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COMMONWEALTH v. WARNER (12/16/66)

decided: December 16, 1966.

COMMONWEALTH
v.
WARNER, APPELLANT



Appeals from judgments of Court of Quarter Sessions of Bucks County, March T., 1964, Nos. 140, 141, and 141a, in case of Commonwealth of Pennsylvania v. Jack Warner.

COUNSEL

Charles F. G. Smith, for appellant.

William J. Carlin, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Hoffman, J. Dissenting Opinion by Watkins, J.

Author: Hoffman

[ 209 Pa. Super. Page 218]

Appellant, Jack Warner, was charged and convicted of receiving stolen goods, conspiracy and being an accessory before and after the fact. The charges arose in connection with the alleged embezzlement and fraudulent conversion of approximately $72,000 from the Chelsea Title and Abstract Company of Pennsylvania, Inc. [Chelsea Title], by John J. Byers, an officer of Chelsea Title. Of this amount $20,000 was used by Byers to replace funds which he had previously embezzled from his account as real estate transfer tax agent for the Commonwealth of Pennsylvania; the balance was received by appellant and used by him in his construction business. In light of the arguments presented on appeal, we do not feel it necessary to review in greater detail the facts in this case other than as they appear below.

I

Appellant contends that he was denied the effective assistance of counsel of his own choice because the court (1) refused short continuances despite appellant's assurances that with a little more time he could afford private counsel of his own choice, and (2) appointed young and inexperienced counsel who had no prior knowledge of this case.

Appellant was arrested in September of 1963, and was represented by counsel of his own choosing. In May of 1964, the case was tried for the first time, but the jury was unable to agree upon a verdict. The jury was

[ 209 Pa. Super. Page 219]

    discharged, and the case was continued until September. On September 28, 1964, the date scheduled for retrial, appellant appeared without counsel and requested a continuance. He stated that he had failed to amass sufficient funds to pay his attorney. It further appears that appellant knew as early as September 10, 1964, that his attorney would not represent him unless this fee were paid. Nonetheless, he requested that the case be continued until November 10, at which time he expected to have sufficient funds.

The court, thereupon, granted a continuance until the session of criminal court scheduled for October 21. The court explained to appellant, however, that if it should appear that he would be unable to obtain the services of private counsel by that date, he should communicate with the court and competent counsel would be appointed for him. The court also emphasized that no further continuances would be granted due to lack of counsel.

Appellant took no further action. On October 19, 1964, however, the district attorney filed a petition asserting that appellant was not yet represented by counsel and requesting that the court appoint counsel for him. On that date, the court appointed Robert H. Yaroschuk to represent appellant and again advised appellant that the case would be tried on October 26. It further advised him that he might retain his prior counsel, but that Mr. Yaroschuk would be available to represent him. Appellant was warned by the court that Mr. Yaroschuk would need time to prepare for trial. Nonetheless, appellant did not consult with Mr. Yaroschuk until approximately 10:15 a.m. on October 24, 1964, two days before the trial. Mr. Yaroschuk did have an opportunity to review the testimony in the first trial, however, and thus become familiar with the case.

It is within the discretion of the trial judge to grant or refuse a continuance, and his action will not be disturbed

[ 209 Pa. Super. Page 220]

    in the absence of a manifest abuse of discretion. Commonwealth ex rel. Bronzell v. Myers, 205 Pa. Superior Ct. 375, 378, 208 A.2d 871, 873 (1965). In light of the above facts the trial court did not abuse its discretion in refusing to grant a second continuance. Appellant was well aware many weeks before the second trial that his own attorney might withdraw from the case. The court was prepared to appoint Mr. Yaroschuk who might begin to work on the case, even though the status of appellant's own attorney was still unclear. Every reasonable effort was made by the court to protect appellant's right to counsel. The duty did not devolve upon it, however, to continue appellant's case indefinitely until he might accumulate sufficient funds to pay an attorney of his own choosing.

In addition, we have made a close review of the whole trial record and can find no basis for appellant's contention that Mr. Yaroschuk was incompetent or insufficiently prepared. Moreover, any difficulties which Mr. Yaroschuk may have encountered in preparing for this case were undoubtedly due, in great measure, to appellant's reluctance to consult with him until two days before trial. "Having delayed in accepting that counsel, he cannot now complain of his own neglect." Commonwealth ex rel. Bronzell v. Myers, supra at p. 378.

The examples of Mr. Yaroschuk's alleged incompetence are without merit. We find that Mr. Yaroschuk expended great efforts on behalf of his client and was more than competent. We are satisfied that appellant has no valid ...


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