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decided: June 29, 1977.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Bucks County, Criminal Division, on bill of indictment 2176 of 1974.


Richard S. Wasserbly, Assistant Public Defender, Doylestown, for appellant.

Peter F. Schenck, Assistant District Attorney and Stephen B. Harris, First Assistant District Attorney, Doylestown, submitted a brief for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Price, J., files a concurring opinion in which Watkins, President Judge, joins. Van der Voort, J., dissents.

Author: Hoffman

[ 248 Pa. Super. Page 64]

Appellant was convicted by a jury of attempted murder,*fn1 robbery,*fn2 and related offenses. Appellant raises numerous allegations of error; we believe that two of those allegations have merit. First, we believe that the trial court abused its discretion in not granting a continuance so that appellant's Public Defender would have adequate time to prepare the defense. Second, we also believe that the Commonwealth abridged appellant's constitutional right to remain silent. Consequently, we vacate the judgment of sentence and remand for a new trial.

On August 9, 1974, appellant was arrested and charged with thirty-five counts of robbery, attempted homicide, and other related offenses. At the preliminary hearing on August

[ 248 Pa. Super. Page 6526]

, 1974, and until February 24, 1975, appellant was represented by privately retained counsel. The trial was originally scheduled for October 28, 1974, but appellant secured two continuances, pushing the trial date back to February 24, 1975. Appellant's counsel maintained that the additional time was necessary in order to prepare a defense that required much expert testimony. Appellant himself remained in jail during the period between arrest and trial.

On February 24, 1975, appellant's counsel did not appear for trial because he was busy trying another case in Delaware County. A second attorney appeared and informed the court that appellant wished to discharge the first attorney. He said that a friend of appellant had contacted him five or six weeks earlier about representing appellant. The friend told the second attorney that he had made numerous unsuccessful efforts to contact the first attorney in order to discharge him.*fn3 Due to the entry of the first counsel's appearance, the second attorney would not discuss the possibility of representation with appellant or his friend; he feared that such an action would violate Canon Two of the Code of Professional Responsibility.*fn4 He did, however, request a continuance on appellant's behalf. When asked by the hearing judge whether he or an associate would be prepared to try the case on February 24 or 25, the second attorney responded that he would need at least one week to prepare the defense. The lower court refused to grant a continuance because the Commonwealth's witnesses had been gathered on four or five previous occasions. The judge then removed the first attorney from the case and assigned appellant's defense to the Public Defender's Office with orders to proceed to trial at 10:00 a. m., February 25.

After the hearing on February 24, a representative of the Public Defender's Office interviewed appellant in the Bucks

[ 248 Pa. Super. Page 66]

County Prison and discovered that appellant desired to present an insanity defense based on the testimony of about ten witnesses. At 3:30 p. m., one of the attorneys on the Public Defender's staff was assigned to represent appellant. He tried, unsuccessfully, to contact both the first and second lawyers involved with appellant. He called the prison diagnostic unit to determine whether appellant had been examined there, but again failed to obtain a response. Counsel assigned to the case had no opportunity to confer personally with appellant or any of the potential witnesses before trial. At 10:00 a. m., on February 25, counsel applied for a continuance because more time was needed to study the possibility of an insanity defense based on expert testimony. The request was denied and trial started promptly. The prosecution presented its case on the first day, and the court then granted a one day recess. On February 27, 1975, the prosecution reopened its case to present the testimony of an alleged co-conspirator. Appellant's counsel abandoned the insanity defense and did not present any witnesses, choosing to rest the defense on the presumption of innocence.

Appellant asserts that his constitutional right to be represented by the counsel of his choice was impaired by the February 24 refusal of the hearing court to grant a one week continuance so that the second attorney could prepare a defense. It is well-settled that the right to obtain the assistance of counsel of one's own choosing is a necessary corollary to the right of counsel guaranteed by both the Pennsylvania*fn5 and Federal*fn6 Constitutions. See Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954); United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3rd Cir. 1969), cert. denied 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127; Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959), cert. denied 361 U.S. 882, 80 S.Ct. 152, 4 L.Ed.2d 118; Commonwealth v. Atkins, 233 Pa. Super. 202, 336 A.2d 368 (1975). It is equally well-settled, however, that the right to

[ 248 Pa. Super. Page 67]

    choose a particular counsel is not unqualified. "The right to choose a particular counsel, however, is not absolute. Thus, the desirability of permitting a defendant additional time to obtain private counsel of his choice must be weighed against the public need for the efficient and effective administration of justice. Commonwealth v. Simpson, 222 Pa. Super. 296, 294 A.2d 805 (1972). The matter of continuance is traditionally one within the discretion of the trial judge, and no prophylactic rule exists for determining when a denial of a continuance amounts to a violation of due process. Each case must be decided by balancing the competing interests, giving due regard to the facts presented." Commonwealth v. Atkins, 233 Pa. Super. 202 at 207, 336 A.2d at 371 (1975). See ...

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