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COMMONWEALTH v. MELNYCZENKO (02/02/76)

decided: February 2, 1976.

COMMONWEALTH
v.
MELNYCZENKO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Berks County, No. 795 of 1972, in case of Commonwealth of Pennsylvania v. Peter Melnyczenko.

COUNSEL

Louis R. Rizzuto, Assistant Public Defender, for appellant.

Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Spaeth, J., concurs in the result.

Author: Jacobs

[ 238 Pa. Super. Page 205]

Appellant was found guilty after a jury trial of burglary and larceny.*fn1 Following the denial of his post-verdict motions and the imposition of sentence, the present appeal was taken. We find no merit in any of the issues raised on appeal and accordingly affirm the judgment of the court below.

At trial, the Commonwealth's evidence established that on April 18, 1972, appellant was observed by a neighbor in the vicinity of the residence of a Mr. and Mrs. Winfred Oberreit. The neighbor notified Mr. Oberreit who in turn contacted a Mr. Guenther, the manager of a country club in the area, and requested his assistance.

[ 238 Pa. Super. Page 206]

Mr. Guenther and his employee, Mr. Breneiser, proceeded to the Oberreit residence. Upon a close examination of the house, Mr. Guenther noticed that one of the side doors had been forced open. Then, Mr. Breneiser observed appellant fleeing from the front of the house. Appellant ran to the golf course area of the local country club but was later apprehended there by a trooper of the Pennsylvania State Police. Although testimony disclosed that some change and two rings were missing from the house, a search of appellant on the day of his arrest produced none of the stolen property. Mr. Oberreit testified that after the arrest appellant offered to make restitution. The offer, however, was not accepted by Mr. Oberreit. No testimony was presented by the defense.

At the close of the charge to the jury, appellant's counsel requested the court to charge "on the lesserincluded charges of burglary," which would be "illegal entry." Notes of Trial Testimony at 63. The request was refused. The jury returned a verdict of guilty on the charges of burglary and larceny, a demurrer having been sustained on the charge of receiving stolen property.

Appellant first argues that he was denied his right to counsel because he was not represented by counsel at the preliminary hearing. A review of the record discloses that appellant was informed by the district justice on two separate occasions, April 18, 1972, and April 28, 1972, of his right to have his own lawyer represent him and how to apply to the court for a lawyer if he could not afford to retain his own lawyer. On May 10, 1972, appellant was released on bail. However, when the preliminary hearing was held on August 7, 1972, nearly three months later, appellant appeared without an attorney. Although appellant at that time requested the assistance of an attorney, we agree with the court below that under the circumstances appellant had ample time in which to obtain counsel and that his failure to do so "can only be taken as a constructive waiver of counsel."

[ 238 Pa. Super. Page 207]

Opinion of lower court at 2. Furthermore, no specific prejudice has been demonstrated by appellant from the lack of counsel at the preliminary hearing. See Commonwealth ...


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