Com. v. Wolfe

Citation301 Pa.Super. 187,447 A.2d 305
PartiesCOMMONWEALTH of Pennsylvania v. James M. WOLFE, Appellant.
Decision Date25 June 1982
CourtSuperior Court of Pennsylvania

H. Brown Fry, Mifflintown, for appellant.

Randall E. Zimmerman, Dist. Atty., Mifflintown, for Commonwealth, appellee.

Before PRICE, BECK and JOHNSON, JJ.

JOHNSON, Judge:

Appellant was charged with burglary, 1 theft, 2 receiving stolen property 3 and conspiracy. 4 The charges arose out of an incident on Sunday October 29, 1978, when the appellant and a co-conspirator allegedly removed a safe containing cash, stamps, keys and business records from the office of the president of a shirt manufacturing plant. Following a jury trial, appellant was found guilty and sentenced to pay the costs of prosecution, to make restitution to the victim and to undergo imprisonment in a state institution for not less than two years and three months and not more than six years, with credit for time served.

We reverse and grant a new trial.

Because of the nature of the errors asserted in this appeal it is necessary to recount in some detail the developments at the trial.

On the day of trial, Tuesday, May 8, 1979, trial defense counsel filed notice of an alibi defense, 5 having only been made aware of such defense the day before. At trial the Commonwealth's evidence consisted of the testimony of an alleged accomplice, Bonnie Wieseman, an employee of the shirt factory, who testified to having accompanied the co-conspirators in her car to and from the shirt factory on the evening of the burglary. The Commonwealth then called Patricia Zong to the stand. This prompted a sidebar conference at which the Commonwealth's offer of proof showed that Mrs. Zong would testify that appellant and his co-conspirator had brought the safe in question to her house and opened it with her tools.

Defense counsel, at sidebar, objected to the introduction of this testimony, claiming surprise because the name of this witness had not been given to him by the Commonwealth in its response to his informal request for discovery. See Pennsylvania Rules of Criminal Procedure 305, 42 Pa.C.S.A. (Purdon Pamp.1982). The judge ordered a recess. From that point, until trial resumed the next morning, the jury was not present at any of the proceedings involved in this appeal. After the recess the judge decided that there was a question as to whether or not Mrs. Zong was an "eyewitness", but that to resolve the matter he would give defense counsel an opportunity to interview her before she testified.

In anticipation of a possible assertion by Mrs. Zong of the fifth amendment privilege against self-incrimination, special counsel was summoned by the court to advise Mrs. Zong. Following discussion with special counsel Mrs. Zong refused to testify, asserting her fifth amendment privilege. The judge ruled that the privilege was properly asserted, and after further discussion on matters not pertinent to this appeal, ordered another recess.

The record shows that during the recess defense counsel had raised a matter with the judge in camera. The judge decided that this should be a matter of record. Accordingly he directed defense counsel, the defendant, a court reporter and deputy sheriffs to retire to his chambers for an in camera conference. There, defense counsel explained that until the offer of proof of Mrs. Zong's testimony he had planned to defend the charges on the basis that the defendant was innocent. But upon counsel's asking the defendant about Mrs. Zong and her proffered testimony, the defendant responded that he thought he had told counsel that he had committed the burglary.

Defense counsel told the court that he concluded therefore that as he would then be offering perjured testimony from the defendant and the two alibi witnesses he must withdraw from the case in order not to violate an ethical rule by aiding in the commission of perjury. The judge pointed out that defense counsel did not necessarily know that the alibi witnesses would be lying. Defense counsel disagreed and insisted upon withdrawing even on pain of being cited for contempt. The judge finally permitted the withdrawal, and informed the defendant that he would appoint the public defender in order that the trial proceed.

The defendant stated at least three times during this colloquy that he did not want the public defender, and wanted to acquire counsel of his own choice. The judge's reaction to this objection to the public defender was, on the record, as follows:

I think my obligation to the defendant and to the court and to the public is to provide as fair a trial as I can under the circumstances. I am reluctant to even let you move for a mistrial at this point or continue the case because I don't know that that would be a voluntary decision on your part. What I have told you is that I will substitute Mr. Manbeck. Whether you use him or not is up to you. You indicate that you don't want him and you can't represent yourself and the obvious answer would be to postpone the trial; but to do that, under the circumstances, is not a voluntary decision on your part--to move for a mistrial and terminate this trial.... You don't have counsel. The counsel I have assigned for you you don't want and it is in the middle of the trial. I think I must direct that this trial continue with Mr. Manbeck as back-up counsel to sit in, and you can use him to the extent that you want to use him, and see how it goes.

The judge then called the jury back into the courtroom and excused them for the rest of the day, thus giving the substituted counsel some hours to prepare for the rest of the trial.

The next morning, Wednesday, May 9, 1979, the appointed defense counsel made a motion for a continuance in order that the defendant be able to acquire counsel of his own choosing. This motion was denied. Trial resumed. Mrs. Zong did not testify. The alibi witnesses did testify. The defendant did not testify. The jury found the defendant guilty of burglary, theft and conspiracy, which verdict the judge molded to guilty of burglary and conspiracy.

This appeal is brought by a third counsel. Appellant asserts firstly that the omission of Mrs. Zong's name from the Commonwealth's response to defense counsel's informal request for discovery so prejudiced his right to a fair trial that he should have a new one. He asserts secondly that being without effective counsel at the in camera conference he was unable to request a mistrial and therefore the trial court erred in not declaring a mistrial sua sponte. Because of the result we reach in this case we shall deal firstly with appellant's second assertion.

To begin with, we note that no-one at any time made a motion for a mistrial, although the judge did raise the matter at the in camera conference as quoted above. 6 Secondly, the substitute counsel did actually move for a continuance. Thirdly, the defendant's repeated statements to the judge in camera that he refused appointed counsel and wanted to retain his own counsel were tantamount to requests for the time and opportunity to do so. We choose therefore to frame the issue before us in terms of the propriety of the denial of a motion for continuance, rather than of a non-existent motion for mistrial.

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. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). The Supreme Court of the United States has said:

[I]t is not every denial of a request for more time that violates due process even if the party ... is compelled to defend without counsel .... Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.... 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, 589, 84 S.Ct. 841, 849-850, 11 L.Ed.2d 921, 931 (1964) (emphasis added) (citations omitted) (no deprivation of the right to counsel where the appellant had been given five days' notice of the hearing in question, where the witnesses were available, the evidence fresh and available, two short continuances had already been granted, and the motion at issue was made on the day of the hearing).

In Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973), the petitioner was an attorney challenging a local rule of court which prohibited attorneys representing ten or more criminal defendants whose indictments were over twelve months old from entering an appearance in any additional criminal cases. Our Supreme Court said:

It is clear we must balance conflicting rights which reach constitutional proportions in order to resolve this case. On the one hand we have the right of criminal defendants to counsel of their choice and the right of attorneys to practice criminal law. On the other, we have the state's constitutional duty to provide speedy trials and its obligation to its citizens to have criminal violations adjudicated quickly.

451 Pa. at 309, 306 A.2d at 288-289. This balancing test has since been applied by our appellate courts in cases involving a defendant's insistence on certain counsel where such insistence would necessitate a last-minute postponement of the scheduled trial. See Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976) (no abuse of discretion in the denial by the trial court of a continuance where privately retained counsel had taken no action to prepare for trial, not communicated with his client, not responded to any notices of the date of trial, one continuance had already been granted, and a...

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