No. 193 April Term, 1979, Appeal from Judgment of Sentence entered February 12, 1979, in the Court of Common Pleas, Criminal Division, of Allegheny County at Nos. CC 7801181A, CC 7801182A and CC 7801183A of 1979.
Allen N. Brunwasser, Pittsburgh, for appellant.
Kathryn L. Simpson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cavanaugh, Hoffman and Van der Voort, JJ.
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On June 28, 1978, appellant Charlett was convicted by a jury on two counts of promoting prostitution, corruption of minors, criminal solicitation and criminal conspiracy. Motions for a new trial and in arrest of judgment were denied. The record of such motions cannot be found. On February 12, 1979, appellant was sentenced to a period of five to ten years' incarceration. The pertinent pretrial history of the case is as follows:
Defendant's trial date was set for June 20, 1978. On June 16, 1978, defendant requested a postponement. He claimed that he needed additional time to raise funds to secure private counsel. Administrative Judge Dauer granted the
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request for postponement and rescheduled the trial for July 17, 1978. The subsequent history of the trial scheduling may be taken from the opinion of Judge Dauer in acting on the post-trial motions:*fn1
On Monday, June 19, 1978, this court was informed by the Pennsylvania State Police Officers, who were prosecuting the case, that an essential witness was being detained at the Schuman Juvenile Detention Center for the purpose of testifying against the defendant. There was concern that this witness would be released, return to her out-of-state home and would not be available on the rescheduled trial date.
This court then rescinded the original postponement and advised the defendant by telephone that the case would proceed as originally scheduled on June 20.
The case did not begin on June 20 as scheduled, presumably because of a back up in jury trials. On June 22, 1978, this court appointed Attorney Daniel Gigler to represent the defendant inasmuch as he had not been able to afford the fee demanded by the counsel of his choice. On June 23, 1978, a request for a postponement on the case, based upon illness of the defendant, was denied. However, the case was held over until June 26, 1978. The jury trial did begin on June 26 and the jury's verdict finding the defendant guilty on two counts, was rendered on June 28, 1978.
Appellant first attacks the court's action in revoking the prior grant of a continuance and the failure to permit him sufficient time to make arrangements to hire counsel of his choice. Since we find that the grant of a new trial is warranted by the failure of the trial court to obtain a proper waiver of the right to counsel we need not decide whether the court erred in failing to grant a continuance.
Just prior to the commencement of the trial, Judge Lewis, the trial judge, asked defendant if he wanted court-appointed
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counsel to represent him. The following ...