j-a32042-13 non-precedential decision

J-A32042-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DIMAS SANTIAGO,
Appellant
No. 561 MDA 2013
Appeal from the Judgment of Sentence March 20, 2013
in the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0001019-2012
BEFORE: DONOHUE, J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.
FILED FEBRUARY 19, 2014
Appellant, Dimas Santiago, appeals from the judgment of sentence
entered March 20, 2013, following his conviction of terroristic threats, 18
Pa.C.S.A. § 2706(a)(1). For the reasons that follow, we remand for a new
trial.
On June 1, 2012, Appellant was waiting for his probation officer at
the Lebanon County Adult Probation Department when Elsa Rodriguez, who
is fluent in both Spanish and English, overheard him say, “Voy a traer un
rifle y dispararle a todo el mundo,” meaning that he was going to “bring a
rifle into [the] office and shoot everyone.” (Trial Court Opinion, 6/12/13, at
3; id. at 3 n.2).
Rodriguez felt scared and concerned for the safety of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A32042-13
herself and others in the department.
She reported his comments to her
supervisor, Audrey Rakow, who had heard Appellant speaking loudly and in
an agitated voice, but did not understand Spanish. (See id. at 3-4).
On June 4, 2012, Appellant was charged with terroristic threats, 18
Pa.C.S.A. § 2706(a)(1).
Thereafter, the procedural history becomes
complicated because Appellant rejected Public Defender representation and
insisted on representing himself.
On August 22, 2012, Appellant was
formally arraigned and given the criminal information in open court. He then
filed several pro se pretrial motions for discovery, motions to suppress
evidence, and a pretrial omnibus motion. On September 17, 2012, the court
directed the Commonwealth to provide discovery directly to Appellant, and
warned Appellant several times that he was not represented by counsel and
encouraged him to seek counsel. On October 11, 2012, Appellant requested
“carte blanche” in forma pauperis status which the court denied without
prejudice to seek specific relief in forma pauperis on October 15, 2012.
(See Trial Ct. Op., at 7).
A month before trial, on October 17, 2012, Appellant filed a motion
to request a court-appointed investigator, which the court denied, along with
a motion to suppress on October 23, 2012.
Eventually, after urging
Appellant again to seek counsel, the court appointed standby counsel on
December 14, 2012.
Appellant continued filing pro se discovery motions,
including motions to dismiss the charges and to request a court-appointed
hearing expert witness, which the court denied on February 7, 2013.
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Appellant’s jury trial commenced on February 7, 2013, where he was
found guilty of making terroristic threats.
On March 20, 2013, the court
sentenced him to a term of incarceration of not less than ten months nor
more than two years, plus costs and a $100 fine. He immediately appealed
pro se, and the trial court appointed appellate counsel. Appellant filed a pro
se statement of errors on April 2, 2013, and the trial court entered a Rule
1925(a) opinion on June 12, 2013.1 See Pa.R.A.P. 1925.
Appellant, now represented by counsel, raises seven questions for
our review:
A.
Whether the [trial] court’s failure to conduct a thorough,
on-the-record colloquy advising Appellant of the charge lodged
against him and the maximum penalty that could be imposed for
that charge constitutes reversible error as Appellant’s waiver of
counsel was not knowing, voluntary and intelligent and Appellant
was therefore deprived of counsel?
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1
By order of December 14, 2012, the trial court appointed the Lebanon
County Public Defender’s Office to serve as standby counsel, for whom Brian
L. Diederick, Esq., filed an appearance. (See Order, 12/14/12). After trial,
the court appointed Richard Druby, Esq. to represent Appellant on appeal.
(See Order, 3/22/13). Appellant filed a pro se Rule 1925(b) statement on
April 2, 2013. A review of our docket indicates that standby counsel
Diederick filed a praecipe for withdrawal of appearance and appellate
counsel Druby filed a praceipe for appearance on April 29, 2013. Thus, at
the time he filed his Rule 1925(b) statement, Appellant was assisted only by
standby counsel. Therefore, he properly acted pro se and has not run afoul
of our restrictions on hybrid representation. Cf. Commonwealth v. Ali, 10
A.3d 282, 293 (Pa. 2010) (“[A]ppellant was represented by counsel on
appeal, so his pro se Rule 1925(b) statement was a legal nullity[.]”) (citation
omitted); Commonwealth v. Ellis, 626 A.2d 1137, 1139, 1141 (Pa. 1993)
(“[A defendant may not] confuse and overburden the court by his own pro
se filings of briefs at the same time his counsel is filing briefs on his
behalf.”).
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B.
Did the [trial] court commit an error of law in violation of
Pa.R.A.P. 1701(b), by holding an evidentiary hearing on June 11,
2013, after Appellant had filed his notice of appeal depriving the
lower court of jurisdiction?
C.
Whether the [trial] court erred in failing to ascertain with
some degree of certainty whether Javier Rodriguez would invoke
his Fifth Amendment privilege prior to his testimony and in
resolving the potential conflict of interest involving counsel?
D.
Whether the [trial] court erred in not permitting Appellant
to recall Brian Reyes Nunez on rebuttal?
E.
Whether the [trial] court erred in not publishing the prior
testimony of Elsa Rodriguez?
F.
Whether the [trial] court erred in permitting a uniformed
officer to sit at Commonwealth counsel table?
G.
Whether the issue of the composition of the jury must be
remanded for an evidentiary hearing?
(Appellant’s Brief, at 7-8).
In his first issue, Appellant asserts that the trial court “fail[ed] to
conduct a thorough, on-the-record colloquy advising Appellant of the charge
lodged against him and the maximum penalty that could be imposed for that
charge[,]” and argues that this “constitutes reversible error of Appellant’s
waiver of counsel was not knowing, voluntary and intelligent, and Appellant
was therefore deprived of counsel.”
(Id. at 15).
The trial court similarly
concedes that its colloquy of Appellant was defective, and that Appellant was
not “verbally apprised of the nature of the charge lodged against him and
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the maximum penalty that could be imposed for that charge.” (Trial Ct. Op.,
at 19).2
A criminal defendant’s right to counsel under the Sixth
Amendment includes the concomitant right to waive counsel’s
assistance and proceed to represent oneself at criminal
proceedings. The right to appear pro se is guaranteed as long as
the defendant understands the nature of his choice.
In
Pennsylvania, Rule of Criminal Procedure 121 sets out a
framework for inquiry into a defendant’s request for selfrepresentation. Where a defendant knowingly, voluntarily, and
intelligently seeks to waive his right to counsel, the trial court, in
keeping with Faretta [v. California, 422 U.S. 806 (1975)],
must allow the individual to proceed pro se.
Commonwealth v. El, 977 A.2d 1158, 1162-1163 (Pa. 2009) (some
citations and footnote omitted); see also Commonwealth v. McDonough,
812 A.2d 504, 506 (Pa. 2002).
Pennsylvania Rule of Criminal Procedure 121 provides, in relevant
part:
(A) Generally.
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2
We observe that the trial court raised this issue in its Rule 1925(a) opinion,
(see Trial Ct. Op., at 13-19), and that Appellant’s pro se Rule 1925(b)
statement raises only a general challenge in the context of an alleged
conflict with standby counsel that “th[e] court deprived [Appellant] of his
right to . . . competent counsel representation [and] also took advantage of
[Appellant’s] lack of knowledge of the law[.]” (Rule 1925(b) Statement,
4/02/13, at unnumbered page 4; see id. at unnumbered page 1). See
Commonwealth v. Norris, 819 A.2d 568, 576 (Pa. Super. 2003) (declining
to address ineffectiveness of counsel on alternative basis that it was raised
sua sponte by trial court). However, the issue of whether Appellant received
a defective colloquy before waiving counsel is a question of constitutional
dimension. Commonwealth v. McDonough, 812 A.2d 504, 506 (Pa.
2002). Therefore, we proceed to the merits of Appellant’s first issue.
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(1) The defendant may waive the right to be represented
by counsel.
(2) To ensure that the defendant's waiver of the right to
counsel is knowing, voluntary, and intelligent, the judge or
issuing authority, at a minimum, shall elicit the following
information from the defendant:
(a) that the defendant understands that he or she has
the right to be represented by counsel, and the right to
have free counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the
charges against the defendant and the elements of each of
those charges;
(c) that the defendant is aware of the permissible range
of sentences and/or fines for the offenses charged;
(d) that the defendant understands that if he or she
waives the right to counsel, the defendant will still be
bound by all the normal rules of procedure and that
counsel would be familiar with these rules;
(e) that the defendant understands that there are
possible defenses to these charges that counsel might be
aware of, and if these defenses are not raised at trial, they
may be lost permanently; and
(f) that the defendant understands that, in addition to
defenses, the defendant has many rights that, if not timely
asserted, may be lost permanently; and that if errors occur
and are not timely objected to, or otherwise timely raised
by the defendant, these errors may be lost permanently.
Pa.R.Crim.P. 121(A)(1)-(2).
charged
crimes
requires
“[T]he failure to explain the elements of the
us
to
vacate
the
judgment
of
sentence.”
Commonwealth v. Clyburn, 42 A.3d 296, 302 (Pa. Super. 2012), appeal
denied, 2012 Pa. Lexis 1981 (Pa. Aug. 28, 2012) (citation omitted)
(discussing Pa.R.Crim.P. 121(A)(2)(b)).
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Here, although the trial court informally advised Appellant of various
aspects of his rights pursuant to Rule 121, the court did not engage in a full,
comprehensive colloquy as prescribed in the rule. At arraignment, the court
advised appellant that he had the right to be represented by an attorney
and, if he could not afford one, an attorney would be appointed free of
charge.
(See N.T. Arraignment, 8/22/12, at 2-3); see also Pa.R.Crim.P.
121(A)(2)(a).
At the suppression hearing, the court further informed
Appellant:
. . . I need to let you know that you have the right to be
represented by a lawyer. If [you] cannot afford a lawyer one will
be appointed for you free.
The lawyer would be able to
recognize technicalities or defenses that you as a lay person
would not be able to raise. Specifically, you have made a Motion
to Suppress witness testimony that simply is not based on any
cognizable legal grounds. Maybe if you would have had a lawyer
the lawyer would have been able to present something that
might have been cognizable.
It is not a good idea for you to try to represent yourself. It
is in your best interest to have a lawyer to represent you.
Nevertheless, if you choose to represent yourself you have that
right. But if you choose to represent yourself, you are bound by
all of the same legal principles that govern a lawyer. . . .
(N.T. Suppression Hearing, 11/28/12, at 9-10); see also Pa.R.Crim.P.
121(A)(2)(d)-(f).
However, our review of the record reveals that the trial
court did not ensure that Appellant understood the nature and elements of
the charge of terroristic threats, nor did it inform him of the permissible
range of sentences or fines for the offense charged.
121(A)(2)(b), (c).
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See Pa.R.Crim.P.
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After its own review of Appellant’s appearances before the trial court,
the court conceded: “[W]e can identify no instance where waiver of counsel
was raised wherein [Appellant] was . . . verbally apprised of the nature of
the charge lodged against him and the maximum penalty that could be
imposed for that charge.”
(Trial Ct. Op., at 19); see also Pa.R.Crim.P.
121(A)(2)(b), (c). Thus, the trial court never properly colloquied Appellant
pursuant to Rule 121 prior to trial, and he is entitled to relief.
See El,
supra at 1162-1163; see also McDonough, supra at 506. Consequently,
we are constrained to vacate Appellant’s judgment of sentence and remand
for a new trial. See Clyburn, supra at 302; see also Commonwealth v.
Houtz, 856 A.2d 119, 130 (Pa. Super. 2004) (vacating judgment of
sentence and remanding for a new trial where trial court failed to address
some of the elements of Rule 121).3
Judgment of sentence vacated.
Remand for new trial.
Jurisdiction
relinquished.
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Due to our disposition in this matter, we need not address Appellant’s
remaining issues.
3
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2014
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