Defender Assn. of Philadelphia, Benjamin Lerner, Defender, John W. Packel, Chief, Appeals Div., Leonard N. Sosnov, Asst. Defender, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Glenn S. Gitomer, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion in which Nix, J., joins. Manderino, J., concurs in the result.
Appellant William Ross was convicted, following a jury trial, of burglary, larceny, receiving stolen goods, and possession of burglary tools. Post-trial motions were denied, and a sentence of three and one half to ten years in prison was imposed. The Superior Court affirmed the judgment of sentence in an opinionless per curiam order. On this appeal*fn1 appellant urges that the trial court abused its discretion*fn2 in failing to grant him a continuance and, as a result, his conviction should be
reversed. We agree, reverse the order of the Superior Court, vacate the judgment of sentence and remand for a new trial.
Appellant was arrested on April 18, 1972, and placed in jail. He was arraigned on June 6, 1972, and trial was scheduled for July 6, 1972. During the entire period from arrest until three days before the scheduled date of trial, appellant remained in prison. While in jail, he filed an uncounselled petition for the appointment of counsel. No action on this petition was taken prior to trial.
On July 6, 1972, an attorney who had been retained by appellant that day presented himself to the trial court. He offered to make an appearance conditioned on the grant of a continuance to prepare a defense and to complete his financial arrangements with appellant. Because the continuance was denied, appellant's chosen attorney refused to enter an appearance. At trial, appellant asserted his desire to have chosen counsel represent him. He informed the court that he had requested appointment of counsel in mid-June. The trial court, purporting to act on appellant's petition, appointed the voluntary defender to represent him. When the selection of jurors was to begin the following took place:
"THE COURT: Ready to proceed, Mr. Ross [the appellant]?
THE DEFENDANT: No, sir. I am not ready.
MR. EISENBERG [The voluntary defender]: Judge, I am not ready either.
THE COURT: What is the problem?
MR. EISENBERG: For one thing I don't know enough about the case.
THE COURT: Sit down. You will have time to talk about it.
COURT CRIER: We are bringing a panel [of jurors] in now, Judge.
THE COURT: Any questions you want on voir dire, I want them in writing, otherwise you will have to be satisfied with the questions I ask.
MR. EISENBERG: Judge, I have never even voir dired.
THE COURT: Well, watch. There is always a ...