No. 203 October Term, 1979, Appeal from Judgment of Sentence entered by the Court of Common Pleas, Criminal Division of Lancaster County at Nos. 1874, 1875 and 1876 of 1976.
Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.
Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files a dissenting opinion.
[ 282 Pa. Super. Page 119]
Appellant, Michael Leo Andrews, was tried by a jury and convicted of burglary, conspiracy and possessing instruments of crime. The trial judge denied appellant's motions for a new trial and in arrest of judgment. He was sentenced to a term of imprisonment. Appellant filed an application for reconsideration of sentence, nunc pro tunc, which was denied. This appeal followed.
Appellant raises several arguments on appeal based on the trial court's refusal to grant him a continuance when defense counsel failed to appear at the time of trial. Appellant proceeded to trial without representation by counsel. His case was tried with that of his co-defendant, who was represented by counsel. Before addressing the specific arguments raised by Andrews, a recitation of the facts is needed.
On June 10, 1976 a complaint was filed charging Andrews with the offenses. Trial was originally scheduled November 23, 1976 but the appellant failed to appear. A bench warrant was issued, but appellant was not rearrested until October, 1977. On October 7, 1977 the defendant was arraigned and trial was rescheduled for November 14. During the arraignment appellant was questioned about retaining counsel and informed of his right to appointed counsel:
THE COURT: Do you understand you have the right for Counsel to be appointed free of charge if you can't afford it? Do you understand that?
[ 282 Pa. Super. Page 120]
THE COURT: If you wish to retain your own Counsel you mad (sic) do so. Is that what you wish to do?
THE DEFENDANT: That's what I wish to do.
THE COURT: When is this case scheduled?
MR. KENEEFF: Monday, November 14, 1977.
THE COURT: You will appear at that time, Mr. Andrews, and you are assuring the Court you will have your own Counsel. Do you understand that?
THE COURT: We don't want any delay at that time in which you say you haven't made arrangements. We expect it to go to trial on that date.
THE COURT: You say you are making arrangements or have made arrangements?
THE DEFENDANT: I expect the attorney to be today.
THE COURT: Who is the attorney?
THE DEFENDANT: Mitchell Lipschultz (sic, Lipschutz) of Philadelphia was supposed to contact somebody here.
THE COURT: You make sure you have him here and have him enter an appearance for you.
Five weeks later a post-arraignment hearing was held where Andrews was again questioned about counsel and told of the necessity that counsel appear. He stated again that he was represented by Lipschutz although he had not entered his appearance on behalf of the appellant.
Despite these warnings the appellant appeared without counsel on the day of trial. He claimed that Mitchell S. Lipschutz, a private attorney, had been retained but could not be present:
DEFENDANT ANDREWS: Your Honor, I spoke to my lawyer Thursday, and he said he definitely represents me. He is in court in Philadelphia this morning, and he asked
[ 282 Pa. Super. Page 121]
me to ask the Court to postpone the case until he can get out of the business he is handling.
The record discloses that the only communication with Mr. Lipschutz took place when Mr. John C. Brighton, assistant court administrator for the criminal division, telephoned Lipschutz. Because during the post-arraignment hearing Andrews claimed he had retained Lipschutz, Brighton telephoned to verify this. Mr. Brighton was called to testify concerning this conversation:
THE COURT: Did you reach Mr. Lipschitz (sic, Lipschutz)?
THE WITNESS: Yes, sir, I did.
THE COURT: Did you talk to him?
THE WITNESS: Yes, sir, I did.
THE COURT: What was your conversation?
THE WITNESS: Well, sir, he told me that there was no way that he could be here Monday because of the fact that he would be on trial at city hall in Philadelphia.
THE COURT: Did he indicate to you whether he represented Mr. Andrews?
THE WITNESS: Yes, sir, he did. He said --
THE COURT: What did he say?
THE WITNESS: He said that he had simply received a letter from the gentleman saying he wanted to be represented, but that is as far as it went, because no monies were exchanged, and nothing else was done. He was waiting for some other word, but as far as he was concerned, he had not been retained.
THE COURT: He had not been retained by Mr. Andrews?
THE WITNESS: Yes, sir, he had not.
I further informed him that -- of my position with the court, and that I intended to give the gentleman a public defender in case he would not be here, and he told me that he thought that was a good idea, because he couldn't be here because he was on trial in Philadelphia.
[ 282 Pa. Super. Page 122]
THE COURT: But Mr. Lipschitz stated that he had not been retained by Mr. Andrews?
THE WITNESS: Yes, sir, he did.
(N.T., pp. 16-18) The appellant did not refute Brighton's testimony but stated "What [Mr. Brighton] says is right." However, he claimed, two hours after Brighton's call appellant himself telephoned Lipschutz, who said that he definitely represented the appellant.*fn1 (N.T., p. 20)
The lower court, treating what the appellant stated in the colloquy as a request for a continuance, denied the motion. The lower court ordered that a public defender be appointed "to sit with Mr. Andrews, and to be available to Mr. Andrews for such consultation or participation as Mr. Andrews determines to permit him in connection with the conduct of the case." (N.T. at 22) The trial proceeded. Neither Andrews nor the ...