Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Oct. T., 1973, No. 562, in case of Commonwealth of Pennsylvania v. Alma Joyce Atkins.
Barry H. Denker, and Shuman, Denker & Land, for appellant.
Stewart J. Greenleaf and J. David Bean, Assistant District Attorneys, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs and Van der Voort, JJ., dissent.
[ 233 Pa. Super. Page 204]
Appellant contends that she was not afforded due process of law because the trial judge's refusal to grant her request for a continuance compelled her to act as her own attorney.
The appellant was arrested on November 1, 1973, and charged with two counts of retail theft and one count of criminal conspiracy. A preliminary hearing was held on November 8, 1973, at which the presiding Justice of the Peace determined that a prima facie case had been established. The docket lists Daniel L. Quinlan, Esquire, as defense counsel at the preliminary hearing. On January 14, 1974, the Grand Jury returned True Bills on all three counts. At a subsequent hearing the appellant was asked if she was represented by counsel. The appellant replied that Mr. Quinlan was her attorney, but that he was not present. The court instructed the sheriff to ascertain whether or not Mr. Quinlan would act as the appellant's attorney. The following colloquy appears of record: "THE COURT: Yes, but one lady gave Mr. Quinlan's name and I wanted to get that resolved. "Mr. MITTMAN: Mr. Quinlan, from what I gather, has indicated that he does not represent her. "THE COURT: Did the sheriff talk to him? " MR. CAPUTO: I talked to his secretary and she said she has no knowledge of this name at all . . .*fn1 "THE COURT: Then Mr. Quinlan does not represent you. Do you understand that? "MRS. ATKINS: Yes, I do."
On May 14, 1974, an application to suppress evidence was made on behalf of the appellant. The attorney for the applicant was William I. English, Jr., Esquire. Apparently, Mr. English was associated with Mr. Quinlan's office.
The motion to suppress was denied on Friday, May 31, 1974, and the trial listed for the following Monday, June 3, 1974. Mr. English represented the appellant at the suppression hearing. When the court opened on June
[ 233 Pa. Super. Page 2053]
, Mr. English informed the trial judge that his client desired a continuance in order to obtain the services of another attorney. The court responded: "Let us put it on the record. It is going to be refused.*fn2 They can go to trial without you. You can sit right alongside if they [the appellant and her co-defendant] do not want you, and they can try their own case." The following colloquy between the court and the appellant ensued: "THE COURT: All right. This case was listed for trial, and you had an opportunity to employ a lawyer. You did, and we are not going to continue the case . . . If you want to discharge Mr. English, you may do so, that is your privilege. I am going to ask him to stay in the courtroom, however, and if you have any question to ask while the case is proceeding, he will be available to you. "Now, do you wish to be tried by a jury, or do you wish to be tried by a Judge without a jury? "DEFENDANT ATKINS: I don't want to be tried at all. "THE COURT: You are going to be tried. "DEFENDANT ATKINS: I'm asking to have a paid lawyer. I obtained Mr. Dan Quinlan, right? I had wanted to obtain Mr. Dan Quinlan, but Dan Quinlan's leg is broke, he is ill, so he had told me to get Mr. English which is an assistant, right? "So, now, this was just for the preliminary hearing, I mean, for the suppression of the evidence case. "THE COURT: Miss Atkins, this case was called to trial, and prior to the trial there was a motion scheduled. A motion had been filed some months back, and that motion was heard before the trial, so if you did not want Mr. English, you could have stated to Mr. English, and you could have told the Court that you wished another lawyer.*fn3 DEFENDANT ATKINS: But see, I didn't understand this part. "THE COURT: You understand it -- "DEFENDANT ATKINS: According to
[ 233 Pa. Super. Page 206]
you -- what do you mean I understand? I have my civil rights. I have the right to my own lawyer, right? "THE COURT: We are going to proceed with the trial right now. Now, do you want a jury or don't you want a jury? DEFENDANT ATKINS: I don't want either." The District Attorney then asked Mr. English whether he had been retained by the appellant. Mr. English answered affirmatively, adding that Mr. Quinlan said he "didn't want to take the case." The Court instructed Mr. English to remain in the courtroom to advise ...