
    Commonwealth, v. Cohen, Appellant, et al.
    Argued May 4, 1936.
    Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.
    
      'William A. Gray, for appellant.
    
      John A. Boyle, Assistant District Attorney, with him Charles F. Kelley, District Attorney, for appellee.
    July 10, 1936:
   Opinion by

James, J.,

Appellant, Tillie Cohen, was charged in ten indictments with certain disorderly and immoral offenses. Mike Cohen—no relation to appellant—was charged in nine indictments with certain immoral offenses growing out of and related to the offenses charged against appellant. Both defendants were called for trial on all indictments on February 19, 1936, and from the record it appears as follows: “Mathew K. Stevens, Esq. for Mike Cohen. (Defendant Tillie Cohen not represented).” On behalf of Mike Cohen, Mr. Stevens’ motion for a continuance, to which objection was made by the Commonwealth, was refused. Counsel then called upon the Commonwealth to elect upon which indictment it desired to try Mike Cohen stating, “I only represent Mike Cohen in this matter.” Mr. Stevens again moved for a continuance and a severance only as to Mike Cohen, which motions were refused.

At the conclusion of the Commonwealth’s case, the following discussion appears: “......The Court: You mean that you will not put your client on the stand? Mr. Stevens: No, sir. The Court: All right. Let it go to the jury. By the way, you do not represent Tillie Cohen, do you? Mr. Stevens: No, sir. The Court: Do you want to go on the stand? (Addressing defendant, Tillie Cohen.) You do not want to go on the stand. Put that on the record.” Both defendants were convicted on all bills. Motions for a new trial and arrest of judgment were filed by Mr. Stevens, and upon the argument the following colloquy took place: “The Court: How about Tillie? Mr. Stevens: I do not represent Tillie. The Court: Why you represented Tillie Cohen for years? Mr. Stevens: For ten years—well, I would not say ten, I would say about nine years. The Court: Isn’t it true that anybody might infer that it was a piece of strategy on your part to make that motion, saying that you represent Mike Cohen and not your old client Tillie at the time of trial, when as a matter of fact, you represented both? Mr. Stevens: No, sir; I do not represent both. If yonr Honor please, I have not represented Tillie Cohen for the last two years.” Sentence was imposed upon both, Tillie Cohen being sentenced upon indictment No. 617, February Sessions 1936, on the charge of pandering. Tillie Cohen alone appeals.

The assignments of error, which are important on this appeal, are the following: (1) The learned court below erred in failing to inform appellant of her right to be represented by counsel and to subpoena witnesses in her behalf; (2) the learned court below erred in failing to afford appellant an opportunity to obtain counsel and to subpoena witnesses in her behalf, and (3) the learned court below erred in failing to appoint counsel for appellant. This question was before us in the recent case of Com. v. Valerio, 118 Pa. Superior Ct. 34, 36, 178 A. 509, where we said: “We held in the case of Commonwealth v. Richards, 111 Pa. Superior Ct. 124, 169 A. 464 ......‘It is the duty of the judge presiding at the trial of a criminal prosecution to inform a defendant, who appears without counsel, that he has a right, under Section 9 of Article I of the Constitution of Pennsylvania, to be heard by himself and his counsel and to subpoena witnesses who might testify for him. The failure of the court to so inform him, or to appoint counsel for him, is fundamental error.’

“As stated in said opinion, ‘The right to be represented by counsel is a fundamental right, going to the very basis of the administration of criminal law, and places on the trial judge the onus to inform the defendant of his rights and to assist him in obtaining the benefits of those rights. The failure of the court to inform him of his rights amounts to a denial of the right.’ ”

In his opinion the trial judge set forth the criminal record of appellant, from which he concluded she was aware of her legal rights. In addition the trial judge was influenced by tbe fact that tbe attorney representing Mike Cohen bad represented tbe appellant for tbe same offences on other occasions, and substantially represented both defendants at tbe trial. Tbe mere fact that appellant employed Mr. Stevens on other occasions did not warrant tbe court in inferring be represented appellant at this trial, as tbe record is replete with instances which showed be was not her counsel and made no effort to protect her interests. From tbe opening of tbe trial until its close, numerous exceptions were noted for Mike Coben, but none on behalf of appellant. Tbe duty of tbe trial judge in a criminal case to inform a defendant, who appears without counsel, that be has a right to be beard by himself and bis counsel and subpoena witnesses, who might testify for him, is not limited by tbe age or experience of tbe accused nor by tbe gravity of tbe offense; it applies with equal force to every defendant in a criminal prosecution who appears without counsel. Nor are we persuaded that “a well conceived plan of procedure was evolved to create a condition unsupported by honest foundations.” Had counsel for Mike Coben or appellant bad such a plan in mind, it could easily have been thwarted by tbe trial judge in informing appellant of her rights. That appellant was without counsel, clearly appeared at tbe opening of tbe trial, was repeated during tbe preliminary motions, and fully recognized at tbe close of tbe trial. In view of tbe fact that tbe evidence fully warranted tbe conviction, we regretfully reach tbe conclusion that tbe failure of tbe trial judge to inform appellant of her right to be beard by counsel was a fundamental error and these assignments must be sustained and a new trial granted.

In view of our conclusion that a new trial must be granted, we need not discuss assignments of error four or five, relating to tbe refusal of tbe court below to grant a severance and to withdraw a juror on account of certain improper remarks made to the jury by the prosecuting attorney during his closing address. As to the latter assignment, it may not be amiss, to say that as a quasi judicial officer, a more modified type of appeal would be more consistent with his functions. As to the sixth assignment of error, we are convinced that the record fully warranted a conviction on the indictment upon which appellant was sentenced.

Judgment reversed and a new trial granted.  