Commonwealth v. Lucarelli

OPINION

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 8)6 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 *189ended 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 HAZ-MAT 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.

*190March 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.

*191September 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 Concealing two South Centre Township Police by Commonwealth.”

September 13, 2004: Appellee filed a pro se “Petition/Motion for Effective Counsel.”

September 15, 2004: The trial court entered an order appointing David Trathen, Esquire, as Appellee’s stand-by counsel. Appellee then filed six more petitions: (1) “ReSubmit Petition and Motion Under the Americans with Disabilities Act;” (2) “Petition for Hearing Complaint I filed in Columbia County Prison Taken By Lieutenant Joseph Wondoloski of Being Assaulted;” (3) “Petition for Hearing for Recusal;” (4) “Petition for Hearing to Resubmit Any Unanswered Exculpatory Evidence;” (5) “Petition for Hearing for Dr. Brian Snyder for Concealing Exculpatory Evidence;” and (6) “Petition for Effective Council Under Sixth Amendment.”

October 7, 2004: The trial court held a hearing to address Appellee’s pro se petitions, including his petitions for effective counsel. The court ordered that Mr. Trathen remain as stand-by counsel. Appellee stated that he did not wish to proceed alone before a jury. Thereafter, the trial court reduced Appellee’s bail from $ 100,000 to $ 80,000, so that Appellee could have funds to retain counsel. The trial court denied Appellee’s Petitions for Effective Counsel as moot, and told Appellee to retain a lawyer. Appellee stated he was not giving his money to a “bank robber” such as named former counsel.

November 2, 2004: Appellee appeared for jury selection without an attorney.

November 15, 2004: Appellee appeared for trial without an attorney, and without an explanation for having failed to *192retain one. Throughout the trial, Appellee proceeded pro se with the assistance of his stand-by counsel, Mr. Trathen.

On November 16, 2004, following a two-day trial, a jury convicted Appellee on all charges except for terroristic threats.1 Appellee subsequently retained the services of Carmen Marinelli, Esquire, who represented Appellee at sentencing. On June 28, 2005, the trial court sentenced Appellee to 60 days’ to 18 months’ imprisonment for the criminal mischief conviction. However, the court immediately paroled Appellee, and imposed community service and mental health counseling requirements as conditions of his parole. On the convictions of recklessly endangering another person, risking a catastrophe and disorderly conduct, the court sentenced Appellee to two concurrent terms and one consecutive term of 12 months’ probation. The court further ordered Appellee to pay restitution in the amount of $18,300.26 to cover the Bennetts’ medical expenses and also the expenses that the various governmental agencies and authorities had incurred.

Appellee appealed his judgment of sentence to the Superior Court, which held that Appellee had neither forfeited nor waived his right to counsel. Holding that the trial court had denied Appellee his constitutional right to be represented by counsel, the Superior Court granted a new trial. Lucarelli, supra at 925. Specifically, the Superior Court determined that Appellee had not forfeited his right to counsel because he had not engaged in either abusive or threatening conduct, nor had he engaged in extremely dilatory conduct. Id. at 930-31. The Superior Court also concluded that the trial court had erred when it allowed Appellee to proceed to trial pro se with stand-by counsel without first conducting a proper colloquy on the record, pursuant to Pennsylvania Rule of Criminal Procedure 121,2 to ensure Appellee’s knowing, voluntary and intelli*193gent waiver of counsel. Lucarelli, supra at 931-32. Judge Orie Melvin filed a dissenting opinion in which she concluded that Appellee had effectively forfeited his right to counsel through his course of conduct. Id. at 932-36. The Commonwealth filed a petition for allowance of appeal with this Court, which was granted on July 31, 2007.

Our grant of allowance of appeal in this case is limited to a single question: did the Superior Court err in applying the doctrine of forfeiture of the right to counsel? Commonwealth v. Lucarelli, 593 Pa. 335, 929 A.2d 642 (2007).3 Because we are reviewing a pure question of law, with no relevant facts in dispute, we apply a de novo standard of review. Commonwealth v. Worthy, 598 Pa. 470, 957 A.2d 720, 724 (2008).

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his or her defense. Rothgery v. Gillespie County, — U.S. ——, 128 S.Ct. 2578, 2583 n. 8, 171 L.Ed.2d 366 (2008). Similarly, Article I, Section 9 of the Constitution of this Commonwealth affords to a person accused of a criminal offense the right to counsel. Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504, 506 (2002). However, the constitutional right to counsel of one’s own choice is not absolute. Commonwealth v. *194Randolph, 582 Pa. 576, 873 A.2d 1277, 1282 (2005) (citing and quoting Commonwealth v. McAleer, 561 Pa. 129, 748 A.2d 670, 673-74 (2000)). Rather, the right of an accused individual to choose his or her own counsel, as well as a lawyer’s right to choose his or her clients, must be weighed against and may be reasonably restricted by the state’s interest in the swift and efficient administration of criminal justice. Randolph, supra at 1282. Thus, while defendants are entitled to choose their own counsel, they should not be permitted to unreasonably clog the machinery of justice or hamper and delay the state’s efforts to effectively administer justice. Id.

We have previously stated that by insisting on particular counsel who is unavailable or by insisting on private counsel but failing to take any steps to retain an attorney, a defendant may be deemed to have waived the right to have counsel of his or her choice. Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365, 1376 (1984). Where a defendant knowingly and intelligently refuses appointed counsel while insisting on privately retained counsel without taking steps to secure such private counsel, the defendant must be prepared to accept the consequences of his or her choice. Id. at 1377. Although we framed the issue as one of waiver in Szuchon, we now conclude that a more precise analysis requires us to recognize the distinction between “waiver” of the right to counsel and “forfeiture” of the right to counsel.

Like the Superior Court in Commonwealth v. Thomas, 879 A.2d 246, 257-59 (Pa.Super.2005), we find persuasive the distinction between waiver and forfeiture made by the Third Circuit Court of Appeals in United States v. Goldberg, 67 F.3d 1092, 1099-1101 (3d Cir.1995). Waiver is “an intentional and voluntary relinquishment of a known right.” Id. at 1099. By contrast, forfeiture, as defined by the Third Circuit, does not require that the defendant intend to relinquish a right, but rather may be the result of the defendant’s “extremely serious misconduct” or “extremely dilatory conduct.” United States v. Thomas, 357 F.3d 357, 362 (3d Cir.2004) (quoting Goldberg, supra at 1100-02). See also Com*195monwealth v. Coleman, 905 A.2d 1003, 1006-08 (Pa.Super.2006) (affirming a finding of forfeiture where defendant, who had the means to retain counsel, appeared without counsel or engaged in behavior that forced counsel to withdraw).

The consequences of the distinction between waiver of the right to counsel and forfeiture of the right to counsel are significant because, we now hold, Pa.R.Crim.P. 121 and its colloquy requirements do not apply to situations where forfeiture is found. To hold otherwise would permit a recalcitrant defendant to engage in the sort of obstructive behavior that mandates the adoption of the distinction between forfeiture and waiver in the first instance. Should an unrepresented defendant choose not to engage in the colloquy process with the trial court, were there no provision for forfeiture of counsel, that defendant could impermissibly clog the machinery of justice or hamper and delay the state’s efforts to effectively administer justice. Such a result would be untenable. See United States v. Thomas, supra at 362 (“Forfeiture can result regardless of whether the defendant has been warned about engaging in misconduct, and regardless of whether the defendant has been advised of the risks of proceeding pro se.”) (quoting Goldberg, supra at 1101). We reject Appellee’s suggestion that the Commonwealth must demonstrate that Appellee “knowingly and intelligently” engaged in conduct that had the inevitable effect of impairing his constitutional right to counsel. See Appellee’s Brief at 60. We hold today that where a defendant’s course of conduct demonstrates his or her intention not to seek representation by private counsel, despite having the opportunity and financial wherewithal to do so, a determination that the defendant be required to proceed pro se is mandated because that defendant has forfeited the right to counsel.

Upon examining the jurisprudence developed by other jurisdictions regarding forfeiture of the right to counsel, we observe that defendants have been held to have forfeited the right to counsel where they have either engaged in physically abusive and threatening conduct, or have engaged in dilatory conduct. See e.g., Minnesota v. Lehman, 749 N.W.2d 76, 81-*19682 (Minn.Ct.App.2008), review denied, 2008 Minn. LEXIS 478 (Minn, filed August 5, 2008) (collecting cases and holding that defendant forfeited his right to court-appointed counsel where defendant attacked and beat the attorney in open court); Buitron v. State, 897 A.2d 758 (Del.2006) (holding that defendant forfeited his right to counsel where he engaged in ongoing abuse of his attorney and requiring defendant to proceed pro se at trial); Wilkerson v. Klem, 412 F.3d 449, 454 (3d Cir.2005) (holding that a defendant who had been duly notified of the date of his trial, who had been advised to obtain counsel in sufficient time to be ready for trial, and who appeared on the scheduled date without counsel and with no reasonable excuse for his failure to have counsel present, forfeited his right to counsel).

Upon review and consideration of the circumstances of the instant case, we hold that the Superior Court erred in its application of the doctrine of forfeiture of the right to counsel and erred in awarding Appellee a new trial. Appellee’s behavior, over a course of 8$ months, was sufficiently obstructive to mandate a conclusion of forfeiture because he engaged in extremely dilatory conduct. Appellee had more than eight months to prepare for trial; had the financial means to retain counsel; did retain counsel on several occasions, although the attorneys were permitted to withdraw when the attorney-client relationship deteriorated; was given access to $20,000 by the trial court some five weeks before the commencement of trial for the purpose of retaining counsel; and failed to offer an explanation for not having retained counsel by the start of trial. Appellee simply decided not to retain private counsel because he did not wish to spend the money. Contrary to the Superior Court’s conclusion, we hold that the trial court acted properly in directing Appellee to proceed to trial pro se.4 Thus, we hold further that the Superior Court committed an error of law in failing to recognize that Appellee’s pattern of behavior constituted extremely dilatory conduct, sufficient to result in the forfeiture of his right to counsel.

*197Order reversed. Case remanded to the Superior Court for proceedings consistent with this Opinion.