Commonwealth v. Lucarelli

DISSENTING OPINION BY

ORIE MELVIN, J.:

¶ 1 Because I am persuaded by a review of the record that Appellant did effectively forfeit his right to counsel, I respectfully dissent from the Majority’s decision to remand for a new trial.

¶ 2 The Majority concludes that “the trial court required Lucarelli to proceed pro se after granting [AJttorney Marsilios’ motion to withdraw.” Op. at 930. I would note that I find the trial court’s decision to grant Attorney Marsilio’s motion to withdraw was entirely proper, and the reasons therefor are amply supported by the transcript of the hearing held on July 8, 2004.1 Review of the record also demonstrates the following.

¶ 3 On July 2, 2004, Appellant filed a “Petition for Due Process Violation and Attorney Mis-conduct [sic] by Attorney [ ] Masilio [sic].” Certified Record (C.R.) at 17. In that petition, Appellant asserted inter alia that Attorney Marsilio violated attorney-client privilege, attempted to “cover-up his own inadequacies,” and failed to provide effective counsel. Id. The trial court denied Appellant’s petition as moot by order of July 9, 2004, on the basis that Attorney Marsilio had been granted leave to withdraw. Id. at 19. On July 8, 2004, Appellant filed a pro se petition under the Americans with Disabilities Act (ADA) in which he asserted that Attorney Marsilio had failed to begin preparing a defense on Appellant’s behalf and thereby violated his due process rights. Id. at 20. The trial court issued a rule and scheduled a hearing for August 26, 2004.

¶ 4 Appellant’s case was called for trial on July 13, 2004, at which time he requested a public defender. N.T. Hearing, 7/13/04, at 2. He stated as follows.

[BY APPELLANT]: Well, you granted my attorney withdrawal and he refused to refund any money. So my position is that I could use some of that money to hire another attorney. Number one, I haven’t seen a thread of evidence from my case. And I questioned Marsillio [sic] many times about the evidence. And also I haven’t inspected or viewed any of the evidence at all. And I put that to Mr. Marsillio [sic] many times and all his answer was to me what do you want to do that for?

*933Id. at 2-3. After a discussion about Appellant’s discovery requests, the following exchange occurred.

THE COURT: Here’s what we’re going to do, Mr. Lucarelli. Mr. Sumner, do you have any applications for Public Defender on you? Let’s get one to Mr. Lucarelli before he leaves here today so he can — you got to file an application. And the issue is, do you have any money to pay an attorney. Do you?
[APPELLANT]: Yes, sir.
THE COURT: Are you employed?
[APPELLANT]: No, sir.
THE COURT: Any income?
[APPELLANT]: I get some from the military.
THE COURT: You get a military pension or some sort of pension. Do you have an application?
MR. SUMNER: Yes, Your Honor. My understanding is, he posted a substantial amount of bail which would be — his bail could certainly be used by an attorney to fund their representation clause.
[APPELLANT]: I was out on bail and I tried to get some of the money back and was refused[J
THE COURT: I understand there’s a substantial amount of bail put up. Mr. Lucarelli, lets’ fill out the application, we’ll go through that process and so fill that thing out and then that’s your application for Public Defender. What we’re going to do is, we’ll reschedule this for September for sure, whether you have an attorney or not. That will give you plenty of time to get one and be ready to go. Mr. [Prosecutor], please put it on the schedule for September.... I know this wasn’t an intentional matter as far as the defense is concerned, but you don’t have an attorney so there’s no sense. It wouldn’t be fair to have a trial in the next week.... Why don’t you fill out the application, get yourself an attorney and get rolling on this because you’ll be on for the September term.

Id. at 4-7.

¶ 5 Appellant then filed a series of pro se motions in which he sought discovery, a mistrial, and dismissal of some of the charges. The trial court scheduled a hearing on these various motions for August 26, 2004, at the same time as the previously scheduled hearing on Appellant’s ADA petition. The trial court denied Appellant’s motions by several orders dated August 26, 2004.2 C.R. at 26, 27, 28. Appellant filed another series of pro se motions requesting further discovery on September 3, 2004 and September 10, 2004. Id. at 29, 30, 34.

¶ 6 On September 8, 2004, a bench warrant was issued for Appellant’s arrest for his failure to appear for jury selection. On September 13, 2004, Appellant filed a request for “effective counsil [sic].” Id. at 35. A hearing was scheduled for October 7, 2004 on Appellant’s various motions, and the trial court appointed standby counsel for the upcoming November jury trial. Id. at 36. Appellant next filed several more pro se motions seeking, inter alia, relief under the ADA, recusal of the trial judge, further discovery, and new counsel. Id. at 37, 38, 41, 42, 44. These matters were also scheduled for hearing on October 7, 2004.

¶ 7 That hearing began with the following exchange:

*934THE COURT: This is the time set for several hearings. I think we have eight of them, eight petitions filed and they’re all set for now. I’m going to go down them one at a time. Mr. Lucarelli, the first motion you have filed, and they’re all pro se, is you want additional counsel ... a petition for effective counsel under 6th amendment [sic],
[APPELLANT]: Your Honor, not to interrupt but it’s not pro se.
THE COURT: Why is that?
[APPELLANT]: Because I’ve never said that I was pro se. I’ve only done this because I had to pick my case off the floor after my former attorney Mar-sillio [sic] put it there.
THE COURT: Here’s how I will handle this: You say repeatedly in here that you want an attorney and you want an attorney to represent you, you don’t want to be pro se. What I’m going to do is this: I’m going to keep Mr. Trathen in as standby, as standby, if you don’t get an attorney, to answer any questions you might have because you’re going to proceed by yourself, otherwise. I’m going to resolve this. First of all, the petition with Mr. Marsillio [sic], that’s in another — you might be entitled to money back frona him, I don’t know, but he didn’t want you, you didn’t want him.
[APPELLANT]: I didn’t say I didn’t want him.
THE COURT: He didn’t want you and it sounded like you didn’t want him.
[APPELLANT]: I wanted some money back at least.
THE COURT: I understand that. Nobody is disagreeing with you on that. But you can’t bog this case down because of that issue. What I’m going to do is, Mr. Trathen is going to stay in as a standby for purposes of consultation, Court-appointed consultation. However, sua sponte, that means on my own motion, I’m going to issue an Order here in a second reducing your bail to $80,000. That will give you some funds which I will release when you have an attorney to get another attorney, if you want one, and that gives you a lot of latitude to get somebody. Because you need somebody. You should have somebody. * * * I’m doing this on my own motion so you can get an attorney and deal with things/if you want to.

N.T. Hearing, 10/7/04, at 3-5. The trial court issued an order reducing Appellant’s bail from $100,000 to $80,000 so he would have $20,000 available for retaining another attorney. Appellant replied that he “will not go alone before a jury” and indicated that he understood. Id. at 5-6. The remainder of the hearing focused on Appellant’s discovery requests, and the trial court disposed of all pending motions.

¶ 8 The record next reflects Appellant filed several more pro se motions on October 12, 2004, one of which requested a pretrial conference. C.R. 45, 46, 49. On November 9, 2004, Appellant filed a pro se motion for a continuance of his trial scheduled for November 15, 2004, because he had not had an opportunity to depose a certain witness, Dr. Snyder,3 and was “forced to be his own attorney by a judge *935who let his attorney withdraw and taking my 10,000.dollars [sic].” Id. at 51. The trial court denied the motion. Id. When Appellant’s jury trial commenced on November 15, 2004, he was not represented although Attorney Trathen was present as standby counsel. N.T. Trial, 11/15/04, at 5, 13. There is nothing on the record to demonstrate that Appellant had made any effort to secure counsel for trial nor that he had a reasonable excuse for failing to do so.

¶ 9 I find that this Court’s recent decision in Commonwealth v. Coleman, 905 A.2d 1003 (Pa.Super.2006), supports the conclusion that Appellant herein forfeited his right to counsel. In Coleman, the defendant was charged with Medicaid Fraud and related offenses in September 2003. Her first attorney was replaced in November 2003 with new counsel who withdrew his appearance in January 2004. The defendant was then instructed to retain counsel for trial in April 2004, and the trial court also directed her to apply for counsel through the public defender, which declared a conflict and further determined that the appellant did not qualify. The trial court found that the defendant had the financial ability to retain counsel but refused to do so, and she was tried without counsel as scheduled.

¶ 10 On appeal, we discussed the distinction between forfeiture of the right to counsel and waiver thereof. Relying in part on Commonwealth v. Thomas, 879 A.2d 246 (Pa.Super.2005), we concluded that the defendant had, through her “intentional and dilatory conduct, forfeited her right to counsel” despite the absence of a valid Rule 121 colloquy. Coleman, supra, 905 A.2d at 1008.

¶ 11 We also cited Commonwealth v. Wentz, 280 Pa.Super. 427, 421 A.2d 796

(1980), appeal dismissed, 495 Pa. 616, 435 A.2d 176 (1981), in support of our decision in Coleman. In Wentz, the appellant was charged with driving under the influence in February 1977 and appeared for arraignment in May 1977 without counsel. The trial court told the appellant to obtain counsel, yet he appeared for trial later that month without counsel. The appellant had asked for “free” counsel but was informed he did not qualify, yet he did nothing to obtain private counsel before trial and claimed he did not know any local attorneys. The case proceeded to trial with the appellant proceeding pro se. After his conviction, the appellant argued he was denied his Sixth Amendment right to counsel and should have been granted a continuance to seek representation. We disagreed with the appellant’s claim that he had been “coerced” to proceed pro se. Id. at 433, 421 A.2d 796. Noting that the appellant did not seek a continuance of his trial, we explained that the appellant “denied himself the assistance of counsel when he failed to take steps to retain counsel despite the admonishment of the trial court.” Id.

We hold that a criminal defendant who has been duly notified of the date of his trial, and who has been advised to obtain counsel to represent him and who, nevertheless, appears in court on the scheduled date without counsel and with no reasonable excuse for the lack thereof and no concrete plans for the obtaining of counsel has waived his right to counsel.

Id. at 434, 421 A.2d 796.4

¶ 12 Here, as in Coleman, Appellant admitted he had the financial ability to retain counsel. Nevertheless, in an abundance of caution, the trial court reduced his bail to

*936provide him with more than sufficient funds to pay a retainer and consistently admonished Appellant to obtain legal representation. Appellant refused to do so and, despite numerous continuances, he repeatedly appeared before the trial court without counsel, including on the date of trial. Moreover, Appellant was well aware that his case would proceed to trial whether he had retained counsel or not. I, therefore, conclude that Appellant was not deprived of his Sixth Amendment right to counsel and instead forfeited that right based on his intentional and dilatory conduct throughout these proceedings. Accordingly, consistent with Coleman and Wentz, I would reject Appellant’s claim that the trial court committed error and that a new trial is required in this case.5

¶ 13 For these reasons, I respectfully dissent.

. Indeed, it is clear that Appellant’s only real objection to Attorney Marsilio’s withdrawal related to Appellant having paid him a retainer.

. Although it appears a hearing was held on August 26, 2004, there is no transcript of that proceeding contained in the certified record.

. The witness who Appellant wished to depose, Dr. Snyder, was an emergency room physician who was present when Appellant was brought in for treatment on the night of the incident. The issue of Appellant's ability to question Dr. Snyder had already been the subject of various discovery motions, and, several weeks before trial was to start, the trial court directed this witness to submit to an interview/deposition with Appellant "upon proper notice”. C.R. at 47. Just prior to Appellant's trial, it was revealed that Dr. Snyder did submit to questioning by Appellant on the Friday before his trial. See N.T. Trial, 11/15/04, at 5-11.

. I would note that this Court in Wentz did not require a waiver colloquy in order to find the appellant “waived” his right to counsel. 421 A.2d at 434.

. Although I recognize that the appointment of standby counsel does not eliminate the need for a waiver colloquy when an appellant waives his right to counsel, Commonwealth v. Brazil, 549 Pa. 321, 326, 701 A.2d 216, 219 (1997), such does not affect the analysis of whether Appellant forfeited his right to counsel.