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UNITED STATES EX REL. SNYDER v. MACK

March 25, 1974

UNITED STATES of America ex rel. Roger K. SNYDER
v.
Leonard J. MACK, Superintendent


Fogel, District Judge.


The opinion of the court was delivered by: FOGEL

FOGEL, District Judge.

Before us is a petition for a writ of habeas corpus filed by Roger K. Snyder, a state prisoner pro se. Evidence adduced at the trial establishes that on October 13, 1969, a burglary occurred at the Mertztown Post Office in Long Swamp Township, Berks County, Pennsylvania; defendant-relator, who was charged with the crime, was indicted for burglary, larceny and possession of burglary tools, and subsequently convicted by a jury for commission of these offenses. He was thereafter sentenced to serve a term of imprisonment of three to seven years. He then appealed to the Superior Court of Pennsylvania raising substantially the same issues now before us. The judgment of the lower court was affirmed, Commonwealth v. Snyder, 221 Pa. Super. 795, 291 A.2d 880 (1972), and a petition to the Supreme Court of Pennsylvania for allowance of an appeal was thereafter denied on October 24, 1972. *fn1" We are satisfied that all appropriate state remedies have been exhausted. *fn2"

 Previously, petitioner sought to have this court grant a writ of habeas corpus in United States of America ex rel. Roger K. Snyder v. Leonard J. Mack (Civil Action No. 72-75). That petition was denied without reaching the merits of the issues which are now before us.

 Relator's contention that he has been unlawfully detained is based upon alleged error in the rulings of the trial court. We quote his contentions verbatim:

 
1. "Trial Judge erred in denying defendant to move for a mistrial and would not recognize defendant and/or his motions as long as he was represented by counsel."
 
2. "Defense Counsel entered 'coerced' motions in behalf of defendant but not in the same light as defendant previously motioned for."
 
3. "Trial Judge would not grant a continuance to defendant in order to allow defense counsel time to appraise alibi witnesses."
 
4. "Defense Counsel admits that he hadn't discussed alibi witnesses with defendant prior to trial."

 We have reviewed the record of the proceedings in the state court and conclude that an evidentiary hearing is not required. *fn3"

 Relator asserts as the first ground of error the trial judge's denial of his motion for a mistrial and of his request to participate in the trial. During his trial before the Honorable Warren K. Hess, President Judge of the Court of Common Pleas of Berks County, relator expressed dissatisfaction with the conduct of the trial, and in particular with the actions of his court-appointed counsel. Judge Hess held a conference to warn relator about his attitude, and also to inform him in detail of counsel's functions. Relator was told that he could represent himself and that the Court would also permit counsel to advise defendant during the course of the trial; he was informed, however, that if counsel continued in the capacity of trial attorney, then conduct of the trial would be in counsel's hands exclusively. Relator thereupon elected to have his court-appointed trial counsel continue in that capacity. We conclude that Judge Hess acted within the bounds of his discretion in denying relator's request for recognition of him in a pro se capacity when he was in fact represented by counsel. There is no constitutional right to "hybrid representation conducted partly by the criminal defendant and partly by counsel". *fn4"

 Relator subsequently moved for a mistrial because he wished to discharge his attorney and obtain other court-appointed counsel of his choice. The court denied the motion for a mistrial and relator alleges this is constitutional error. We do not agree. The right of an indigent prisoner to have assistance of counsel does not include a right of the accused to dictate the appointee to the court as long as competent counsel has in fact been designated. A review of this record leads us to conclude that court-appointed counsel was in fact competent in all respects. Thus it was within the trial court's discretion to determine whether the trial should be interrupted and new counsel appointed because of the accused's dissatisfaction with the representation he had. *fn5"

 Relator also complains about his counsel's failure to register objections and present motions in the "same light" as relator had suggested. Although under some circumstances this allegation would suggest that defense counsel was incompetent, thus denying relator his right to effective legal representation, this conclusion is not supported by the record. Relator has not pointed to, nor can we discern, any difference in substance between the objections and motions proffered by relator and those made by his attorney.

 The third and fourth allegations challenge the propriety of the trial judge's denial of a continuance on the ground that relator was denied the right to present alibi defense witnesses, in violation of his rights under the Sixth Amendment made applicable to the states through the Fourteenth Amendment. *fn6" Relator was indicted on February 26, 1970, and went to trial on June 4, 1970. A mistrial was declared. Relator's second trial commenced September 30, 1970. On October 1, 1970, after the Commonwealth had rested, relator's counsel appointed in June of 1970 after the first trial had aborted, requested a continuance of the proceedings for the purpose of further investigating the possibility of advancing an alibi defense, to be established by witnesses whose existence had first been revealed to him by relator the prior evening, September 30, 1970. Counsel informed the court that he had not been apprised of an alibi defense before that time and therefore was unable to consult with the alleged witnesses. Counsel further represented that before trial he had repeatedly asked the accused to tell him the names of witnesses who could be of aid to him and that relator had never before told him about the existence of any alibi witnesses. The prosecutor objected to the motion for a continuance; he argued that the accused had had ample time and opportunity to file notice of alibi witnesses as required by Pennsylvania law, Rule 312, Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix. *fn7" Relator's counsel admitted that no valid reason existed to excuse his failure to file the requisite notice in June of 1970, apart from relator's failure to advise him of an alibi defense. The court accordingly denied the motion for a continuance.

 On Friday, October 2, 1970, the trial court, in summarizing the proceedings of the previous day, stated that the District Attorney's objection to a continuance had been sustained and said in pertinent part that the court had "also ruled, when advised of the time that the request had been made that the witness be called, that the alibi defense came too late in the case, and so that as a matter of law, the court on the record ...


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