DocketNumber： 203
Judges： Spaeth, Hester, Cavanaugh
Filed Date： 10/24/1980
Status： Precedential
Modified Date： 10/19/2024
Appellant, Michael Leo Andrews, was tried by a jury and convicted of burglary, conspiracy and possessing instruments of crime. The trial judge denied appellant’s motions for a new trial and in arrest of judgment. He was sentenced to a term of imprisonment. Appellant filed an application for reconsideration of sentence, nunc pro tunc, which was denied. This appeal followed.
Appellant raises several arguments on appeal based on the trial court’s refusal to grant him a continuance when defense counsel failed to appear at the time of trial. Appellant proceeded to trial without representation by counsel. His case was tried with that of his co-defendant, who was represented by counsel. Before addressing the specific arguments raised by Andrews, a recitation of the facts is needed.
On June 10, 1976 a complaint was filed charging Andrews with the offenses. Trial was originally scheduled November 23, 1976 but the appellant failed to appear. A bench warrant was issued, but appellant was not rearrested until October, 1977. On October 7, 1977 the defendant was arraigned and trial was rescheduled for November 14. During the arraignment appellant was questioned about retaining counsel and informed of his right to appointed counsel:
THE COURT: Do you understand you have the right for Counsel to be appointed free of charge if you can’t afford it? Do you understand that?
*120 THE DEFENDANT: Yes, sir.
THE COURT: If you wish to retain your own Counsel you mad (sic) do so. Is that what you wish to do?
THE DEFENDANT: That’s what I wish to do.
THE COURT: When is this case scheduled?
MR. KENEEFF: Monday, November 14, 1977.
THE COURT: You will appear at that time, Mr. Andrews, and you are assuring the Court you will have your own Counsel. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: We don’t want any delay at that time in which you say you haven’t made arrangements. We expect it to go to trial on that date.
THE DEFENDANT: Yes, sir.
THE COURT: You say you are making arrangements or have made arrangements?
THE DEFENDANT: I expect the attorney to be today. THE COURT: Who is the attorney?
THE DEFENDANT: Mitchell Lipschultz (sic, Lipschutz) of Philadelphia was supposed to contact somebody here.
THE COURT: You make sure you have him here and have him enter an appearance for you.
(N.T., p. 4-5)
Five weeks later a post-arraignment hearing was held where Andrews was again questioned about counsel and told of the necessity that counsel appear. He stated again that he was represented by Lipschutz although he had not entered his appearance on behalf of the appellant.
Despite these warnings the appellant appeared without counsel on the day of trial. He claimed that Mitchell S. Lipschutz, a private attorney, had been retained but could not be present:
DEFENDANT ANDREWS: Your Honor, I spoke to my lawyer Thursday, and he said he definitely represents me. He is in court in Philadelphia this morning, and he asked*121 me to ask the Court to postpone the case until he can get out of the business he is handling.
(N.T., p. 10)
The record discloses that the only communication with Mr. Lipschutz took place when Mr. John C. Brighton, assistant court administrator for the criminal division, telephoned Lipschutz. Because during the post-arraignment hearing Andrews claimed he had retained Lipschutz, Brighton telephoned to verify this. Mr. Brighton was called to testify concerning this conversation:
THE COURT: Did you reach Mr. Lipschitz (sic, Lipschutz)?
THE WITNESS: Yes, sir, I did.
THE COURT: Did you talk to him?
THE WITNESS: Yes, sir, I did.
THE COURT: What was your conversation?
THE WITNESS: Well, sir, he told me that there was no way that he could be here Monday because of the fact that he would be on trial at city hall in Philadelphia.
THE COURT: Did he indicate to you whether he represented Mr. Andrews?
THE WITNESS: Yes, sir, he did. He said—
THE COURT: What did he say?
THE WITNESS: He said that he had simply received a letter from the gentleman saying he wanted to be represented, but that is as far as it went, because no monies were exchanged, and nothing else was done. He was waiting for some other word, but as far as he was concerned, he had not been retained.
THE COURT: He had not been retained by Mr. Andrews?
THE WITNESS: Yes, sir, he had not.
I further informed him that—of my position with the court, and that I intended to give the gentleman a public defender in case he would not be here, and he told me that he thought that was a good idea, because he couldn’t be here because he was on trial in Philadelphia.
*122 THE COURT: But Mr. Lipschitz stated that he had not been retained by Mr. Andrews?
THE WITNESS: Yes, sir, he did.
(N.T., pp. 16-18) The appellant did not refute Brighton’s testimony but stated “What [Mr. Brighton] says is right.” However, he claimed, two hours after Brighton’s call appellant himself telephoned Lipschutz, who said that he definitely represented the appellant.
The lower court, treating what the appellant stated in the colloquy as a request for a continuance, denied the motion. The lower court ordered that a public defender be appointed “to sit with Mr. Andrews, and to be available to Mr. Andrews for such consultation or participation as Mr. Andrews determines to permit him in connection with the conduct of the case.” (N.T. at 22) The trial proceeded. Neither Andrews nor the public defender participated in the proceedings. The following day the jury convicted Andrews of all charges.
I.
Appellant maintains that the court’s refusal to grant a continuance when appellant’s counsel could not appear violated his constitutionally-protected right to counsel in that he was not given a reasonable opportunity to obtain counsel of his choice. It is clear that the right to assistance of counsel at trial includes the right to a reasonable opportunity to obtain private counsel of one’s choice. Common
In Moore v. Jamieson, 451 Pa. 299, 308, 306 A.2d 283, 288 (1973), this court specifically held that the right of the accused to choose his own counsel, as well as a lawyer’s right to choose his clients, must be weighed against and may be reasonably restricted by “the state’s interest in the swift and efficient administration of criminal justice.” Although the accused may personally elect to waive his right to a speedy trial, he clearly cannot be permitted to utilize his right to choose his own counsel so as unreasonably to clog the machinery of justice and hamper and delay the state in its efforts to do justice with regard both to him and to others whose rights to a speedy trial may thereby be affected, (emphasis in original)
See also United States ex rel. Carey v. Rundle,
Thus in determining whether a continuance should be granted the trial judge must weigh the desirability of permitting a defendant additional time to obtain counsel of his choice against the equally desirable public need for efficient and effective administration of justice. Commonwealth v. Simpson, 222 Pa.Super. 296, 294 A.2d 805 (1972). We note, however, that the grant or denial of a continuance is traditionally a matter within the sound discretion of the trial court. Commonwealth v. Richardson, 392 Pa. 528, 140
[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or 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 in every case, particularly in the reasons presented to the trial judge at the time the request is denied.
Commonwealth v. Atkins, 233 Pa.Super. 202, 207-208, 336 A.2d 368, 371-2 (1975), quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). Applying this standard this court in Commonwealth v. Simpson, supra, held that where the defendant had had a period of eight months between the date of arrest and trial to secure private counsel and had been granted a continuance of one month to obtain an attorney of his choice, the defendant was not deprived of due process by the court’s refusal to grant a second continuance. When requesting the second continuance the defendant did not indicate when, if ever, he would be able to raise sufficient funds to secure private counsel. In Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102, cert. denied, 361 U.S. 882, 80 S.Ct. 152, 4 L.Ed.2d 118 (1959), the Supreme Court upheld the trial court’s refusal to allow private counsel for defendant to withdraw: “Defendant had a period of almost two years in which to procure counsel to his liking and in whom he could have confidence. He was never denied the opportunity to exercise the right. Defendant knew when his case would be called for trial. He could not wait for the very day of trial to choose another counsel.” 395 Pa. at 214, 150 A.2d at 110. For a similar result see Commonwealth v. Minifield, 225 Pa.Super. 149, 310 A.2d 366 (1973). There it was held that the lower court did not err in refusing a continuance where defendant, represented by a
In Commonwealth v. Atkins, 233 Pa.Super. 202, 336 A.2d 368 (1975), however, this court held that the lower court abused its discretion when it denied defendant’s request for a continuance so that she could obtain other private counsel. There the defendant had made only one request for a continuance and was laboring under the misapprehension that the attorney who represented her at the preliminary hearing would act as trial counsel and not his associate, whom she did not want as trial counsel. Likewise in Commonwealth v. Ross, 465 Pa. 421, 350 A.2d 836 (1976), the court held that the lower court erred in refusing a continuance. There the trial date was less than three months after defendant’s arrest. During the period he was in jail, Ross sought to have private counsel appointed and once released he immediately set about hiring a private attorney. The court also noted that there was no basis for the trial court’s conclusion that the defendant’s request for an attorney of his own choice was made in bad faith or for the purpose of delaying his trial.
In the instant case, when we examine the reasons presented to the trial judge at the time the request for a continuance was denied, we find no abuse of discretion. Appellant argues that the record is void as to whether the appellant was given sufficient opportunity to obtain counsel. To the contrary, however, the record reveals that the appellant had been given ample opportunity to obtain counsel. At both the arraignment of October 7, 1977 and the post-arraignment proceeding of November 10, 1977 the appellant was cautioned by the judge that trial would commence on November 14, 1977, and that he should have his attorney, whom he claimed represented him, enter his appearance on behalf of the appellant and appear on the day of trial. However, on the day of trial-a full seventeen months after
II.
Appellant argues that the lower court attempted to have him waive his right to counsel. He maintains that he never waived his right to counsel and, to the contrary, indicated at all times that he wanted counsel to represent him at trial.
The question in this case is not the irresponsibility of the private attorney towards the defendant and the court, but the question of whether the trial court deprived the appellant of his constitutionally-guaranteed right to counsel. See Commonwealth v. Robinson, supra, 468 Pa. at 592, 364 A.2d at 674. A finding of waiver of the right to counsel will not be lightly made:
To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments, thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.
Commonwealth v. Fowler, 271 Pa.Super. 138, 142, 412 A.2d 614, 616 (1979). The records reveals, however, that Andrews made a knowing and intelligent waiver of his right to representation and that such waiver was made despite advice by the court to the contrary. As noted above, on October 7, 1977, forty-five days prior to trial, the appellant was advised of his right to court-appointed counsel. When he appeared at trial without counsel, the trial judge conducted an extensive colloquy. This colloquy comported with the requirements stated in Fowler as well as Rule 318(c), Pa.R.
(c) Proceedings Before a Judge. When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary and intelligent waiver of counsel.
See also Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976). In the comment to Rule 318 it is recommended that the trial judge, at a minimum, ascertain the following information from the defendant:
(1) That the defendant understands that he has the right to be represented by counsel, and the right to have free counsel appointed if he is indigent.
(2) That the defendant understands the nature of the charges against him and the elements of each of those charges.
(3) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
(4) That the defendant understands that if he waives the right to counsel he will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules.
(5) That the defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently.
(6) That the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to or otherwise timely raised by the defendant, these errors may be lost permanently.
The trial judge complied fully with this recommendation. He initiated the colloquy by asking Andrews if he was aware of his right to representation by counsel, and to free court-appointed counsel if indigent. Andrews stated that he understood these rights. (N.T., p. 5). He proceeded to explain
THE COURT: The Court has not had any communication from any counsel, Mr. Andrews, and we are proceeding with the trial, and I am asking you whether you understand the occurrences which go in a trial, and as to this point, I am asking whether you understand that if you waive the right of counsel, you will still be bound by all the normal rules of procedure, and counsel will be familiar with these rules; do you understand that?
DEFENDANT ANDREWS: No, I don’t understand it.
THE COURT: Well, in a courtroom, Mr. Andrews, there are certain rules of procedure which exists (sic), and you will be bound by them whether you have an attorney of whether you don’t have an attorney.
DEFENDANT ANDREWS: I understand that, Your Honor. . . .
THE COURT: . . . Are you aware, Mr. Andrews, that there are possible defenses to these charges, which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently?
DEFENDANT ANDREWS: That is why I asked for a postponement, Your Honor. I am sure he has motions he would like to put in.
THE COURT: You are aware, are you, Mr. Andrews, there are possible defenses which counsel might be aware of?
DEFENDANT ANDREWS: No. He is not familiar with the case at all.
THE COURT: But, if you had counsel, then counsel would be aware of, upon your familiarizing him, with the—
DEFENDANT ANDREWS: Oh, yes.
THE COURT: Then he would be aware of possible defenses which you would not be aware of.
*129 DEFENDANT ANDREWS: Yeah, I am sure.
THE COURT: Do you understand that in addition to defenses, the defendant has many rights that if not timely asserted may be lost permanently?
DEFENDANT ANDREWS: Yes, that is why I would rather wait until my lawyer comes. I don’t know anything about it.
THE COURT: You realize there are defenses and rights that may be lost in the conduct of a trial; are you aware of that?
DEFENDANT ANDREWS: No, I don’t have any—.
THE COURT: Well, there are certain things, Mr. Andrews, that go on during a trial, and an attorney has a right, and the individual defendant has a right, at the appropriate time to make objections to what is done in the trial, such as the presentation of certain evidence, that the defendant either himself, or through his attorney, may have the right to make objection to the introduction of that testimony.
DEFENDANT ANDREWS: I understand that.
THE COURT: You understand that if that objection is not made at that time then that right would be lost?
DEFENDANT ANDREWS: I understand that, yes, sir.
(N.T., pp. 10-14) Still Andrews declined court-appointed counsel and continued to unreasonably insist upon being represented by Mr. Lipschutz.
After advising Andrews of the necessity of counsel, the trial judge directed that a public defender be appointed “to sit with Mr. Andrews, and to be available to Mr. Andrews for such consultation or participation as Mr. Andrews determines to permit him in connection with the conduct of the case.” (N.T., p. 22) The appellant chose not to utilize this resource.
Appellant argues that this case is indistinguishable from Commonwealth v. Grant, 229 Pa.Super. 419, 323 A.2d 354 (1974). In Grant the defendant informed the court on the day of trial that he wished to be represented by private
In Grant the court compelled the defendant to waive his right to counsel. In the instant case the appellant was given a reasonable opportunity to obtain private counsel of his choice. Thereafter, he was advised of his right to court-appointed counsel and of the necessity of counsel. He was informed of the charges and their elements, possible sentences and the consequences of waiving the right to counsel. Still Andrews persisted in his demand that only counsel of his choice represent him. When court-appointed counsel was made available to him-not only to sit with the appellant, but to participate to any extent permitted by appellant-he chose to remain uninvolved in the proceedings. Although it is unfortunate that Andrews proceeded in this manner, we hold that his decision to do so was knowing and deliberate. Once it became clear that the application for a continuance was denied, appellant was given the choice to accept or reject court-appointed counsel; his intentional rejection of counsel, given the court’s comprehensive and penetrating colloquy as described above, constituted a waiver.
Appellant further argues that he was denied effective assistance of counsel. This argument, however, is not available to one who insists on self-representation. Appellant states that the complexity of the circumstances involved in appellant’s case were such that one untutored in the law could not represent himself with the skill and understanding that a lawyer would bring to the case. It was precisely of this fact that the trial court advised Andrews on the day of trial. Despite the court’s advice, he proceeded to trial without counsel. Appellant further claims that several times on the record he indicated that he did not understand
III.
Appellant argues that, due to a conflict of interest, he should be given a new trial. A conflict of interest may be established if the appellant can show either: (1) that he had a substantial defense, which was not raised, that was inconsistent with that of his co-defendant; or (2) that counsel neglected his case in order to concentrate on that of the co-defendant. Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970). Appellant alleges neither.
Appellant’s claimed conflict is apparently based solely on the fact that his court-appointed counsel and his co—defendant’s counsel were both from the Lancaster County public defender’s office. Because the appellant did not permit court-appointed counsel to participate in any way, it is clear that he cannot argue that counsel’s performance created a conflict.
IV.
Finally, appellant contends that the lower court abused its discretion by imposing a sentence manifestly excessive under the circumstances. Andrews was sentenced on the charge of burglary to a term of imprisonment of not less than five years nor more than ten. On the conspiracy charge he was sentenced to concurrent terms of not less than five nor more than ten years, and on the charge of possessing instruments of crime he was sentenced to a term of not less than two and one-half nor more than five years, also to run concurrently. Appellant conceded that these sentences are within the statutory limits.
On appeal the sentence is usually left undisturbed because the lower court is in a far better position than the appellate court to weigh factors involved in determining the proper sentence. Commonwealth v. Wareham, 259 Pa.Super. 527, 531, 393 A.2d 951, 952-3 (1978). However, the record must be reviewed to ascertain the judge’s reasons for imposing the particular sentence. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). The sentencing judge must have accurate information, including a presentence report where required, and in arriving at an individual sentence, the judge must consider the character of the defendant and the particular circumstances of the offense. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). Finally, the judge must make his reasons for imposition of the particular sentence clear on the record. Commonwealth v. Riggins, supra. The sentence imposed should be the minimum consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the
It is clear from the record that the sentence imposed is proper. The trial judge considered a presentence report, the character of the defendant and the particular circumstances of the offense. The judge noted that Andrews had served five years in the New Jersey State Penitentiary for breaking and entering. Due to the seriousness of the offenses committed and the existence of an undue risk that the offenses will be repeated if partial confinement or probation is ordered, the court concluded that total confinement for the term stated above was required.
Judgment of sentence affirmed.
. In the post trial brief filed by him on behalf of Mr. Andrews, Lipschutz categorically denied that he ever stated to Mr. Brighton that he did not represent the appellant. He also stated that the question of whether or not a public defender should be appointed was never raised. Counsel stated, “It was always the intention of defense counsel to represent Mr. Andrews, as defense counsel is presently representing him on these post-trial matters. Defense counsel was familiar with the defendant’s matter and was prepared to try the case, if a suitable date could be arranged by the Court Administration.” (Post Trial brief, p. 3) If the foregoing is to be taken to mean that Attorney Lipschutz did intend to represent the appellant at the trial stage of the proceedings, he fails to explain the absence of an entry of appearance or of any communication, save Mr. Brighton’s call, with the lower court.
. In Rundle it was stated:
To permit a continuance to accommodate one defendant may in itself prejudice the rights of another defendant whose trial is delayed because of the continuance. Played to an extreme conclusion, this indiscriminate game of judicial musical chairs could collapse any semblance of sound administration and work to the ultimate prejudice of many defendants awaiting trial in criminal courts. 409 F.2d at 1214.
. Where a defendant seeks to represent himself the court should appoint standby counsel. See Commonwealth v. Africa, 466 Pa. 603, 621, 353 A.2d 855, 864 (1976) (standby counsel appointed to protect Sixth Amendment rights where disruptive behavior of defendants may lead to their removal from the courtroom).
. In Cuyler Correctional Superintendent, et al. v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the United States Supreme Court recently held that in order to demonstrate a violation of his Sixth Amendment right to counsel, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.