Commonwealth v. Brooks
| Decision Date | 02 June 2015 |
| Docket Number | J-S16027-15,No. 953 MDA 2014,953 MDA 2014 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. RANDALL D. BROOKS, Appellant |
| Court | Pennsylvania Superior Court |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appellant, Randall D. Brooks, appeals from the judgments of sentence entered on July 3, 2012 and August 31, 2012, as made final by the denial of his post-sentence motion on August 31, 2012. We affirm in part, vacate in part, and remand for resentencing.
The factual background of this case is as follows. In November 2009, Appellant and Jessica Rooney ("Rooney") ended their romantic relationship. Shortly thereafter, Rooney began dating Matthew Ross ("Ross"). Ross worked next to the car repair business where Appellant worked.
On December 11, 2009, Rooney and Ross went on a date. During that date, Appellant sent numerous text messages to Rooney. In response, Rossused Rooney's telephone to inform Appellant that Rooney was at Ross' house drinking. Upon receiving this message, Appellant drove to Ross' house. Appellant drove through a neighbor's yard and parked in Ross' backyard. When Ross and Rooney arrived back at Ross' residence, Ross exited his vehicle and a verbal confrontation between Appellant and Ross ensued. Appellant demanded to talk to Rooney and advanced towards her, while she remained seated in Ross' vehicle. Ross attempted to restrain Appellant and a physical altercation followed. Eventually, Appellant left Ross' residence.
On December 14, 2009, Ross picked Rooney up at her mother's residence. Once Rooney entered Ross' vehicle, Appellant pulled behind Ross' vehicle and blocked their exit. Ross therefore drove through the front yard of the home in order to leave the area without confronting Appellant. On December 18, 2009, Appellant told Rooney that Ross was lucky that Appellant didn't shoot him.
On December 29, 2009, as Ross was driving to work, Appellant pulled up beside Ross' vehicle and fired three shots. The third shot struck Ross in the shoulder. As a result of his wounds, Ross continues to experience medical problems, inter alia, limited use of his left arm. On January 27, 2010, Appellant was seen continually driving near Ross' residence when he, his family, Rooney, and Rooney's daughter returned from shopping.
Appellant eventually confessed to Rooney that he was the individual who shot Ross. He also continued to harass her by approaching her inpublic, leaving her notes, and writing letters from prison. While awaiting trial, Appellant requested that his father pay one of the jurors to find him not guilty of the charged offenses. He also requested his father change the appearance of the taillights of the vehicle he was driving during the shooting.
When Appellant returned to jail from jury selection on June 7, 2011, he spoke to fellow inmate Joshua Dunlap ("Dunlap"). Appellant had recognized one of the jurors as Brent Kephart ("Kephart"). Appellant was aware that Dunlap knew Kephart. He therefore asked Dunlap to contact Kephart once Dunlap was released on bail in order to discuss Appellant's case. On the morning Dunlap was released from jail, Appellant told Dunlap that both he and Kephart would receive financial compensation if they complied with his wishes.
The relevant procedural history of this case is as follows. Appellant was charged via five criminal informations with five counts of witness intimidation,1 two counts of aggravated assault,2 two counts of stalking,3 two counts of harassment,4 two counts of solicitation to commit evidencetampering,5 one count of solicitation to commit perjury,6 one count of attempted murder,7 one count of possessing an instrument of crime,8 one count of recklessly endangering another person,9 one count of aggravated jury tampering,10 and one count of conspiracy to commit aggravated jury tampering.11 Appellant averred that he was unable to afford an attorney and, therefore, Attorney Brian Manchester was appointed to represent Appellant.
On June 28, 2011, Appellant moved in limine to bar the expert testimony of Trooper Todd Neumyer regarding ballistic evidence. Soon thereafter, Attorney Manchester withdrew as counsel. Attorney Karen Muir was appointed to represent Appellant. The trial court then held a hearing on Appellant's motion in limine. On November 3, 2011, the trial court denied the motion in limine.
On January 31, 2012, Appellant requested that the trial court terminate Attorney Muir and appoint new counsel. After holding anevidentiary hearing on Appellant's pro se request, the trial court denied the request for appointment of new counsel. Thereafter, Appellant filed a pro se motion pursuant to Pennsylvania Rule of Criminal Procedure 600(E). In that motion, Appellant stated that he wished to represent himself.
On April 5, 2012, Appellant requested information regarding any benefit the Commonwealth would bestow on Dunlap for his testimony. On April 12, 2012, the Commonwealth informed Appellant that it was not offering Dunlap any benefit for his testimony. The next day, Appellant filed a motion to dismiss alleging that the Commonwealth lied when it averred that Dunlap would receive no benefit for his testimony. The trial court held an evidentiary hearing on the motion and, on April 16, 2012, Appellant's motion to dismiss was denied.
Trial commenced on April 17, 2012. Each day, prior to the jury entering the courtroom, the trial court conducted a waiver of counsel colloquy with Appellant. Each time, he reaffirmed that he wished to proceed pro se. On April 19, 2012, Appellant was found guilty of all 19 charges.
On June 13, 2012, Appellant filed a pro se motion seeking reappointment of counsel. Thereafter, Attorney Muir was reappointed to represent Appellant. On July 3, 2012, a sentencing hearing was held. On July 12, 2012, Appellant filed a pro se post-sentence motion. Also on that date, the Commonwealth filed a post-sentence motion. On August 14, 2012, the trial court modified a portion of Appellant's sentence. On August 31,2012, the trial court granted the Commonwealth's post-sentence motion, vacated certain aspects of Appellant's July 3, 2012 sentence, and resentenced Appellant on certain counts. After those modifications, Appellant's aggregate sentence was 36¼ to 73 years' imprisonment, including 20 to 40 years' imprisonment on the attempted murder charge. Also on August 31, 2012, the trial court denied Appellant's post-sentence motion.
On September 28, 2012, Appellant filed a timely notice of appeal. This Court dismissed the appeal for failure to file a brief. Commonwealth v. Brooks, 1713 MDA 2012 (Pa. Super. Nov. 26, 2013) (per curiam). On February 24, 2014, Appellant filed a pro se petition pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541-9546. Thereafter, Appellant retained private counsel who filed an amended PCRA petition. On May 8, 2014, the PCRA court granted the petition and reinstated Appellant's direct appeal rights nunc pro tunc. This appeal followed.12
Appellant presents five issues for our review:
3. Did the trial court err in denying the motions in limine seeking to exclude and/or limit the testimony of Trooper Todd Neumyer regarding his findings upon conducting ballistics testing and comparison of shotgun shell wadding, pellets, plastic shot cups, and a shotgun?
4. Did the trial court err in imposing an illegal sentence of 20 to 40 years['] imprisonment for attempted murder pursuant to 18 Pa.C.S.[A.] § 1102(c), which requires a specific finding that serious bodily injury must have resulted from the attempted murder precedent to issuing the maximum term of imprisonment of not more than 40 years?
5. Did the sentencing court abuse its discretion in violating general sentencing principles in imposing a manifestly excessive sentence of consecutive terms of imprisonment at [eight] counts, without providing sufficient reasons to justify a de facto life sentence of 36 years, 3 months to 73 years' imprisonment?
In his first issue, Appellant contends that the trial court erred by denying Appellant's motion for appointment of new counsel. "Both the right to counsel and the right to self-representation are guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section Nine of the Pennsylvania Constitution." Commonwealth v. Phillips, 93 A.3d 847, 851 (Pa. Super. 2014) (citation omitted). "A motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons." Pa.R.Crim.P. 122(C). "To satisfy this standard, a defendant must demonstrate that he has an irreconcilabledifference with counsel that precludes counsel from representing him." Commonwealth v. Keaton, 45 A.3d 1050, 1070 (Pa. 2012) (internal quotation marks and citation omitted). As this Court explained, Commonwealth v. Smith, 69 A.3d 259,...
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