Opinion
J-S03034-19 No. 2673 EDA 2017
03-28-2019
COMMONWEALTH OF PENNSYLVANIA v. RAUL N. CARABALLO, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 18, 2017 in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002316-2016 BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Raul N. Caraballo ("Caraballo") appeals from the judgment of sentence entered following his conviction of two counts of aggravated assault, and one count of recklessly endangering another person ("REAP"). We affirm.
In its Opinion, the trial court summarized the relevant testimony underlying the instant appeal as follows:
On December 11, 2015, Joshua Flores [("Flores")] was visiting his cousin, Kristopher Miller [("Miller")], at 3221 Kingston Place in South Whitehall Township[, Pennsylvania]. [] Flores went outside to smoke a cigarette with [Miller], and while standing near the back of his truck, a car came down the road and "almost clip[ped] the front of [his] bumper driving by." [] Flores decided to "slap the back of the [car and] ... raised [his] hands up, because I was like, wow, you almost hit my truck."[FN] The next thing he remembers
is lying on the ground after being shot in the right knee.
[FN] ... [] Flores ... in the above quote, initially referred to the offending vehicle as a truck, then clarified that it was a car.
[] Miller explained that he was standing next to [] Flores[,] when he observed "[a] car [pull] around a turn. Somebody got out of the car and started shooting at [Flores]." [] Miller could not identify the "shooter," but observed him come out of the driver's side of the vehicle. He also saw Shanna Crowthers ("Crowthers") and Juan Martinez ("Martinez") get out of the vehicle and walk away. The vehicle and driver then fled the scene. Samantha Wagenhurst ("Wagenhurst") also observed the shooting, but could not make an identification[,] with the exception of identifying the shooter as the driver of the vehicle. [] Wagenhurst was close enough to see the "flame of the gun."
* * *
[] Crowthers testified that she was a friend of [] Miller and attended a party at his residence on the night of the shooting. During the evening, she made contact with "Tony," whom she identified as [Caraballo], to purchase cocaine. She also identified [] Martinez as a friend of [Caraballo]. She agreed to meet them at the Target/Weis shopping center, which was across the street. She walked across the street and waited for [Caraballo] to arrive. A short time later, [Caraballo] arrived driving a 2007 Chevy Impala. A surveillance camera from Target captured [Caraballo's] vehicle at the shopping center, and it was identified by both [] Crowthers[,] and by Detective Timmy Shoudt during his investigation.
When [Caraballo] arrived, [] Martinez was in the passenger seat, and [] Crowthers was instructed to get into the back seat. The two then returned to Kingston Place. As they approached the residence, "Josh kicked the back of [Caraballo's] car." [Caraballo] then "slammed on the brakes," and all three exited the vehicle. [] Crowthers and [] Martinez started to "speed walk" towards the Target, and [Caraballo] started shooting in the direction where [] Flores was standing. [] Crowthers saw [Caraballo] with the gun in his hand, and could see the "light from the shots being fired." She heard three gunshots, all fired by [Caraballo] in the direction
of [] Flores. [Caraballo] then got back in his vehicle and drove off.Trial Court Opinion, 4/25/18, at 3-5 (footnote in original, remaining footnotes omitted). Caraballo subsequently was arrested and charged with the above-described crimes.
Prior to trial, Caraballo filed an Omnibus Pretrial Motion, which, after a hearing, the trial court denied. A jury ultimately convicted Caraballo of the above-described charges, after which the trial court sentenced Caraballo to an aggregate prison term of 9-20 years. Caraballo filed a post-sentence Motion for a New Trial, which the trial court denied. Thereafter, Caraballo filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Caraballo presents the following issue for our review: "Did the [trial] court err in not granting a mistrial and[/]or continuance and in not allowing [Caraballo] to fire counsel and proceed pro se[?]" Brief for Appellant at 2.
Caraballo argues that at trial, "there was a complete lack of communication between [himself] and trial counsel." Id. at 4. Caraballo contends that the lack of communication was "so blatant and extreme that all through the course of the trial[,] the trial [j]udge had to step into the proceedings, again and again." Id. According to Caraballo, the trial judge even participated in the questioning of witnesses, to satisfy Caraballo's "legal concerns." Id. Caraballo asserts that trial counsel attempted to withdraw from representation several times, but the trial court denied counsel's Motions. Id. Caraballo further contends that his counsel directed an expletive at Caraballo. Id. Caraballo invokes his Sixth Amendment right to represent himself, and directs our attention to portions of the transcript which, he claims, demonstrates his irreconcilable relationship with his counsel. See id. at 4-7. According to Caraballo, the circumstances warranted that the trial court grant his request to proceed pro se. Id . at 7.
We review a trial court's denial of a defendant's request to proceed pro se for an abuse of discretion. Commonwealth v. El ,977 A.2d 1158, 1167 (Pa. 2009). The Pennsylvania Supreme Court has "defined a court's discretion as the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. An abuse of that discretion is not merely an error of judgment, but ... [a] manifestly unreasonable ... result of partiality, prejudice, bias or ill will." Id. (quotation marks and citation omitted).
As our Supreme Court has explained,
[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. Faretta v. California ,422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The right to appear pro se is guaranteed[,] as long as the defendant understands the nature of his choice. ... Where a defendant knowingly, voluntarily, and intelligently seeks to waive his right to counsel, the trial court, in keeping with Faretta ,must allow the individual to proceed pro se. See Commonwealth v . Starr ,[] 541 Pa. 564, 664 A.2d 1326, 1335 ([Pa.] 1995) (holding that a defendant must demonstrate a knowing waiver under Faretta ). See also Commonwealth v. McDonough ,[] 571 Pa. 232, 812 A.2d 504, 508 ([Pa.] 2002) (concluding that Faretta requires an on-the-record colloquy in satisfaction of Pa.R.Crim.P. 121, which colloquy may be conducted by the court, the prosecutor, or defense counsel.)[.]
The right to waive counsel's assistance and continue pro se is not automatic[,] however. Rather, only timely and clear requests trigger an inquiry into whether the right is being asserted knowingly and voluntarily.... Thus, the law is well established that "in order to invoke the right of self-representation, the request to proceed pro se must be made timely and not for purposes of delay and must be clear and unequivocal." Commonwealth v. Davido ,[ ] 582 Pa. 52, 868 A.2d 431, 438 ([Pa.] 2005).El ,977 A.2d at 1162-63 (footnotes and some citations omitted, emphasis added).
In reviewing the timeliness of the request to proceed pro se, courts generally consider the point in the proceedings that the request is being made. In Commonwealth v. Owens ,496 Pa. 16, 436 A.2d 129 (Pa. 1981), [the Supreme Court] noted that[,] "where the accused does not request to represent himself before trial, the constitutional right to self-representation recognized in Faretta is not implicated. When, during the course of trial, an accused wishes to dismiss counsel and either represent himself or obtain new counsel, his request is addressed to the sound discretion of the trial court." Owens ,436 A.2d at 133 n.6 (citations omitted); see also United States v. McKenna ,327 F.3d 830, 844 (9th Cir. 2003); Commonwealth v. Jermyn ,551 Pa. 96, 709 A.2d 849, 863 (Pa. 1998). Thus, whether the request was made before trial or during trial is a critical factor in determining the timeliness of the request.Davido ,868 A.2d at 438 (emphasis added).
In its Opinion, the trial court referred to the untimeliness of Caraballo's request to proceed pro se, as well as his disruptive behavior during the trial, as its bases for denying Caraballo's request to proceed pro se. See Trial Court Opinion, 4/25/18, at 7-10. Upon reviewing the record, we discern no abuse of discretion by the trial court, and therefore affirm on the basis of the trial court's Opinion with regard to this claim. See id.
Our review further discloses that the trial court permitted Caraballo to make his own inquiries of the Commonwealth's witnesses, and encouraged Caraballo's counsel to use questions proposed by Caraballo. However, Caraballo's proposed inquiries were not helpful to his defense. See , e.g.,N.T., 4/12/17, at 52-54 (wherein the trial court and the prosecutor asked questions proposed by Caraballo, including whether police had tested Martinez for gunshot residue, or searched Martinez or his immediate area for weapons, yet the answers provided no support, and actually detracted from Caraballo's defense).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/28/19
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