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COMMONWEALTH PENNSYLVANIA v. ROY WILBUR KITTRELL (04/03/81)

filed: April 3, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
ROY WILBUR KITTRELL, APPELLANT



No. 248 March Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Pennsylvania, Criminal, entered November 27, 1978, No. 398 Criminal Action, 1978.

COUNSEL

Gerald E. Ruth, York, for appellant.

Sheryl A. Dorney, Assistant District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, J., filed a concurring and dissenting opinion.

Author: Montgomery

[ 285 Pa. Super. Page 466]

The defendant-appellant, Roy Wilbur Kittrell, having been convicted of Recklessly Endangering Another Person,*fn1 and two counts of Terroristic Threats*fn2 now brings this appeal from the judgment of sentence following the dismissal of his post-trial motions. He raises three issues. First he argues he was not afforded reasonable opportunity to obtain

[ 285 Pa. Super. Page 467]

    private counsel of his choosing. Secondly, he argues he was denied effective assistance of counsel. Lastly, he contends his sentence of not less than three years and not more than eight years in a state penitentiary was excessive.

CONTINUANCE

Appellant was charged on April 6, 1979 and held on $30,000.00 bail, later reduced to $25,000.00 which he could not post. He remained in jail awaiting trial from the date he was charged until July 19, 1979 when his case was called for trial. During this period, he was represented by a public defender, who appeared with him on July 19th and made his first request for a continuance so that he might engage private counsel. Appellant testified he had made two unsuccessful attempts to secure private counsel while he was confined in jail where he was restricted to two phone calls a week; and that he had an income of $250.00 per month from social security; also that he had money in the bank and that his nephew would supply money.

His request was denied for the reasons that (1) the court did not believe that he had means to obtain private counsel, (2) that he had sufficient opportunity to engage private counsel before trial, and (3) that his request for a continuance was an attempt to delay the trial without a valid reason. At the time appellant's request was made, the Commonwealth was ready to proceed with the trial, having all of its witnesses, albeit few in number, in court.

The allowance of continuances is largely a matter within the discretion of the lower court and the denial of a continuance does not constitute reversible error unless there is an abuse of discretion. Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). It must not be overlooked that one charged with crime has a constitutional right to choose at his own cost and expense any lawyer he may desire. Const. of Pennsylvania Art. 1, ยง 9, Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (102) cert. denied, 361 U.S. 882, 80 S.Ct. 152, 4 L.Ed.2d 118 (1959), reh. den. 361 U.S. 926, 80 S.Ct. 290, 4 L.Ed.2d 241 (1959).

[ 285 Pa. Super. Page 468]

Generally in determining the question of whether a court abuses its discretion in denying a continuance, an accused's right to choose a particular counsel, which is not absolute, must be weighed against the public need for the efficient and effective administration of justice. Commonwealth v. Atkins, 233 Pa. Super. 202, 336 A.2d 368 (1975). In determining this issue, each case must be decided by balancing the competing interests. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), reh. den. 377 U.S. 925, 84 S.Ct. 1219, 12 L.Ed.2d 217 (1964).

Viewing this case in light of these principles, we cannot say the lower court abused its discretion under the circumstances present herein. The appellant claimed he had money from social security payments, had money in the bank, and had made unsuccessful efforts to secure other counsel, yet he waited until the day his case was called for trial before seeking a continuance, a tactic condemned in Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). Furthermore, he advanced no irreconcilable differences with the public defender who had represented him for over four months, as was the case in Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d ...


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