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Commonwealth v. Lucarelli

May 27, 2009


Appeal from the Order of Superior Court entered on December 29, 2006 at No. 1196 MDA 2005 vacating the Judgment of Sentence of the Court of Common Pleas of Columbia County, reversing the conviction, and remanding for a new trial (CCP No. 76-CR-2004 dated 07-11-2005) 914 A.2d 924 (Pa.Super. 2006).

The opinion of the court was delivered by: Mr. Justice McCAFFERY


ARGUED: May 13, 2008


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 81/2 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 ...

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