Appeal from the Judgment of Sentence October 25, 2011 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000811-2009
The opinion of the court was delivered by: Lazarus, J.
BEFORE: LAZARUS, J., OTT, J., and STRASSBURGER, J.*fn1
Willie Brooks appeals from his judgment of sentence, entered in the Court of Common Pleas of Delaware County, after a jury convicted him of four counts of criminal attempt to commit homicide,*fn2 four counts of aggravated assault,*fn3 one count of possession of an instrument of crime,*fn4 and one count of loitering and prowling at night.*fn5 The trial court found him guilty of persons not to possess firearms.*fn6 Upon review, we reverse and remand for a new trial.
In the early morning of December 6, 2006, at approximately 3:30 a.m., Officer Kevin Myers of the Radnor Township Police Department responded to a call about a prowler at 114 Browning Lane in Radnor. N.T. Trial, 8/17/2011, at 25. Officer Myers met Officer Alex Janoski at the scene. Id. at 28-30. They observed a man who matched the description of the suspected prowler, and when they approached and identified themselves as police, he fled. Id. at 30. The Officers chased the man into a driveway, at which point several shots were fired in their direction. Id. at 31. The officers took cover, losing the shooter in the darkness. Sergeant Robert Ruggiero and two other officers who had responded to the call spotted the suspect and approached him. Id. at 64-71. The suspect retreated and fired on Sergeant Ruggiero and the other officers. Id. at 72. The suspect again escaped.
Over seven months later, on July 13, 2007, Officer Paul Deppi of the Newtown Township Police Department observed a vehicle driven by Willie Brooks run a red light. Id. at 99-100. Officer Deppi initiated a traffic stop. As soon as Brooks had stopped and Officer Deppi exited his vehicle, Brooks drove away at a high speed. Id. at 100. Officer Deppi pursued, joined by other police vehicles, and after a high-speed chase, police eventually captured Brooks by ramming his vehicle and deploying a Taser to subdue him. Id. at 103. During a search of Brooks' car, made pursuant to a warrant, police found, among other items, a handgun, a cell phone, and a full-face mask with cutouts for the eyes. Id. at 108-14.
The Commonwealth charged Brooks with the above listed offenses, and he was tried over the course of several days. On August 16, 2011, the day jury selection was to begin, Brooks informed the court that he preferred to proceed pro se but only if granted a continuance to prepare his case. N.T. Trial, 8/16/11, at 5. The trial court judge denied the continuance on the grounds that over a year had elapsed during which Brooks had been represented by counsel. Id. During the discussion between the judge, Brooks, and Brooks' counsel, Brooks indicated that he felt compelled to proceed with counsel, since he did not have time to prepare his case. Id. at 3-14. Jury selection proceeded. The next day, defense counsel raised an objection that of the three African Americans in the jury pool, the court struck one for cause and the district attorney struck two. The trial judge overruled the objection. N.T. Trial, 8/17/11, at 5-6.
At trial, the Commonwealth presented the testimony of Monica Harper, a Verizon employee tasked with maintaining cell phone records. Harper described outgoing calls made from the cell phone Brooks was carrying when arrested in July, testifying that on December 6, 2006, a call was made from that cell phone to a Philadelphia number at 4:26 a.m. Id. at 128-31.
Furthermore, Harper testified that the call was placed via a cell phone tower near the location of the December 6 incident. Id.
The cell phone subscriber was Nora Cardona. Id. at 132. Cardona was Brooks' girlfriend who lived with him in Philadelphia until June 2006.
N.T. Trial, 8/18/2011, at 51. Cardona testified that the cell phone belonged to Brooks, and that Brooks had called her on the early morning of December 6, 2006. Id. at 53-54. Cardona also testified that she had served as a straw purchaser for the handgun seized from Brooks after the July incident. Id. at 48-49. The Commonwealth also presented the testimony of a ballistics expert, who testified that the handgun was the same weapon as that used in the December shooting incident. Id. at 16.
After the Commonwealth presented its case, defense counsel informed the court that Brooks would not be testifying, and the court conducted a colloquy to confirm Brooks' decision. N.T. Trial, 8/18/11, at 98-102. During this colloquy, Brooks informed the judge he was basing his decision on his understanding that should he testify, the court would allow the Commonwealth to present evidence of his prior conviction.*fn7 Id. at 101. The trial judge affirmed that he would admit the evidence if Brooks testified. Id. at 109, 122. After some discussion of the admissibility of the evidence of the prior conviction, Brooks reaffirmed his decision not to testify. Id. at 101-13, 114.
The jury convicted Brooks on August 19, 2011. On October 25, 2011, the trial judge sentenced him to consecutive 10 to 20 year sentences for each attempted homicide charge, a 2 to 4 year consecutive sentence for the person not to possess firearms charge, a 2 to 4 year concurrent sentence for possessing an instrument of a crime, and a 6 to 12 month concurrent sentence for loitering and prowling. N.T. Sentencing, 10/25/2011, at 22-24. The aggregate 42 to 84 year sentence will run consecutively to a 22-year federal sentence Brooks is currently serving.*fn8 Id. at 22.
Brooks appeals his sentence, raising three issues for review. Brooks first argues that the trial court erred in failing to grant him a continuance so that he could prepare his pro se defense. Brooks also raises a Batson*fn9 claim that the prosecutor improperly removed African Americans from the jury pool, resulting in an all-white jury. Finally, Brooks argues that the trial court erred in ruling that the Commonwealth could introduce evidence of his past criminal convictions should ...