February 19, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
DIMAS SANTIAGO, Appellant
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. [*]
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 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.
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. 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?
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 the maximum penalty that could be imposed for that charge." (Trial Ct. Op., at 19).
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 self-representation. 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:
(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). "[T]he failure to explain the elements of the charged crimes requires 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)).
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. See Pa.R.Crim.P. 121(A)(2)(b), (c).
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).
Judgment of sentence vacated. Remand for new trial. Jurisdiction relinquished.