# Commonwealth v. Davido > Supreme Court of Pennsylvania · February 25, 2005 · 582 Pa. 52 URL: https://www.frixlaw.com/law-library/cases/9762224 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Tedor DAVIDO, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** February 25, 2005 - **Citations:** 582 Pa. 52; 868 A.2d 431; 2005 Pa. LEXIS 361 - **Precedential status:** Published - **Opinion:** Concurrence by Saylor - **Judges:** Cappy, Castille, Nigro, Newman, Saylor, Lamb, Eakin, Former - **Cited by:** 101 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/9762224 ## How later opinions describe it (automated extraction) - holding that the trial court properly denied the defendant’s equivocal request to proceed pro se, where the request was posed as a “bargaining device,” and the defendant’s only alternative if the court declined his request for the appointment of new counsel - holding appellant did not invoke Sixth Amendment right of self-representation where he wrote pre-trial letter to court seeking new counsel or permission to retain private counsel due to difficulties with current counsel; appellant's request to proceed pro se was posed only as … - observing that questions of inconsistent testimony and improper motive are credibility determinations within province of factfinder - finding that it is up to -7- J-S62034-14 the trial court to ensure that a proper colloquy is performed where a defendant has invoked his right to self-representation - declining to recognize a “justifiable detention because of the asserted need for greater police powers to combat the war on drugs” ## Opinion text Justice SAYLOR concurring. I join the majority opinion, subject to a modest difference in the approach to Appellant’s claim related to his request to proceed pro se at trial. In concluding that Appellant’s assertion of his desire for self-representation was equivocal, the majority relies on three factors: 1) that the request was posed in the alternative to a request for substitute counsel; 2) that Appellant did not further pursue the request subsequent to its denial by the trial court at a pre-trial hearing; and 3) that Appellant ultimately withdrew the request. See Majority Opinion, at 65-67, 868 A.2d at 439-40. Respecting the first ground, the prevailing view in other jurisdictions, with which I concur, is that the conditional aspect of the assertion of a desire to proceed pro se, posed as an alternative to a request for substitute counsel, does not render the request equivocal. 1 *83 The second factor, that Appellant failed to pursue his request for self-representation after the trial court had specifically and unambiguously denied it, seems to me to carry very little (if any) weight. In my view, as of the time that the trial court made its initial ruling, Appellant presented a sufficiently clear and unequivocal (albeit conditional) request for self-representation to implicate the constitutional concerns identified in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975). Indeed, I believe that the only circumstance cited by the majority that undercuts Appellant’s present position is his affirmative withdrawal of the self-representation request on the eve of trial, in the following exchange: THE COURT: ... And 1 thought that, after you started seeing what was going on in the case, you would probably agree that you would be far better off having attorneys to represent you rather than you representing yourself. So at this time, do you still wish to represent yourself, or do you want Mr. Gratton and Mr. Spahn [the public defenders] to represent you at this time? [Appellant]: Your Honor, you were correct in allowing me to keep Mr. Gratton, and I wish him to represent me. N.T. 11/28/01 at 2. In my view, this withdrawal brings the matter squarely within a line of the abandonment/waiver decisions, 2 which I find to be the preferable rationale to support the disposition here. *84 As noted, I join the balance of the majority’s reasoning relative to the remaining issues presented. . See, e.g., Wilson v. Walker, 204 F.3d 33 , 38 n. 3 (2d Cir.2000) (" ‘[A] defendant is not deemed to have equivocated in his desire for self-representation merely because he expresses the view in the alternative, simultaneously requests the appointment of new counsel, or use[s] it as a threat to obtain private counsel.’ " (quoting Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir.1994))); Adams v. Carroll, 875 F.2d 1441, 1445 (9th Cir.1989) (same); State v. Blom, 682 N.W.2d 578, 613 (Minn.2004) ("[A] motion for self-representation is not equivocal simply because it is made as an alternative plan in case the court does not grant a defendant’s motion for a different attorney.”); Gallego v. State, 117 Nev. 348 , 23 P.3d 227, 236 (2001) (same, and opining that the correct procedure is for the trial court to deny the request for substitute counsel (where warranted) and ascertain whether the defendant's wish to represent himself remains extant in light of the fulfillment of the condition); State v. Brown, 342 Md. 404 , 676 A.2d 513 , 519 n. 5 (1996); State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990) ("The case law is clear that ‘[a] request to proceed pro se is not equivocal merely because it is an alternative position, advanced as a fall-back to a primary request for different counsel.' ” (citations omitted)). . See, e.g., Wilson, 204 F.3d at 37-39 (finding waiver subsequent to a clear and unequivocal assertion of the right of self-representation); Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (“The present case presents an example of waiver through subsequent conduct after an initial request.”); United States v. Kennedy, 564 F.2d 1329, 1340 (9th Cir.1977) (holding, in a similar situation, that “the request [to proceed pro sel was withdrawn and the right consciously and knowingly waived”); cf. Williams v. State, 655 P.2d 273, 275 (Wyo.1982) (finding waiver of a prior assertion of the right of self representation through continued use of counsel); Tucker v. State, 92 Nev. 486 , 553 P.2d 951, 954 (1976) (recognizing that a defendant waives his right to self-representation where he accepts and acquiesces in representation by a court-appointed attorney). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762224. Public record. Not legal advice.