviction in October 2005. After this Court granted the Commonwealth’s petition for review in December 2006, retained counsel petitioned to withdraw claiming that he was retained solely to represent Defendant on his appeal to the Superior Court and had not been compensated to represent him in the Commonwealth’s appeal to this Court. Based on *186 these assertions, we granted retained counsel leave to withdraw on May 18, 2007. Subsequently, this Court’s Prothonotary ascertained Defendant’s address, given his release from prison following the Superior Court’s decision. 1 Indeed, the Prothonotary’s office evidently spoke to Defendant by telephone, as evidenced by a subsequent letter, which provided: I write as a follow-up to our phone conversation of June 6, 2007. As we discussed, the Court allowed your attorney to withdraw from your case before a brief was submitted on your behalf. As a result, you must immediately retain new counsel or [advise] this office that you will proceed pro se in this matter. It is imperative that you make a decision quickly since the brief on your behalf is currently due. Please note that you do not have the ability to discontinue or withdraw this matter because the appeal was filed by the Commonwealth. Letter from Deputy Prothonotary John W. Person, June 8, 2007. The Prothonotary requested a response by June 13, 2007. When Defendant did not respond, the Prothonotary submitted the case on June 25, 2007 on the brief filed by the Commonwealth, opening the way to this Court’s decision today. Based on Defendant’s apparent lack of response to the above letter and his failure to request the appointment of counsel, I join the Majority’s rejection of the remand called for by the Dissent, despite the seeming incongruity of the present situation where the defendant has a potential entitlement to counsel both before and after the proceedings before this Court, but not during these proceedings. It is beyond cavil that an indigent defendant has a federal constitutional right to be provided counsel at trial and on any direct appeal as of right. Ross v. Moffitt, 417 U.S. 600, 610 , 94 S.Ct. 2437 , 2443- *187 2444, 41 L.Ed.2d 341 (1974). The High Court, however, has concluded that a state is not constitutionally required to provide counsel to the indigent for purposes of discretionary appeal. Id. The federal analysis, however, does not end our consideration of Defendant’s entitlement to counsel. Under Pa. R.Crim.P. 122, 2 we have held that an indigent defendant in Pennsylvania is entitled to the assistance of counsel in seeking allowance of appeal. Commonwealth v. Liebel, 573 Pa. 375 , 825 A.2d 630 (2003). Moreover, under Rule 122, when counsel is appointed, the appointment is effective through all proceedings on direct appeal including proceedings before this Court following the grant of discretionary appeal. Pa.R.Crim.P. 122(B)(2). The rule, however, does not address the instant situation in which Defendant did not have appointed counsel on appeal to the Superior Court but rather retained counsel, the same counsel that we permitted to withdraw. Thus, the fact that Defendant once retained counsel appears, for want of a more particular rule, to entitle Defendant to less counsel than if he had appointed counsel throughout the proceedings, *188 without regard to whether he still has adequate resources to retain new counsel. Notably, following disposition of any discretionary appeal in this Court, Defendant’s entitlement to counsel re-emerges, assuming his indigence, under our rules of procedure governing collateral review under the Post Conviction Relief Act. Pa.R.Crim.P. 904. 3 As under the rules for direct review, any appointment of counsel continues through the exhaustion of the PCRA process. Pa.R.Crim.P. 904(F)(2). Moreover, wherever there is an entitlement to counsel, either constitutional or rule-based, there is generally a formal procedure in place designed to ensure that any waiver of the right or entitlement is voluntary, knowing, and intelligent. See Pa.R.Crim.P. 121 (“When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary, and intelligent waiver of counsel.”); Pa.R.Crim.P. 904(H)(1) (providing that the PCRA judge shall appoint counsel for the purpose of post-conviction collateral review in a capital ease, unless the judge determines that the defendant knowingly, intelligently, and voluntarily waived that entitlement). I additionally have little doubt that a PCRA *189 court presented with counsel’s withdrawal in a non-capital case similarly would conduct a hearing or colloquy on the record to determine how a defendant would like to proceed. Faced with a gap in a defendant’s entitlement to counsel during the discretionary appeal before this Court and the absence of any formalized procedure to determine whether the defendant wishes to represent himself, retain counsel, or request appointed counsel, I recommend the Criminal and Appellate Rules Committees consider whether a rule or rules should be drafted to protect a defendant’s interests in the event that retained counsel withdraws during a discretionary appeal to this Court. Nonetheless, in the present case, I am able to join the Majority Opinion on the merits because the actions of our Court’s' Prothonotary in this case render these unusual proceedings harmless to Defendant’s interests. . Given the nature of our Prothonotary's role within a case, obviously many of its communications are not introduced, docketed, or otherwise formally made "of record.” Nevertheless, they are kept with this Court's publically accessible file in this case, and are essential to a determination that Defendant's fundamental rights were protected. . Rule 122. Appointment of Counsel (A) Counsel shall be appointed: (1) in all summary cases, for all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed; (2) in all court cases, prior to the preliminary hearing to all defendants who are without financial resources or who are otherwise unable to employ counsel; (3) in all cases, by the court, on its own motion, when the interests of justice require it. (B) When counsel is appointed, (1) the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries); and (2) the appointment shall be effective until final judgment, including any proceedings upon direct appeal. (C) A motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons. . Rule 904. Entry of Appearance and Appointment of Counsel; In Forma Pauperis sjs H* sjs (C) Except as provided in paragraph (H), when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first petition for post-conviction collateral relief. (D) On a second or subsequent [PCRA] petition, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required as provided in Rule 908, the judge shall appoint counsel to represent the defendant. (E) The judge shall appoint counsel to represent a defendant whenever the interests of justice require it. (F) When counsel is appointed, -}■ V V (2) the appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754119. Public record. Not legal advice.