decided: July 14, 1978.
COMMONWEALTH OF PENNSYLVANIA
ROBERT BAINES, APPELLANT (TWO CASES)
Nos. 217 and 346 January Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section Imposed on Indictments Nos. 1119-23, July Sessions, 1971
Cohen & Fitzpatrick, William A. Fitzpatrick, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Eric Henson, Asst. Dist. Attys., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a dissenting opinion in which Nix, J., joins.
[ 480 Pa. Page 28]
OPINION OF THE COURT
Appellant Robert Baines was convicted following a jury trial of murder in the first degree and several lesser offenses in connection with the shooting death of Edward Perry in Philadelphia on January 4, 1971.*fn1 Post-verdict motions were filed and denied, and this direct appeal ensued.*fn2 Baines' principal contentions*fn3 are that he was denied
[ 480 Pa. Page 29]
his right to a speedy trial and that he was improperly denied the assistance of counsel of his choice. Because we conclude that the first issue has been waived and that the second is without merit, we affirm the judgment of sentence.
The parties agree that the speedy trial claim in this case is governed by the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and not by Pa.R.Crim.P. 1100, since this prosecution was begun before June 30, 1973, the effective date of that Rule.*fn4 We do not reach the merits of this claim, however, because it was not raised in a timely fashion in the court below.
Like any other claim, a speedy trial claim may be waived if not properly and timely asserted in the lower court. E. g., Commonwealth v. Roundtree, 458 Pa. 351, 354, 326 A.2d 285 (1974). In Pennsylvania, a motion to quash the indictment or a similar pre-trial application for relief*fn5 is the proper procedure for raising the issue. Under Pa.R.Crim.P.
[ 480 Pa. Page 30305]
, as applicable at the time of trial, all pre-trial applications must be made at least ten days before trial "unless opportunity therefor did not exist or the defendant or his attorney was not aware of the grounds for the application."*fn6
In this case, a jury panel was called and appellant was formally arraigned on November 12, 1974. Individual voir dire examination commenced the next day and continued until November 19. The jury as finally selected was sworn on November 20. The motion to quash the indictment on speedy trial grounds was filed on November 18, five days after jury selection had begun. On this record it is clear that no matter when trial is deemed to have commenced in this case, compare Commonwealth v. Lamonna, 473 Pa. 248, 254-56, 373 A.2d 1355 (1977); Commonwealth v. Perkins, 473 Pa. 116, 137-39, 373 A.2d 1076 (1977) (plurality opinion), the motion to quash the indictment was untimely under Rule 305. It is not contended that opportunity for the motion did not previously exist, or that the grounds for the motion were unknown; nor could the record support such a contention. This issue is therefore waived. Commonwealth v. Brown, 462 Pa. 578, 585-87, 432 A.2d 84 (1975).
Appellant also contends that he was improperly deprived of his right to the assistance of counsel of his choice when his retained counsel was removed from the case by the trial court. In Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973), we recognized that the right to counsel of one's choice is not absolute,*fn7 and that the Commonwealth's interest in fulfilling its obligation to provide a speedy trial for
[ 480 Pa. Page 31]
the benefit of both the defendant and the public was "fundamental and compelling." 451 Pa. at 299, 306 A.2d 283. We further held that "a reasonable restraint over the number of cases any one attorney may have at a given time," id., was the only effective means available to effectuate this interest, and that it was not arbitrary for a court to prohibit further entries of appearance by a lawyer until his number of untried cases over one year old was reduced to less than ten. Id. 451 Pa. at 314-15, 306 A.2d 283. As restated in Commonwealth v. Robinson, 468 Pa. 575, 592-93, 364 A.2d 665, 674 (1976), a defendant "clearly cannot be permitted to utilize his right to choose his own counsel so as unreasonably to clog the machinery of justice and hamper and delay the state in its efforts to do justice with regard both to him and to others whose rights to a speedy trial may thereby be affected." (Citations omitted.)
There is no doubt that the removal of counsel who has been retained is a more intrusive action than the prohibition on further entries of appearance in Moore v. Jamieson, supra. Unlike Moore, however, there is here no attack on the court's power to remove counsel;*fn8 rather, it is asserted that the court acted without an adequate basis in the record. We disagree.
On September 14, 1973, a hearing was held before then President Judge Jamieson, at which appellant's original counsel appeared. It was shown at that hearing that counsel had at that time entered his appearance in a total of 110 criminal cases in the Court of Common Pleas of Philadelphia County which had not been tried within six months of the initiation of prosecution.*fn9 Twenty-seven of these were homicide cases, eight of which were as old as, or older than,
[ 480 Pa. Page 32]
the instant case. On March 13, 1974, another hearing was held before Judge Anderson concerning eleven of counsel's homicide cases in which the defendants had been indicted in 1971 and no trial had been held. At this hearing, appellant was represented by other counsel, who also appeared on behalf of appellant's retained counsel. It was shown that despite a special program set up in the preceding year and which continued for four months, only two of counsel's homicide cases had been disposed of.*fn10 At the time of the March 13 hearing, counsel was engaged in a trial in another county and gave the court no indication of when, if ever, he would be available to try appellant's case, which was listed for trial on March 18, 1974. Because of the imminence of trial, Judge Anderson reserved decision on the removal of counsel.
On March 18, appellant appeared for trial before Judge Bruno. Baines' lawyer had been notified in February of the trial date, but did not appear, did not ask for a continuance and again gave no indication of when he would be available. Appellant stated that he had not heard from his attorney for some four months. Judge Anderson, incorporating by reference the prior proceedings noted above, thereupon removed counsel from the case and appointed a new lawyer for Baines. As of this time, three years and one month had elapsed since appellant's arrest.
The record compiled by the court below demonstrated both the inability of appellant's counsel to bring the case to trial and his failure to apprise the court of his availability to do so. Faced with such a situation, the court was not required to wait longer or inquire further. Its action was
[ 480 Pa. Page 33]
fully justified by the record as it stood and will not be disturbed.*fn11
Judgment of sentence affirmed.
I dissent. Although the criminal justice system was in no hurry to try appellant, it took away his right to counsel of his own choice and then took eight additional months to try appellant. There is no adequate basis in the record for depriving appellant of private counsel of his choice.