Appeal, No. 30, Oct. T., 1960, from judgment of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, Feb. T., 1958, Nos. 115 and 116, in case of Commonwealth of Pennsylvania v. Patrick DeMarco. Appeal dismissed.
John Rogers Carroll, with him Howard Gittis, for appellant.
Augustine J. Rieffel, Assistant District Attorney, with him Domenick Vitullo, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 193 Pa. Super. Page 18]
This is an appeal by defendant from judgment of sentence imposed after a verdict of guilty rendered by a jury in the Court of Quarter Sessions of Philadelphia County on charges of unlawfully carrying a firearm without a license, assault and battery, and aggravated assault and battery.
Defendant did not file a motion in arrest of judgment or for a new trial although, at the conclusion of the trial, he was specifically warned by the court to file his motions, if he so intended, within four days. To this defendant answered: "I will make a motion when I talk it over with my lawyer." More than eight months later, when defendant was sentenced to a term of not less than one year nor more than three years in the Philadelphia County Prison to begin at the expiration of the sentence he was then serving, neither he nor his then attorney raised any question pertaining to alleged errors at the trial.
Defendant on this appeal contends there was error in the court below in that he was denied the effective representation of counsel of his choice, and that an inadvertent reference by counsel for defendant to defendant's prior conviction for another crime was ground for a new trial.
We have repeatedly stated that matters not properly raised in the court below cannot be invoked on appeal. Com. v. Mays, 182 Pa. Superior Ct. 130, 131, 132, 126 A.2d 530; Com. v. Pittman, 179 Pa. Superior Ct. 645, 647, 118 A.2d 214. This rule applies even
[ 193 Pa. Super. Page 19]
when the question belatedly raised is a constitutional one. Com. v. Cauffiel, 298 Pa. 319, 320, 148 A. 311. While the general rule has occasionally been relaxed because of extraordinary circumstances, it is the intention of this Court that it should be enforced. Com. v. Mays, supra, 182 Pa. Superior Ct. 130, 132, 126 A.2d 530. We have concluded that the rule must be applied in the case at bar.
We have nevertheless examined the record and find no merit in the questions raised by appellant. Cf. Com. v. Lewis, 187 Pa. Superior Ct. 231, 234, 144 A.2d 441. There is no question but that a defendant has a constitutional right to choose, at his own cost and expense, any counsel that he may desire. But in Com. v. Novak, 395 Pa. 199, 214, 150 A.2d 102, 110, it was said: "The accused's right to choose counsel must be exercised at a reasonable time and in a reasonable manner. ... He was never denied the opportunity to exercise this right. Defendant knew when his case would be called for trial. He could not wait until the very day of his trial to choose another counsel." At the beginning of defendant's trial, Albert S. Oliensis, Esquire, asked defendant: "Do you want me to represent you?" Defendant replied: "Yes, all right." Mr. Oliensis had previously represented the defendant, and while acting as his counsel in the present case he capably represented defendant. At the beginning of the second day ...