Com. v. Lucarelli

971 A.2d 1173

COMMONWEALTH of Pennsylvania, Appellant v. Charles Joseph LUCARELLI, Appellee.

No. 76 MAP 2007.

Supreme Court of Pennsylvania.

Argued May 13, 2008.

Decided May 27, 2009.

Gary Eugene Norton, Esq., Bloomsburg, for Commonwealth of Pennsylvania.

Joseph Raymond Viola, Esq., Padova, Lisi & Della Guardia, Philadelphia, for Charles Joseph Lucarelli.

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD and McCAFFERY, JJ.

OPINION

Justice McCAFFERY.

In this matter, we granted allowance of appeal to consider whether the Superior Court erred in its determination that Appellee, Charles Joseph Lucarelli, after engaging in a course of conduct spanning 8½ months, did not forfeit his right to counsel. We hold that it did and, therefore, reverse the Superior Court's order granting a new trial and remand to that court for further proceedings.

The factual background of this case, as recounted by the Superior Court, is as follows:

On January 11, 2004, Michael Lee Bennett, his wife and four-year-old twins were sitting in a parked car in the parking lot of Kreiser's Truck Stop in Mifflinville, Columbia County. Bennett looked into his side rear view mirror and saw [Appellee's] car approaching. Bennett testified that he saw [Appellee's] car spray some "liquid" out of its passenger-side, rear-quarter panel behind the right rear wheel onto his car. [Appellee's] car sprayed the liquid onto the whole length of the driver's side of Bennett's car in a "steady stream" from four or five feet away. Bennett testified that the liquid "sort of smelled like WD-40 or like paint thinner."

Being concerned as to the contents of the liquid, Bennett called 911 and talked to the authorities while he followed [Appellee's] car. The chase resulted in a circuitous tour that ended back at Kreiser's Truck Stop. The police arrived shortly thereafter, followed by the local Mifflinville Volunteer Fire Company, the Bloomsburg Volunteer Fire Company HAZMAT Team, emergency medical technicians and the personnel and staff of Minuteman Spill Response, Inc. The police arrested [Appellee], the authorities quarantined Bennett's car, and an ambulance took Bennett and his family to Berwick Hospital's emergency room decontamination area.

Upon examination of [Appellee's] car, the police discovered that it was rigged up with an intricate system to pump and spray a liquid substance from two different ports in the right side. A pump was connected to the electrical system of the vehicle and was operated by a switch that was installed in the dashboard. Because [Appellee] would not disclose the chemical composition of the liquid, the HAZMAT team secured the liquid from his car and had it tested. John James Tobin of Seewald Laboratories used a mass spectrometer and confirmed that the liquid was highly toxic and flammable, being composed of aromatic and aliphatic solvents, acetone, tolu[e]ne, methylene chloride, ammonium hydroxide, and isopropyl alcohol. The police also executed a search warrant at [Appellee's] residence and found Tough Job remover, acetone, rubbing alcohol, paint stripper, and other milky, unknown substances. Fortunately, no one was injured during these events and Bennett's car was not damaged.

Commonwealth v. Lucarelli, 914 A.2d 924, 925-26 (Pa.Super.2006).

On January 12, 2004, Appellee was arrested on charges of terroristic threats, recklessly endangering another person, risking a catastrophe, intentional criminal mischief with pecuniary loss in excess of $ 5,000, and disorderly conduct. The procedural background subsequent to Appellee's arrest, key to our determination here, is as follows:

March 4, 2004: The trial court appointed Daniel Lynn, Esquire, to serve as Appellee's stand-by counsel.

March 12, 2004: Appellee posted $100,000 cash bond.

March 15, 2004: Robert Kurtz, Esquire, entered his appearance for Appellee by filing a motion for bail reduction.

March 19, 2004: Mr. Kurtz withdrew his appearance.

Between March 19 and April 7, 2004: Appellee retained Thomas Marsilio, Esquire, to represent him. Mr. Marsilio filed a request for a bill of particulars and a petition for a writ of habeas corpus.

April 7, 2004: Mr. Marsilio represented Appellee at an evidentiary hearing on the petition for a writ of habeas corpus.

June 17, 2004: Mr. Marsilio petitioned to withdraw as counsel, which Appellee responded to by filing a pro se "Petition for Due Process Violation and Attorney Misconduct."

July 8, 2004: The trial court held a hearing on Mr. Marsilio's motion to withdraw. The court granted the withdrawal request and suggested that Appellee "get somebody else to look at his case." Appellee explained to the trial court that he did not have any money because he had already paid Mr. Marsilio $10,000.00. The court informed Appellee that he could apply for a public defender, but Appellee stated that the public defender's office did not "want him." Appellee insisted that he did not want Mr. Marsilio to withdraw as his attorney.

July 13, 2004: The trial court held a hearing regarding Appellee's trial date, in which Appellee appeared pro se and asked to be represented by a public defender. The court directed a member of the court staff to secure an application for the public defender for Appellee. The court rescheduled trial for September.

August 5, 2004: Status listing at which Appellee appeared without an attorney.

August 26, 2004: The trial court held a hearing regarding the outstanding motions filed by Appellee. Appellee appeared without counsel, and the court advised Appellee that the case would be tried either in September or November.

September 8, 2004: Appellee failed to appear for jury selection, and the trial court issued a bench warrant for his arrest.

September 10, 2004: The trial court rescinded its bench warrant, and Appellee filed a pro se "Re-Submit Petition Hearing to Know Who all Defendants Accusers Are" and a "Petition/Hearing for Alleging That of Concealing two South Centre Township Police by Commonwealth."

September 13, 2004: Appellee filed a pro se "Petition/Motion for Effective Counsel."

September 15, 2004: The trial court entered an order appointing David Trathen, Esquire, as Appellee's stand-by counsel. Appellee then filed six more petitions: (1) "Re-Submit Petition and Motion Under the Americans with Disabilities Act;" (2) "Petition for Hearing Complaint I filed in Columbia County Prison Taken By Lieutenant Joseph Wondoloski of Being Assaulted;" (3) "Petition for Hearing for Recusal;" (4) "Petition for Hearing to Resubmit Any Unanswered Exculpatory Evidence;" (5) "Petition for Hearing for Dr. Brian Snyder for Concealing Exculpatory Evidence;" and (6) "Petition for Effective Council Under Sixth Amendment."

October 7, 2004: The trial court held a hearing to address Appellee's pro se petitions, including his petitions for effective counsel. The court ordered that Mr. Trathen remain as stand-by counsel. Appellee stated that he did not wish to proceed alone before a jury. Thereafter, the trial court reduced Appellee's bail from $ 100,000 to $ 80,000, so that Appellee could have funds to retain counsel. The trial court denied Appellee's Petitions for Effective Counsel as moot, and told Appellee to retain a lawyer. Appellee stated he was not giving his money to a "bank robber" such as named former counsel.

November 2, 2004: Appellee appeared for jury selection without an attorney.

November 15, 2004: Appellee appeared for trial without an attorney, and without an explanation for having failed to retain one. Throughout the trial, Appellee proceeded pro se with the assistance of his stand-by counsel, Mr. Trathen.

On November 16, 2004, following a two-day trial, a jury convicted Appellee on all charges except for terroristic threats.¹ Appellee subsequently retained the services of Carmen Marinelli, Esquire, who represented Appellee at sentencing. On June 28, 2005, the trial court sentenced Appellee to 60 days' to 18 months' imprisonment for the criminal mischief conviction. However, the court immediately paroled Appellee, and imposed community service and mental health counseling requirements as conditions of his parole. On the convictions of recklessly endangering another person, risking a catastrophe and disorderly conduct, the court sentenced Appellee to two concurrent terms and one consecutive term of 12 months' probation. The court further ordered Appellee to pay restitution in the amount of $18,300.26 to cover the Bennetts' medical expenses and also the expenses that the various governmental agencies and authorities had incurred.

Appellee appealed his judgment of sentence to the Superior Court, which held that Appellee had neither forfeited nor waived his right to counsel. Holding that the trial court had denied Appellee his constitutional right to be represented by counsel, the Superior Court granted a new trial. Lucarelli, supra at 925. Specifically, the Superior Court determined that Appellee had not forfeited his right to counsel because he had not engaged in either abusive or threatening conduct, nor had he engaged in extremely dilatory conduct. Id. at 930-31. The Superior Court also concluded that the trial court had erred when it allowed Appellee to proceed to trial pro se with stand-by counsel without first conducting a proper colloquy on the record, pursuant to Pennsylvania Rule of Criminal Procedure 121,² to ensure Appellee's knowing, voluntary and intelligent waiver of counsel. Lucarelli, supra at 931-32. Judge Orie Melvin filed a dissenting opinion in which she concluded that Appellee had effectively forfeited his right to counsel through his course of conduct. Id. at 932-36. The Commonwealth filed a petition for allowance of appeal with this Court, which was granted on July 31, 2007.

Our grant of allowance of appeal in this case is limited to a single question: did the Superior Court err in applying the doctrine of forfeiture of the right to counsel? Commonwealth v. Lucarelli, 593 Pa. 335, ...