*1 er, our of Appellant’s review brief reveals he has failed to cite to pertinent
legal authority claim, 2119(a).
violation of Pa.R.A.P. Rule “We
have repeatedly held that failure to devel- to,
op argument with citation and anal- of,
ysis authority relevant waives the issue Us-Penn, “R” Toys review.” Harris v.
Inc., (Pa.Super.2005). Ac-
cordingly, Appellant has waived this issue
for our review. Id. Judgment of sentence is affirmed. Pennsylvania,
COMMONWEALTH of
Appellee Joseph LUCARELLI,
Charles
Appellant.
Superior Pennsylvania. Court of Sept.
Submitted
Filed Dec. *2 Viola, Philadelphia, appel-
Joseph R. lant. Norton, Atty., Dist.
Gary E. Asst. Commonwealth, appellee. Bloomsburg, MELVIN, JOYCE, ORIE BEFORE: JOHNSON, JJ. JOHNSON, BY OPINION J.: judg- appeals 1 Charles Lucarelli upon his convic- ment of sentence entered of recklessly endangering tions catastrophe, intentional risking person, in pecuniary loss criminal mischief with $5,000 conduct. and disorderly excess 3304(a)(1), 2705, 3302(b), §§ See Pa.C.S. 5503(a)(4), respectively. Lucarelli asserts him his deprived that the trial court erred constitutional restitution, evidence imposing and that the convictions. insufficient to his Lucar- find the trial court denied We represent- to be elli constitutional Accordingly, we vacate by counsel. ed and remand for judgment of sentence new trial. Lee January Michael
Bennett, four-year-old twins wife and parking car in the parked in a sitting were Mifflinville, Stop Truck lot of Kreiser’s County. looked into his Bennett Columbia Lucarelli’s rear view mirror saw side that he Bennett testified approaching. car “liquid” car some out spray Lucarelli’s saw rear-quarter panel passenger-side, its his car. wheel onto rear behind onto the sprayed liquid car of Ben- side of the driver’s length whole from four “steady in a stream” nett’s car away. testified Bennett or five feet liquid “sort of smelled like criminal pecuniary WD-40 or mischief loss paint like thinner.” disorderly excess of conduct. On March the trial appointed ¶ Being concerned as to the contents Lynn, Daniel Esquire, serve as Lucarel- of the liquid, Bennett called 911 and talked *3 15, 2004, li’s stand-by counsel. On March to the authorities while followed Lucar- Kurtz, Esquire, ap- Robert entered his relli’s car. The chase resulted in a circu- pearance by filing for Lucarelli a Motion itous tour that ended back at Kreiser’s Reduction, for Bail Kurtz but withdrew his Truck Stop. police The shortly arrived 19, thereafter, appearance by Praecipe on by March followed the local Mifflinville Company, Volunteer Fire then retained Thomas Bloomsburg Lucarelli Team, Marsilio, Volunteer Company Fire HAZMAT him. Esquire, On emergency medical technicians and the May Request for Marsilio personnel and Spill 2004, staff Minuteman a Bill of Particulars. On June Response, police Inc. The arrested Lucar- Marsilio to withdraw as petitioned elli, quarantined the authorities Bennett’s responded by which filing Lucarelli car, and an took ambulance Bennett and pro Due Process Violation se “Petition for family Hospital’s emergen- Berwick July On Attorney Misconduct.” cy room decontamination area. hearing regard- held a ing motion withdraw. Marsi- Upon car, examination of Marsilio’s police sought that it lio because rigged discovered was to withdraw Lucarelli up with an system to pump nonlawyers,” taking intricate and was “consulting with spray liquid from his, substance two different their advice over and that he believed ports in pump A side. was con- thought processes Luerelli’s “behavior nected system to the electrical of the vehi- paranoid and *4 (2) Hearing Act;” Complaint for I “Petition now you go is to trial whether Taken County By in Columbia Prison filed [the not. Mr. Norton Commonwealth’s Joseph Being Lieutenant Wondoloski lawyer], your what’s on it? position (3) Assaulted;” Hearing “Petition for for MR. NORTON: Commonwealth is (4) Recusal;” to Hearing “Petition for Re- proceed to ready to trial. Any Exculpatory submit Evi- Unanswered your position, THE What’s COURT: (5) dence;” Hearing “Petition for for Dr. Mr. Lucarelli? Snyder Concealing Exculpatory Brain for MR. LUCARELLI: I am here to re- Evidence;” for and another “Petition quest a ... Public Defender Under Sixth Effective Council [sic] Amendment.”
;fc ‡ # if: if: 8 On October going THE COURT: what Here’s we’re pro to hearing held a address Sumner, do, to Mr. Lucarelli. Mr. do including for effec- petitions, petitions you any applications have for Public De- tive counsel: get you? fender Let’s one Mr. Lucarelli, the first THE Mr. today COURT:
Lucarelli before leaves here so they’re all you pro have filed and you an motion got application to file can— you additional counsel? se is want Honor, Your not to MR. THE COURT: What we’re do LUCARELLI: going se. is, interrupt pro it’s not [the trial] we’ll reschedule sure, you September for have Why is that? THE COURT: you give an or not. That will attorney I’ve never LUCARELLI: Because MR. ready plenty get time one be only done that I was I’ve said Norton, go. put it on the please pick my case off this because I had to September. schedule for attorney my former the floor after 7/18/04, N.T., put it there. Marsilio how I will handle THE COURT: Here’s September this, selection, say repeatedly you here you and the appear jury failed to an attor- you an want for his trial court issued bench warrant want you, want to you don’t ney September On arrest. this, warrant, going I’m to do se. What rescinded its and Lucarelli bench in as keep Mr. Trathen Petition/Hearing going I’m se “Re-Submit get stand-by you if don’t stand-by, as all Accusers Know Who Defendants questions you attorney, “Petition/Hearing Alleging to answer Are” and a might you’re pro- going because and mental health counseling as conditions by yourself ceed going otherwise. I’m parole. of his On the convictions of reck- ... resolve this lessly endangering person, risking conduct, catastrophe disorderly ‡ ‡ ‡ ‡ ^ trial court sentenced Lucarelh to two con- MR. LUCARELLI: one say Can last current terms and one consecutive term of to, thing? If I have far a jury as as probation. 12 months’ The trial court fur- trial, I go jury. will not alone before pay ther ordered Lucarelli to restitution in just got school, barely out of high $19,475.75to the amount of cover the Ben- year last Ibut did once. medical and also expenses nett’s the ex- N.T., 10/07/04, 2-3, Thereafter, penses governmental the various trial court reduced from Lucarelli’s bail agencies and incurred. Lucar- authorities $80,000, in order for Lucarelli Court, appeals raising elli now to this N.T., have funds to retain counsel. following questions for our review: 10/07/04, at 5. The trial court Lu- denied 1. Whether court’s con- the trial tacit carelli’s Petitions for Effective as Counsel Lucarelli, clusion that who adamant- moot, lawyer,” and told Lucarelli “get *5 ly insisted that could not and he did because it be “everybody.” will easier for himself, not wish to had represent N.T., 10/07/04, at 6. See Trial also Court his Sixth nevertheless waived ¶ (T.C.O), 10/13/04, Order at 2. right Amendment to counsel and ¶ 15, 9 On November Lucarelh stand-by be se with pro should tried appeared attorney, for trial without an de- counsel, an on- conducting without ciding instead to himself the-record to determine a colloquy The jury trial court instructed the as fol- waiver, egre- valid resulted lows: gious denial of Lucarelli’s Sixth THE COURT: Now the Defendant rights Amendment which vitiated representing himself. what He is the entire trial culminated in which appointed call se. I have Trath- Mr. multiple his conviction of unfounded by capacity, en to in an advisory stand if charges!?] questions has of a nature legal 2. the Whether Commonwealth’s evi- ... fact But the that Mr. Lucarelli is as a dence was insufficient matter of himself, representing an absolute has law sustain a conviction of Lucar- that, right to do should not be held beyond a elli reasonable doubt of against him nor should it in his be favor. any of “danger” [the] crimes So he’s representing himself. —based which highly-inflamed jury of the N.T., 11/15/04, at Throughout the tri- readily him guilty[?] found al, proceeded pro se with the stand-by assistance of his [erred 3. Whether the trial court when Trathen. ordering] the amount restitution entirely to payable local Following two-day trial, 10' on No- jury government agencies reimburse- vember convicted Lucarelli unjustifiable “emergency on all charges. On June the trial ment management” Pennsyl- court where days sentenced Lucarelli to 60 costs 18 imprisonment expressly months’ for the criminal vania law excludes “the conviction, immediately pa- mischief but from the definition Commonwealth” him, requiring “victim,” roled community service and the actual where
929
victims,
the
under-
any,
if
defendant
there were
suffered
that,
defenses, the
injury
damage[?]
stands
in addition
no
that, if not
rights
has other
Brief for
asserted, may
permanent-
be
timely
lost
appeal,
question
11 In his first
on
and are not
ly
that if errors occur
Lucarelli contends that
trial
de
timely
raised
objected
or otherwise
represented
of his
prived
right
him
be
defendant,
by
objection
these
Appellant at 22-27.
by counsel. Brief for
may
permanently.
lost
errors
be
guaranteed
...
[is]
counsel
“[T]he
McDonough, 571 Pa.
Commonwealth v.
by the
Amendment to the United
Sixth
(2002);
Pa.
I,
A.2d
506-07
812
Article
Sec
States Constitution
R.Crim.P. 121
“Failure to conduct
cmt.
Pennsylvania
tion Nine of
Constitu
al-
thorough
colloquy before
v.
on-the-record
Payson,
tion.”
Commonwealth
(citations
proceed to
a defendant to
lowing
699 (Pa.Super.1999)
A.2d
omitted).
reversible error.” Com-
The
to coun
se constitutes
constitutional
Houtz,
waived,
may
is valid monwealth
sel
waiver
omitted).
(citation
only
knowledge
(Pa.Super.2004)
“if made with
intelli
Id,
Therefore,
gence.”
“[w]hen
Lucarelli asserts
the defendant seeks to waive the
court failed
conduct an on-the-record
...
the judge
shall ascertain from
to determine whether
wished
colloquy
defendant,
record,
whether this
to waive his
voluntary,
knowing,
intelligent
is a
Brief for
pro se.
121(C).
waiver
Pa.R.Crim.P.
of counsel.”
concedes that
Commonwealth
*6
not
an on-the-record col-
court did
conduct
12 To ensure that a waiver of
loquy to determine whether
knowing, voluntary,
counsel is
and intelli
right
Ap-
Brief
waived his
to counsel.
gent,
colloquied
defendant must
the
be
Instead,
11.
pellee at
the Commonwealth
understanding
following
his
of at least the
his
argues
right
that Lucarelli forfeited
six elements:
abusive,
and
threatening
“due to
counsel
(1) whether the defendant understands
attorneys and
coercive conduct
towards
be
right
represented by
he has
extremely dilatory
Brief
conduct[J”
right
and
if
the
free counsel
proposi-
at
To
its
Appellee
(2)
indigent,
he is
whether the defendant
tion,
previous
our
Commonwealth cites
charges
nature
understands the
of
Thomas,
decision Commonwealth
against him
each
and the elements of
of
Thomas,
In
(Pa.Super.2005).
A.2d 246
(3)
charges,
the defendant
those
whether
the Third Circuit’s dis-
adopted
this Court
range
permissible
is
of
aware
of
forfeiture
tinction between waiver and
sentences
fines for the offenses
and/or
(4)
by counsel.
right
represented
to be
un-
charged,
whether
defendant
“an
(stating that waiver is
See id. at 257
right
derstands that if he waives the
voluntary relinquishment
intentional and
by all the
counsel he will still be bound
while forfeiture
right[,]”
of a known
rules
and that
procedure
normal
of
‘extremely
of
“the result
the defendant’s
counsel would be familiar with these
dilatory
‘extremely
or
rules,
misconduct’
under-
serious
defendant
omitted).
”) (citations
We noted
possible
are
defenses
conduct.’
stands that there
for-
circuit courts have found
charges
might
that “federal
to these
of which counsel
under sever-
aware,
are
to counsel
feiture of
if these defenses
circumstances,
including when
defen-
they
al
may
permanently,
be lost
raised
N.T., 7/08/04,
attorney;
process.
dant
attacked
and due
at 3.
physically
his
How-
ever,
abusive,
Lucarelli’s actions
when a
occurred after
defendant was
threaten-
collected from him a
Marsilio
re-
ing,
attorney;
and coercive to his
fee,
compel
tainer
filed a motion to
when
defendant threatened counsel with
requests
to answer
Commonwealth
confrontation,
physical
verbally abused
Particulars,
of
then
Bills
motioned to
him,
him in
cooperate
pre-
refused to
with
N.T.,
withdraw less than a month later.
defense,
paring
attempted
to coerce
Docket,
7/08/04,
3-4;
Court of
Criminal
filing
him into
frivolous
claims.” Id.
County, pp. 7-
Common
Pleas Columbia
(internal
omitted).
257-58
citations
This
Moreover, Attorney
Marsilio’s
ultimately
Court
concluded that the defen-
not because Lu-
basis for
withdrawal
dant
Thomas “forfeited his
verbally
carelli was
threaten-
physically
through
pattern
of serious mis-
Rather,
sought to withdraw
ing.
Marsilio
conduct, abuse, threats, and utter failure
“consulting
because Luearelli was
Id. at
collaborate
his own defense.”
his,
advice over
nonlawyers,” taking their
significant
it
We found
Lucarelli’s “behavior
and that he believed
time of the defendant’s
the court had
paranoid and
thought processes
[were]
appointed
attorneys
rep-
five different
7/08/04,
In
N.T.,
delusional[.]”
him;
resent
the defendant refused to be
context,
letter,
subsequent
present at the trial and assist his latest
board,
disciplinary
threat
go
to the
counsel;
disagree-
the defendant had a
insufficient
petition
sup-
evidence
are
strategy,
ment with his counsel’s defense
port
finding
that Luearelli forfeited his
repeatedly instructing his counsel not to
a matter of law.
to counsel as
whatsoever;
present any defense
and the
Therefore,
that the facts of
we conclude
verbally
threatened his counsel
distinguishable from those
this case are
family’s physical safety.
and his counsel’s
the eases cited
presented in Thomas and
facts,
upon
id. at
See
258-59. Based
these
rise to the
give
therein and do not
level
this Court held that the defendant “for-
necessary to conclude Lu-
“abuse” that is
through
feited his
to counsel
continu-
right to counsel.
carelli
forfeited
Cf.
ing, extremely serious misconduct.” Id. at
Thomas,
357 F.3d
United States v.
*7
(3d Cir.2004)
a
(finding
363
forfeiture when
physical
counsel with
threatened
record,
14 After
we
review
him,
confrontation, verbally abused
re-
that Luearelli
not
engage
conclude
did
a
preparing
fused to
with him
cooperate
any “extremely
dilatory
serious or
con
defense,
him into
attempted
and
to coerce
a
that
finding
duct” that could amount to
claims).
filing frivolous
right
his
to counsel. The
he forfeited
argues
Commonwealth
that Luearelli was
also contends
15 The Commonwealth
“abusive,
...
threatening and coercive to
“extremely
dila-
engaged
that Luearelli
Attorney
Appellee
Brief for
many
Marsilio[J”
too
tory conduct”
he filed
because
that the
only
at 30. The
evidence
Com
Ap-
trial. Brief for
delayed
motions and
proffers
monwealth
its conten
conclude that since
pellee
30-31. We
a
pro-
tion is that after Marsilio filed motion
Luearelli to
required
the trial court
withdraw,
him defaming
Luearelli sent
Marsi-
granting
ceed
se after
letter,
withdraw,
pre-
him to the disci
Lucarelli’s
threatened to take
lio’s motion to
numerous,
board,
motions,
rea-
him
were
plinary
peti
though
and served
addressing
at
the issue
alleging
violating
tion
misconduct
the
sonable. Without
ap-
have
confidentiality whether the trial court should
torney/client privilege of
931
Lucarelli
121
ascertain whether
as an Rule
pointed trial counsel
Lucarelli
voluntary
any delay
executing
knowing,
that
in the
and
indigent, we find
was
reasonable,
Pa.
intelligent
also
the
of counsel. See
because
waiver
not
court did
make funds available
121 cmt. After the trial
R.Crim.P.
to retain counsel until October
Lucarelli
money,
Lucarelli
reduced Lucarelli’s bail
counsel,
and
than five weeks before
hire
in-
private
less
chose not to
request
for a
grant
did not
stead,
pro se.
represent
himself
decided
v. Cole-
N.T.,
continuance.
Commonwealth
11/15/04,
1-15. Lucarelli
See
Cf.
man,
for-
(finding
se,
A.2d
1006-08
905
after
proceed pro
made his
decision
found that the
feiture when the trial court
not
told
trial court that
did
the
ability
appellant had the financial
to hire money
lawyer,
public
for a
defender’s
counsel, granted
appellant
several
him,” and the trial
“did not want
office
counsel,
continuances
in order
to obtain
petitions
court-ap-
court denied his
appellant
instructed the
trial will be-
Monica,
Supreme
In
counsel.
our
pointed
gin in three months whether
not she
factu-
was confronted with
similar
Court
counsel, and
the appellant
retained
then
appellant
did not
al scenario where
appeared on the date
trial without
office,
public
for the
defender’s
qualify
counsel). Therefore,
conclude that
we
for legal assis-
requests
made numerous
his
right
Lucarelli did not “forfeit[]
tance,
private
hire
chose
extremely
through
continuing,
Moni-
appeared
for trial
See
Thomas,
serious misconduct.”
ca,
concluded:
¶ Appellant’s case was called for trial MELVIN, J., July which time request- ORIE files a public ed a N.T. Hearing, defender. Dissenting Opinion. 7/13/04,at 2. He stated as follows. BY DISSENTING OPINION ORIE Well, you granted [BY APPELLANT]: MELVIN, J.: my attorney withdrawal he refused ¶ 1 persuaded Because I am by a review money. any my position refund So of the record that did effectively money I could some of that use forfeit I respectfully attorney. one, hire Number dissent Majority’s from the decision to re- haven’t seen a thread evidence from mand for a new trial. my questioned case. And Marsillio ¶ 2 Majority many concludes that “the times about [sic] evidence. Lucarelli to required inspected And also I haven’t viewed [AJttorney se after granting Marsilios’ I put evidence all. And motion atOp. to withdraw.” 930. I many would Mr. Marsillio times [sic] *9 note that I find court’s decision to all his was to me what do answer grant Attorney you Marsilio’s motion to with- want to do that for? Indeed, Appellant’s having
1. only paid it is clear that related a real him retain- objection Attorney Marsilio’s er. withdrawal [Prosecutor], it please put on Ap- go. Mr. a discussion about Id. at 2-3. After I know September.... for following the schedule discovery requests, pellant’s as matter far an intentional this wasn’t occurred. exchange concerned, you as defense going THE Here’s what we’re COURT: no attorney an so there’s don’t have Sumner, do, do Mr. Lucarelli. Mr. fair have It wouldn’t be sense. you for De- applications have Public Why you fill in the next week.... don’t you? one Mr. get fender on Let’s yourself an get at- application, out today here so Lucarelli before leaves torney rolling on this because get you application. an got file can— September for term. you’ll be on is, any money you do have And the issue attorney. you? an pay Do Id. at 4-7. Yes, [APPELLANT]: sir. Appellant then filed a series of you employed? THE Are COURT: discovery, sought motions in which he No, mistrial, of sir. and dismissal some [APPELLANT]: scheduled a hear- charges. The trial court Any THE COURT: income? August ing on these various motions for get I some from [APPELLANT]: 26, 2004, previous- at the time as the same military. Appellant’s ADA ly hearing scheduled on get military pen- THE You COURT: Appel- petition. The trial court denied pension. you sion or some sort of Do by lant’s motions orders dated Au- several application? an 26, 26, 27, Appel- gust 2004.2 C.R. at 28. Yes, My MR. SUMNER: Your Honor. of lant filed another series se motions is, posted understanding a substantial discovery September further on requesting amount of bail which bail would be—his 10, 29, 3, September 2004 and 2004. Id. certainly attorney could be used an 30, 34. representation fund their clause. war- September bench for arrest for Appellant’s rant was issued jury appear his failure to selection. On on and I [APPELLANT]: was out bail 13, 2004, September re- get money tried some back Id. at counsil quest [sic].” “effective was refused[J hearing A was scheduled for October motions, Appellant’s 2004 on various appointed standby counsel the trial court THE COURT: understand there’s upcoming jury trial. Id. for the November put up. substantial amount bail filed several more next Lucarelli, application, fill out the lets’ alia, seeking, inter relief se motions fill go through process we’ll and so ADA, judge, under the recusal thing your appli- out and then that’s Id. discovery, new counsel. further What we’re cation Public Defender. 42, 44. were also These matters is, do this for going to we’ll reschedule on October hearing scheduled for sure, you have September for hearing with the follow- began 7 That give you or not. That will ready ing exchange: plenty get of time to one and be proceeding the certified record. Although hearing contained in appears it held transcript August there is of that no *10 THE COURT: This is the time set for THE COURT: I understand that. No- body I hearings. eight disagreeing you several think have is with on that. them, petitions you bog But can’t this eight they’re filed and case be- down go all I’m cause of that issue. What I’m going going set for now. to down to is, Lucarelli, going Mr. is stay them time. do Trathen to in as one at a standby consultation, filed, purposes a you they’re first have motion se, Court-appointed However, consultation. all pro you want additional counsel sponte, my sua that means on mo- ... own petition under effective counsel tion, [sic], I’m going to an issue Order here 6th amendment your reducing $80,000. a second bail to Honor, Your not to in- [APPELLANT]: give you That will some I funds which terrupt not pro but it’s se. you attorney will release when have an Why THE COURT: is that? get attorney, one, you to if want [APPELLANT]: Because I’ve never gives you and that lot of get latitude to said pro only that I was se. I’ve done somebody. you Because need some- this pick my because I had to case off body. somebody. You should have my attorney the floor after Mar- former * * * I’m on doing my own motion sillio put it there. [sic] you can get attorney so an with deal THE COURT: Here’s how I will handle things/if you want to. this: say repeatedly You in here that 10/7/04, at Hearing, N.T. 3-5. you attorney you want an want an issued an reducing Appellant’s court order represent you, you don’t $80,000 $100,000 from bail so he would want to be I’m going What do for retaining have available anoth- is this: I’m going keep Mr. Trathen attorney. Appellant replied er that he in as as standby, standby, you if don’t go jury” not alone indi- “will before get questions an attorney, answer cated that he Id. at 5-6. The understood. you might you’re going because hearing Ap- remainder of focused on proceed by yourself, go- I’m otherwise. discovery requests, and pellant’s ing all, this. resolve First of disposed court pending of all motions. [sic], petition Mr. Marsillio that’s with Appellant 8 The reflects record next you might be entitled to mon- another — several se motions on filed more Octo- him, know, ey I back don’t frona 12, 2004, which requested ber one of you didn’t want you, didn’t want him. 45, 46, C.R. On pretrial conference. I didn’t say [APPELLANT]: didn’t Appellant November want him. for a of his trial motion continuance sched- you THE COURT: He didn’t want because he uled November it you sounded like didn’t want him. depose opportunity had had an money witness, Snyder,3 was [APPELLANT]: wanted some certain Dr. attorney by judge back at least. “forced be his own 3. The to de- witness to witness who wished directed this submit pose, Snyder, emergency "upon Dr. was an room interview/deposition physician present who was when proper prior at 47. Just notice”. C.R. brought night in for treatment on Sny- Appellant's it was revealed that Dr. Appellant's ability the incident. The issue of questioning Appellant did der submit to Snyder question already Dr. had been the Trial, Friday trial. See N.T. before his motions, and, subject discovery of various 11/15/04, at 5-11. start, several weeks before trial was to
935 dismissed, (1980), 435 taking appeal 495 Pa. attorney let his who withdraw 10,000.dollars (1981), Id. The of our my at 51. 176 in decision [sic].” A.2d Wentz, appellant the motion. Id. When the was denied in In Coleman. No- jury trial commenced on Appellant’s under the influence charged driving with 15, 2004, he was not represented vember ar- February appeared in 1977 as although Attorney present Trathen was in without counsel. May 1977 raignment 11/15/04, 5, Trial, standby at counsel. N.T. obtain appellant the to The trial told nothing There on the record to 13. for trial that yet appeared later any that made demonstrate had appellant The had month without counsel. for trial nor that effort secure counsel informed asked for “free” counsel was failing had a excuse reasonable yet nothing he did qualify, he did not do so. before trial and private obtain counsel
¶
he did
know
local attor-
claimed
not
9 find that this Court’s recent deci-
Coleman,
case
to trial with the
neys.
proceeded
in
v.
905
The
sion
Commonwealth
the
his
(Pa.Super.2006), supports
proceeding pro
A.2d 1003
After
appellant
conviction,
argued
conclusion that
herein forfeited
appellant
the
he was
Coleman,
In
right
his
counsel.
the
right
coun-
his Sixth Amendment
denied
charged
defendant was
with Medicaid
granted
should
a contin-
sel and
have been
September
Fraud
related offenses in
to seek
disa-
representation.
uance
We
Her
in
replaced
first
the
that he
greed
appellant’s
claim
November 2003 with new counsel who
se. Id.
had been “coerced”
January
his
appearance
withdrew
433, 421
the
Noting
A.2d 796.
that
The defendant was then instructed to re-
of his
did not seek a continuance
appellant
in April
tain counsel for trial
and the
trial,
appellant “de-
explained
we
that the
trial court also directed her to
apply
the
when
nied himself
assistance
counsel
defender,
public
counsel
through
which
steps
failed to take
to retain counsel
declared
conflict and further determined
the admonishment
despite
appellant
qualify.
did not
Id.
court.”
trial court found that the defendant had
criminal defendant who
hold
We
financial ability
to retain counsel but
duly
of the date of
has been
notified
so,
refused to do
she was
tried without
obtain
and who has been advised to
as
counsel
scheduled.
who,
him and
nev-
appeal,
we discussed the distinc-
ertheless,
appears in court
the sched-
tion between forfeiture of the
no
date without counsel and with
uled
Relying
waiver thereof.
thereof
excuse for
lack
reasonable
Thomas,
on Commonwealth v.
879
part
obtaining
for the
plans
and no concrete
246
concluded
(Pa.Super.2005),
A.2d
coun-
of counsel has waived
had,
“in-
through
that the
her
sel.
conduct,
dilatory
forfeited
tentional and
434, 421
A.2d 796.4
Id.
despite
absence
her
counsel”
Coleman,
121 colloquy.
of a valid Rule
Coleman,
Here,
ad-
as in
12
905
supra,
financial ability
had
to retain
mitted he
Nevertheless,
in an
abundance
counsel.
cited
We also
Commonwealth
caution,
Wentz,
the trial court reduced his bail
funds retainer and Appellant legal rep-
admonished to obtain
resentation. refused to do so
and, continuances, despite numerous
repeatedly appeared before the trial court counsel,
without including on the date of Moreover,
trial. Appellant was well aware
that his case would to trial wheth- I,
er he had retained counsel or not.
therefore, conclude that was not
deprived of his Sixth Amendment
counsel and instead forfeited that
based on dilatory his intentional and con- throughout
duct proceedings. these Ac-
cordingly, consistent with Coleman and
Wentz, reject Appellant’s I would claim
that the trial court committed error and required
that a new trial is in this case.5 reasons, For respectfully these
dissent.
SCHUYLKILL HAVEN BOROUGH
SCHUYLKILL HAVEN POLICE ASSOCIATION,
OFFICERS
Appellant. Pennsylvania.
Commonwealth Court of
Argued June
Decided Dec. Brazil, recognize Although appointment that the 549 Pa. (1997), standby analysis of counsel does not eliminate the such does not affect the colloquy appellant right to coun- need for a waiver when an forfeited his waives his Commonwealth v. sel. Notes [were] delusionalf.]” cle operated by and was a switch that was (N.T.), 7/08/04, at 2. Lucarelli Testimony installed in the dashboard. Because Lu- insisted that Marsilio he wanted carelli would not disclose chemical 7/08/04, attorney. N.T., at The composition liquid, the HAZMAT granted suggested court withdrawal team liquid secured from his car and somebody “get Lucarelli else to look had it tested. John James Tobin of See- N.T., 7/08/04, at at 6. Lucarelli [his] case.” wald spectrome- Laboratories used mass explained trial court that he does to the ter liquid and confirmed that the high- was already money because flammable, ly being toxic and composed of N.T., $10,000.00. 7/08/04, paid Marsilio solvents, acetone, aromatic and aliphatic Lucarelli that 6. The trial instructed tolune, chloride, methylene ammonium hy- defender, a public could for apply droxide, alcohol. isopropyl police public Lucarelli stated that defender’s also executed a search warrant at Lucarel- N.T., 7/08/04, office did him.” not “want li’s residence Tough and found Job rem- time, prose- 7. At this the Commonwealth’s over, acetone, alcohol, rubbing paint strip- Lucarelli, cutor suggested that for the per, and milky, other unknown substances. being, time represent himself Fortunately, injured no during one N.T., 7/18/04, at 7-8. The trial court these events and Bennett’s car was not agreed, instructed the Commonwealth’s damaged. prosecutor Lucarelli, jury for pick ¶ 5 charged appear The Commonwealth informed that he must Lucar- N.T., 7/08/04, jury elli with recklessly endangering selection. at 8-9. Lu- person, fault, risking catastrophe, carelli intentional insisted that it wasn’t his Centre Concealing two South That of that he did not want Marsilio to withdraw N.T., 7/08/04/, On Tonwship Commonwealth.” Police attorney. as his a pro Lucarelli filed September July the trial court held Effective Counsel.” “Petition/Motion date, hearing regarding Lucarelli’s trial 15, 2004, the trial court September On appeared pro in which Lucarelli se. The Trath- appointing David entered order following exchange place: took en, stand-by coun- Esquire, as Lucarelli’s Lucarelli, your THE COURT: case peti- then filed six more sel. Lucarelli term, been called the trial this has and Motion “Re-Submit Petition tions: your attorney although was allowed with Disabilities the Americans Under day. other withdraw the And issue