No. 563 January Term, 1975, Appeal from the Judgment of Sentence of the Court of Common Pleas Criminal Division, of Wayne County, at Nos. 5 and 5A October Term, 1973
Hamilton C. Davis, Krawitz, Sigal & Ridley, Marshall E. Anders, Milford, for appellant.
Nicholas A. Barna, Stephen G. Bresset, Honesdale, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., took no part in the consideration or decision of this case. Eagen, C. J., and Nix, J., concur in the result. Roberts, J., files a dissenting opinion in which Manderino, J., joins. Manderino, J., files a dissenting opinion in which Roberts, J., joins.
Appellant, Irma Helen Garcia, was tried in the Court of Common Pleas of Wayne County and was convicted of
murder of the first degree and conspiracy to commit murder. She was sentenced to imprisonment for life on the former charge and for ten-to-twenty years on the latter, the sentences to run concurrently. She appeals from the judgment of sentence imposed on the murder conviction.
This case arose from the death of appellant's husband, Senen Garcia. The facts surrounding this case are: Ruth and George Gustin, who resided near the Garcias in Waymart, Pennsylvania, were awakened in their home by a loud noise between 4:00 and 5:00 a. m. on August 10, 1973. They saw a light burning a short distance away but investigated no further, thinking nothing was wrong. At approximately 7:30 that morning, Ruth Gustin and Ruth Wenk, a neighbor, left for work. They found that a car had gone off the road and down a hill near the Gustin home. They looked and found what appeared to be the remains of a human skeleton behind the driver's seat. They called the police, who investigated, along with the Wayne County Coroner, and had the car examined and various tests performed on the remains and bone fragments found therein. It was determined that the car belonged to Senen Garcia and that the body was Garcia's. The investigation further revealed that the car had been doused with gasoline and set on fire, burning the body, but Garcia was dead before the fire.
Further investigation led to the arrest of appellant, Irma Helen Garcia; Cathy Brooks, her sixteen-year-old daughter by a previous marriage; David Lamberton, Cathy's boyfriend; and Glen Rolison, appellant's paramour. Rolison was convicted of murder and conspiracy to commit murder in connection with Senen Garcia's death. Brooks and Lamberton pleaded guilty to participating in the murder and testified against appellant at her trial. Their testimony was that the four had planned the murder for some time, motivated by appellant's desire to end her marriage, and that their plan was carried out the evening of August 9, 1973 and the morning of the 10th in the following manner: appellant and Brooks, at the Garcia home, put sleeping pills in some beer that the decedent was to drink. The decedent subsequently
went to his bedroom and went to sleep. Lamberton and Rolison then went to the house. Rolison struck the decedent in the head several times with a spike. Satisfied that he was dead, Lamberton and Rolison took his body and put it behind the wheel of his car on top of the hill above the spot where it was discovered. They doused the car with gasoline, set it on fire, and pushed it off, hoping that the incident would appear to be accidental.
Appellant first argues that she is entitled to a discharge on the criminal charges because of a delay in the setting of her bail. We do not agree.
Appellant was arrested and incarcerated on September 25, 1973. On December 4, 1973, after the appointment of counsel, bail was requested and fixed, and appellant was released. She contends that this seventy-day delay hindered the preparation of her defense; however, she makes no specific allegations of prejudice that resulted from the delay. Having articulated no specific prejudice, we find appellant's contention meritless.
Appellant next argues that the attorneys appointed to represent her were appointed too late to prepare an adequate defense. We do not agree. The trial court, accepting appellant's claim of entitlement to appointed counsel, appointed Marshall E. Anders on December 4, 1973. In response to Anders' requests for additional help, the court appointed Hamilton C. Davis on March 5, 1974, and Mark B. Fox on April 26, 1974. The trial commenced on August 5, 1974, allowing eight months for preparation. Problems from late appointment of counsel are normally a result of appointment a short time before trial. Any resulting prejudice from a late appointment is curable by granting additional time. U. S. ex rel Spears v. Rundle, 405 F.2d 1037 (3d Cir. 1969). Eight months was adequate time for preparation.
Assuming, arguendo, that there was a late appointment in this case, it was not prejudicial per se. Defendant has the burden to show prejudice. That determination
depends on whether adequate representation was actually provided. Moore v. United States, 432 F.2d 730 (3d Cir. 1970). In Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970), counsel claimed to have lacked time to prepare, but we found representation to have been adequate in view of the fact that a vigorous defense was presented with thorough cross-examination of witnesses and numerous exceptions and objections on behalf of defendant. The record in the instant case shows a similarly vigorous defense. Defense counsel were diligent in presenting objections and cross-examining witnesses during the Commonwealth's case, and they also presented a comprehensive case of their own, calling fourteen witnesses, including appellant, and examining them extensively. They made numerous motions on behalf of their client, seeking to put in whatever evidence would help her on the record in the instant case. We are of the opinion that appellant's claim of prejudice because of an allegedly late appointment of counsel is meritless.
Appellant next argues that she was not adequately represented at the preliminary hearing on October 4, 1973. The trial judge, James Rutherford, appointed his son, Albert G. Rutherford, to represent appellant at the hearing. Appellant claims that her right to competent counsel was denied because attorney Rutherford was only appointed for the preliminary hearing. She claims that his appointment could only have been for the hearing because Judge Rutherford could not have presided at a trial at which his son was counsel. She asserts that a defendant cannot be represented by different counsel at the preliminary hearing and at trial. However, she does not cite, and we cannot find, any law to support that assertion. She makes no specific allegation of prejudice. To grant relief in this case, we would have to find that a change in counsel between the preliminary hearing and trial prevents competent representation from being provided. We do not so find. Counsel's representation is presumed to be competent and the defendant has the burden to show otherwise. Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Appellant having
failed to allege and to establish incompetent representation, we find no error.*fn1
Appellant alleges various errors in the conduct of the trial as grounds for the granting of a new trial. The first alleged error occurred when the court denied without a hearing a defense motion to discover the names and addresses of the Commonwealth witnesses and also denied permission to inspect the automobile in which the victim's body was found. We find no error.
The then-applicable criminal discovery rule was Pa.R.Crim.P. 310, which stated:*fn2
"Rule 310. Pretrial Discovery and Inspection
"All applications of a defendant for pretrial discovery and inspection shall be made not less than five days prior to the scheduled date of trial. The court may order the attorney for the Commonwealth to permit the defendant or his attorney, and such persons as are necessary to assist him, to inspect and copy or photograph any written confessions and written statements made by the defendant. No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing, of exceptional circumstances and compelling reasons. The order shall specify the time, place and manner of making discovery or inspection and may prescribe such terms and conditions as are ...