Right to Self-Representation; Limitations Absent Waiver

Commonwealth v. Tighe, 184 A.3d 560 (Pa. Super. 2018), allocatur granted Oct. 15, 2018, appeal docket 57 MAP 2018

The Pennsylvania Supreme Court granted allocatur to review a matter of first impression decided by Superior Court, to wit: where Tighe was representing himself with assistance of standby counsel, did the trial court violate his right to self-representation when it granted the Commonwealth’s motion to prohibit Tighe from cross-examining personally the victim of his sexual assault and instead directed Tighe to provide standby counsel with the questions he wished to ask, where Tighe conducted all other aspects of his defense. Superior Court, in an opinion authored by Judge Bowes for a panel including Judges Olson and Ransom, concluded that the restriction did not impermissibly infringe on Tighe’s right to self-representation and that the trial court did not err, and affirmed Tighe’s convictions but vacated and remanded for resentencing for reasons unrelated to the allocatur grant.

Tighe was convicted after a jury trial of rape, involuntary deviate sexual intercourse and sexual assault of a 15-year-old girl, J.E. The facts underlying Tighe’s convictions are not germane to the allocatur grant and will not be repeated here, but are summarized on pages 1-3 of the slip opinion. As to the trial court’s order requiring Tighe to cross examine J.E. through written questions provided to and asked by standby counsel, the relevant facts are as follows: While free on bail, Tighe contacted J.E. and asked her “Why are you doing this to me? I didn’t hurt you. Please don’t put me in jail for life.” Thereafter, the Commonwealth moved to prevent Tighe from personally examining J.E., and, after a hearing at which J.E. testified regarding the call and that it scared her, the trial court granted the motion and required Tighe to provide standby counsel with the questions Tighe wished to ask at trial and directed counsel to ask the questions.

Following his conviction, Tighe appealed. Before addressing Tighe’s eleven issues, Superior Court first noted a caution to appellate practitioners regarding presentation of a large number of issues, citing Judge Aldisert’s observations as quoted in Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004).

Tighe’s argument on appeal boiled down to the proposition that his right to representation, including his right to self-representation if he so chooses, necessarily includes the right to act as attorney for all purposes and cannot be limited.  Superior Court began its review by looking at decisions involving the right of confrontation under the Sixth Amendment. The first, Maryland v. Craig, 497 U.S. 836 (1990), upheld a Maryland statute that permitted a judge to present the testimony of a child abuse victim to the jury via one-way closed-circuit television where the judge determined that testifying in the courtroom would “result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” Id. at 841 (quoting statute). If applicable, the statute allowed the witness to testify in a separate room with only the prosecutor and defense counsel present. The judge, jury, and defendant remained in the courtroom, where a monitor would relay the testimony, with the defendant remaining in communication with defense counsel through electronic means. The child witness and the defendant could not see each other.

The court also relied upon Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995) (en banc), where, the court held that a pro se defendant properly could be prevented from cross-examining the child victims where the defendant conceded that the motivation for representing himself was to cross-examine the victims. The Fourth Circuit noted that the purpose of self-representation was “to allow the defendant ‘to affirm [his] dignity and autonomy’ and to present what he believes is his ‘best possible defense.’” Id. at 1035 (citation omitted). While recognizing that defendant’s dignity and autonomy were limited by the restriction the court held that the restriction only slightly reduced his ability to present his chosen defense where “he could have personally presented his defense in every other portion of the trial and could even have controlled the cross-examination by specifying the questions to be asked.” Id. at 1035-36. Essentially, the Fourth Circuit determined that as Craig held that the interest in the physical and psychological well-being of child abuse victims could outweigh the right to face-to-face confrontation, it followed that the right to self-representation could be limited for the same reason.

Superior Court concluded that the principles announced in Craig should be adopted in Pennsylvania as a permissible restriction on the self-representation right. The court further addressed Tighe’s argument that the right to self-representation is an absolute right that cannot be limited and concluded that his right to cross-examine J.E. was met in a broad sense and was limited only in the narrow sense that he was not allowed to personally ask the questions. Tighe’s reliance on Commonwealth v. Davido, 868 A.2d 431, 438 n.12 (Pa. 2005) (“In fact, requiring counsel to take further action on a defendant’s behalf after the defendant has requested to proceed pro se would undermine the Sixth Amendment right to self representation.”) and  Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012) (“[A] defendant’s choice to proceed pro se must be honored out of that respect for the individual which is the lifeblood of the law even when the defendant acts to his or her own detriment.”) (internal quotation marks and citation omitted) was equally unavailing as the court concluded that those citations involved “markedly different” circumstances. Relying on Fields, the court concluded that if the constitutional right of confrontation can be limited based on emotional trauma to the victim, then the same interest serves to justify the restriction imposed on Tighe.

The court addressed the remaining issues regarding Tighe’s convictions and concluded they were without merit. However, the court concluded that some of Tighe’s claims regarding his sentencing did have merit. The court vacated Tighe’s designation as a sexually violent predator, vacated his sentence and remanded for resentencing. Tighe sought review by the Supreme Court, which granted his allocatur petition limited to the following issues:

(1) In an issue of first impression, after a knowing, voluntary and intelligent Faretta colloquy where the trial court approves the right of self-representation during a criminal trial, whether the trial court can thereafter limit or deny the guaranteed right to self-representation by forcing standby counsel to participate during the trial for reasons other than waiver or forfeiture of that right?

(2) Whether the Superior Court disregarded the limits set for standby counsel by Pennsylvania Rule of Criminal Procedure 121(D) and legal precedent reached in Commonwealth v. Spotz, 47 A.3d 63 (Pa. 2012), by authorizing standby counsel to participate during trial before jury over the objections of the accused and absent waiver or forfeiture of the accused’s right to self-representation?

(3) Whether it was sufficiently established that the minor victim would suffer emotional trauma making her unable to reasonably communicate if questioned by the accused during trial thereby making it necessary to deny and/or limit the right to self-representation?

For more information, contact Kevin McKeon or Dennis Whitaker.