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COMMONWEALTH PENNSYLVANIA v. DANIEL ANDREWS (02/18/77)

decided: February 18, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL ANDREWS, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Crim, No. 939, January Term, 1975. No. 1509 October Term, 1976.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.

Bert M. Goodman, Assistant District Attorney, Lansdale, and William T. Nicholas, District Attorney, Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Watkins

[ 245 Pa. Super. Page 548]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County by the defendant-appellant, Daniel Andrews, after conviction of attempted aggravated assault on a police officer, resisting

[ 245 Pa. Super. Page 549]

    arrest and disorderly conduct; and from the dismissal of oral post-trial motions. He was sentenced to 2 1/2 to 5 years with credit for time served.

The appellant does not raise the question of the sufficiency of the evidence or complain of the sentence imposed, but contends that (1) the court below erred in not granting a continuance, (2) it was error to proceed in the trial of the case as the defendant was absent during some portions of the trial, and (3) the defendant should have been permitted to make oral pre-trial motions. We find that none of these contentions is meritorious.

The grant of a continuance in a trial is within the discretion of the court. Pa.R.Crim.P. 301(a) provides that the "court may, in the interests of justice, grant a continuance, of its own motion, or on the application of either party . . ." The denial of a continuance by the trial judge constitutes reversible error only if there has been an abuse of discretion. Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). "It would take an extreme case to make the action of the trial court in such a case [refusal of the grant of a continuance] a denial of due process of law." Franklin v. South Carolina, 218 U.S. 161, 168, 30 S.Ct. 640, 643, 54 L.Ed. 980 (1910).

In the instant case, the appellant refused to be represented by the public defender assigned to him. A number of continuances were granted so that he could obtain private counsel. When the case was finally called for trial, the appellant was still without private counsel and refused to be represented by the public defender who was ready to proceed in the case. A new public defender was assigned to the defendant, and he requested a continuance so that the defendant might be given the opportunity to locate and subpoena two witnesses. However, the defendant was unable to provide his counsel with the addresses of the witnesses and the only names provided

[ 245 Pa. Super. Page 550]

    were "Juney" and "Henry Willis." The court below refused to grant a further continuance, and the witnesses were not produced. The court was more than justified in taking the action that it did. The alleged offense occurred on January 23, 1975, and the case was not called for trial because of the continuances requested by the defendant until February 3, 1976. The defendant had more than a year to obtain the names and addresses of the witnesses that he wanted to ...


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