Appeal from the Judgment of Sentence of March 24, 1976, of the Court of Common Pleas of Berks County, Criminal, at No. 1208 of 1974.
William F. Ochs, Jr., Public Defender, Reading, for appellant.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., dissents on the basis of Commonwealth v. Allen,
[ 248 Pa. Super. Page 371]
On March 12, 1975, following a jury trial, appellant was found guilty of robbery.*fn1 Post-trial motions were timely filed, argued before a court en banc and denied. Two assignments of error are made in this appeal: (1) that the trial court abused its discretion in refusing to grant appellant's request for a pre-trial continuance; and (2) that the trial court erred in refusing to grant a mistrial when the complaining witness, during cross-examination by defense counsel, referred to having picked appellant's picture from files at police headquarters. Finding no merit in appellant's contentions, we affirm.
On the day of trial, immediately prior to the assignment of this case to a courtroom, appellant's counsel moved for a continuance before the motions court judge. The motion was denied and the case proceeded to trial. The basis for the motion was the alleged existence of alibi witnesses who would testify that appellant had been in Florida at the time of the offense charged. The court conducted a colloquy in order to determine if a continuance was necessary or proper.
[THE COURT] "Do you have a motion to make at this time?
[ 248 Pa. Super. Page 372]
MR. OCHS: Yes, I am moving for a continuance in this case for the following reasons: The case was listed for trial, I believe, in January and was brought to trial and a hung jury and mistrial resulted. Subsequent to that trial I attempted to contact some people in Sarasota, Florida, who Mr. Foreman said he had been with at the time when the criminal act was said to have occurred. I received a reply from one of those persons, a Reverend Aubrey Morris, 285A 66th Street, Ocean Marathon, Florida, to the [e]ffect he could identify a picture I had enclosed as the person who was with him at that time.
I telephoned Mr. Morris this morning and I was advised by his wife that although he would like to come to Pennsylvania to testify, they were financially unable to afford such a trip at this time and that she did not believe that the other two persons that her husband had contacted would be able to make such a trip for financial reasons either. So, I would ask that this be continued, that perhaps something in the future could be worked out to enable these persons to come to Pennsylvania.
THE COURT: In other words, Mr. Ochs, you have no assurance from any of your possible witnesses in regard to alibi, that they are in a position to come or would be willing to come to testify, is that correct?
MR. OCHS: That's correct.
THE COURT: This matter, as I understand it, had been tried in January of 1975 and resulted in a mistrial, and is now being called for ...