Com. v. Kittrell

• Decision Date: 03 April 1981
• Citation: 285 Pa.Super. 464,427 A.2d 1380
• Parties: COMMONWEALTH of Pennsylvania, v. Roy Wilbur KITTRELL, Appellant.
• Court: Pennsylvania Superior Court

Page 1380

427 A.2d 1380

285 Pa.Super. 464

COMMONWEALTH of Pennsylvania, v. Roy Wilbur KITTRELL, Appellant.

Superior Court of Pennsylvania.

Argued March 6, 1980.

Filed April 3, 1981.

[285 Pa.Super. 466] Gerald E. Ruth, York, for appellant.

Sheryl A. Dorney, Asst. Dist. Atty., York, submitted a brief on behalf of Commonwealth, appellee.

Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.

MONTGOMERY, Judge:

The defendant-appellant, Roy Wilbur Kittrell, having been convicted of Recklessly Endangering Another Person, ¹ and two counts of Terroristic Threats ² now brings this appeal from the judgment of sentence following the dismissal of his post-trial motions. He raises three issues. First he argues he was not afforded reasonable opportunity to obtain private counsel of his choosing. Secondly, he argues he was denied effective assistance of counsel. Lastly, he contends his sentence of not less than three years and not more than eight years in a state penitentiary was excessive.

CONTINUANCE

Appellant was charged on April 6, 1979 and held on $30,000.00 bail, later reduced to $25,000.00 which he could not post. He remained in jail awaiting trial from the date he was charged until July 19, 1979 when his case was called for trial. During this period, he was represented by a public defender, who appeared with him on July 19th and made his first request for a continuance so that he might engage private counsel. Appellant testified he had made two unsuccessful attempts to secure private counsel while he was confined in jail where he was restricted to two phone calls a week; and that he had an income of $250.00 per month from social security; also that he had money in the bank and that his nephew would supply money.

His request was denied for the reasons that (1) the court did not believe that he had means to obtain private counsel, (2) that he had sufficient opportunity to engage private counsel before trial, and (3) that his request for a continuance was an attempt to delay the trial without a valid reason. At the time appellant's request was made, the Commonwealth was ready to proceed with the trial, having all of its witnesses, albeit few in number, in court.

The allowance of continuances is largely a matter within the discretion of the lower court and the denial of a continuance does not constitute reversible error unless there is an abuse of discretion. Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). It must not be overlooked that one charged with crime has a constitutional right to choose at his own cost and expense any lawyer he may desire. Const. of Pennsylvania Art. 1, § 9, Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (102) cert. denied, 361 U.S. 882, 80 S.Ct. 152, 4 L.Ed.2d 118 (1959), reh. den. 361 U.S. 926, 80 S.Ct. 290, 4 L.Ed.2d 241 (1959).

Generally in determining the question of whether a court abuses its discretion in denying a continuance, an accused's right to choose a particular counsel, which is not absolute, must be weighed against the public need for the efficient and effective administration of justice. Commonwealth v. Atkins, 233 Pa.Super. 202, 336 Viewing this case in light of these principles, we cannot say the lower court abused its discretion under the circumstances present herein. The appellant claimed he had money from social security payments, had money in the bank, and had made unsuccessful efforts to secure other counsel, yet he waited until the day his case was called for trial before seeking a continuance, a tactic condemned in Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). Furthermore, he advanced no irreconcilable differences with the public defender who had represented him for over four months, as was the case in Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976). Merely expressing dissatisfaction, his incarceration in the York County jail would not have prevented him from making his request at an earlier date.

A.2d 368 (1975). In determining this issue, each case must be decided by balancing the competing interests. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), reh. den. 377 U.S. 925, 84 S.Ct. 1219, 12 L.Ed.2d 217 (1964).

On the other hand, the Commonwealth and the court were both ready to proceed. A continuance under the circumstances would have disturbed the efficiency and effectiveness of the administration of justice by rescheduling the case and revising subpoenas with the resulting lost time of the witnesses.

INEFFECTIVENESS OF COUNSEL

Secondly, appellant alleges the ineffectiveness of trial counsel. Specifically, he complains that counsel (1) failed to question or challenge any jurors, (2) failed to make his opening statement at the beginning of trial, (3) failed to call a known and available eyewitness or any character witnesses, and (4) failed to phrase questions on cross-examination to appellant's liking. ³

The test for determining whether counsel is ineffective is well-known in this Commonwealth. If the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests, then counsel's assistance must be deemed constitutionally effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978). The corollary to this test is that since "... counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion." Commonwealth v. Hubbard, 472 Pa. 259, 277, 372 A.2d 687, 695 (1977).

Claims numbered 1, 2, and 4 are clearly specious. A voir dire was conducted, although not recorded. The mere fact that no jurors were challenged without more cannot be determinative of one's efficacy as trial counsel. Similarly, the delay of defense counsel's opening statement indicates only a reasonable trial tactic designed to effectuate his client's interests by minimizing the Commonwealth's evidence and detailing the defense to the jury immediately prior to its presentation. Such a course of action certainly has a rational basis and meets this Commonwealth's standard for determining that defense counsel's assistance was effective. See Commonwealth ex rel Washington v. Maroney, supra, Commonwealth v. Reidenbaugh, --- Pa.Super Appellant's assertion that an eye-witness was not called merits some discussion but fails to persuade us of counsel's purported ineffectiveness. In order to analyze appellant's claim, we must first review the facts of the offense.

---, 422 a.2D 1126 (1980). finALly, claim number 4 is meritless. We have carefully reviewed defense counsel's cross-examination of the prosecution witnesses and find it to be thorough and penetrating.

Appellant had been experiencing some difficulty with a neighbor in his apartment building, Ifrain Rodriguez. In order to show Rodriguez that he would not be intimidated, appellant went to Rodriguez' apartment with a gun. When Rodriguez answered the door, appellant fired the gun into the wall to demonstrate that he was armed. Rodriguez called the police after appellant returned to his apartment. When the police arrived and approached his apartment, appellant was holding a gun in his hand. He admitted officer Dennis O'Neill into his apartment and informed the police officer that it was time for him to die and that he would kill two white policemen before he did so. Eventually, additional police forces subdued the appellant and he turned his weapon over to them.

The eye-witness, another neighbor, who appellant claims should have been called, would have allegedly testified to substantially the same facts as stated above. ⁴ He was outside appellant's apartment during most of the incident, but did catch a glimpse of appellant and his gun at one point. He attempted to enter and reason with the appellant, but the police, fearing for his safety, prevented him from doing so.

In the case at bar, we have reviewed the testimony of the alleged eye-witness and find that he would have added nothing of any significance to appellant's defense. He was not present at the instigation of this scene when appellant threatened Mr. Rodriguez and he was not permitted to enter appellant's apartment during the confrontation with the police. He admitted in his affidavit that he only came downstairs from his apartment when the situation became heated. Therefore, he was not even present during the entire affair.

Since his testimony would have added nothing of value and would have been limited in scope, counsel was not ineffective in failing to call him to the stand. ⁵ Case law has made it clear that counsel need not protect himself from allegations of ineffectiveness by making every possible motion or objection, or by calling every possible witness, if there is no merit to such conduct. See Commonwealth v. Howard, 258 Pa.Super. 440, 392 A.2d 875 (1978), Commonwealth v. Lee, --- Pa.Super. ---, 414 A.2d 367 (1979).

SENTENCE

Finally appellant contends that the sentence imposed was an arbitrary abuse of discretion and unduly severe under all the circumstances. ⁶ Appellant, sixty-six (66) years old at the time of the offense in April, 1978, was convicted of Recklessly Endangering Another Person ⁷ and two Sentence Counts of Terroristic Threats. ⁸ Sentence was suspended as to the first charge but, on the two charges of Terroristic Threats, he was sentenced to serve two successive terms of imprisonment totalling not less than three (3) years nor more than eight (8) years.

The pre-sentence investigation reflected a record containing convictions for...