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[U] Commonwealth v. Santiago

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DIMAS SANTIAGO, Appellant

NON-PRECEDENTIAL DECISION

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

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.[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?
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 ...

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