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filed: June 25, 1982.


No. 68 Harrisburg, 1980, Appeal from Judgment of Sentence dated February 19, 1980, Court of Common Pleas, Juniata County, at No. 4 of 1979.


H. Brown Fry, Mifflintown, for appellant.

Randall E. Zimmerman, District Attorney, Mifflintown, for Commonwealth, appellee.

Price, Beck and Johnson, JJ.

Author: Johnson

[ 301 Pa. Super. Page 188]

Appellant was charged with burglary,*fn1 theft,*fn2 receiving stolen property*fn3 and conspiracy.*fn4 The charges arose out of

[ 301 Pa. Super. Page 189]

    an incident on Sunday October 29, 1978, when the appellant and a co-conspirator allegedly removed a safe containing cash, stamps, keys and business records from the office of the president of a shirt manufacturing plant. Following a jury trial, appellant was found guilty and sentenced to pay the costs of prosecution, to make restitution to the victim and to undergo imprisonment in a state institution for not less than two years and three months and not more than six years, with credit for time served.

We reverse and grant a new trial.

Because of the nature of the errors asserted in this appeal it is necessary to recount in some detail the developments at the trial.

On the day of trial, Tuesday, May 8, 1979, trial defense counsel filed notice of an alibi defense,*fn5 having only been made aware of such defense the day before. At trial the Commonwealth's evidence consisted of the testimony of an alleged accomplice, Bonnie Wieseman, an employee of the shirt factory, who testified to having accompanied the co-conspirators in her car to and from the shirt factory on the evening of the burglary. The Commonwealth then called Patricia Zong to the stand. This prompted a sidebar conference at which the Commonwealth's offer of proof showed that Mrs. Zong would testify that appellant and his co-conspirator had brought the safe in question to her house and opened it with her tools.

Defense counsel, at sidebar, objected to the introduction of this testimony, claiming surprise because the name of this witness had not been given to him by the Commonwealth in its response to his informal request for discovery. See Pennsylvania Rules of Criminal Procedure 305, 42 Pa.C.S.A.

[ 301 Pa. Super. Page 190]

(Purdon Pamp.1982). The judge ordered a recess. From that point, until trial resumed the next morning, the jury was not present at any of the proceedings involved in this appeal. After the recess the judge decided that there was a question as to whether or not Mrs. Zong was an "eyewitness", but that to resolve the matter he would give defense counsel an opportunity to interview her before she testified.

In anticipation of a possible assertion by Mrs. Zong of the fifth amendment privilege against self-incrimination, special counsel was summoned by the court to advise Mrs. Zong. Following discussion with special counsel Mrs. Zong refused to testify, asserting her fifth amendment privilege. The judge ruled that the privilege was properly asserted, and after further discussion on matters not pertinent to this appeal, ordered another recess.

The record shows that during the recess defense counsel had raised a matter with the judge in camera. The judge decided that this should be a matter of record. Accordingly he directed defense counsel, the defendant, a court reporter and deputy sheriffs to retire to his chambers for an in camera conference. There, defense counsel explained that until the offer of proof of Mrs. Zong's testimony he had planned to defend the charges on the basis that the defendant was innocent. But upon counsel's asking the defendant about Mrs. Zong and her proffered testimony, the defendant responded that he thought he had told counsel that he had committed the burglary.

Defense counsel told the court that he concluded therefore that as he would then be offering perjured testimony from the defendant and the two alibi witnesses he must withdraw from the case in order not to violate an ethical rule by aiding in the commission of perjury. The judge pointed out that defense counsel did not necessarily know that the alibi witnesses would be lying. Defense counsel disagreed and insisted upon withdrawing even on pain of being cited for contempt. The judge finally permitted the withdrawal, and informed the defendant that he would appoint the public defender in order that the trial proceed.

[ 301 Pa. Super. Page 191]

The defendant stated at least three times during this colloquy that he did not want the public defender, and wanted to acquire counsel of his own choice. The judge's reaction to this objection to the public defender was, on the record, as follows:

I think my obligation to the defendant and to the court and to the public is to provide as fair a trial as I can under the circumstances. I am reluctant to even let you move for a mistrial at this point or continue the case because I don't know that that would be a voluntary decision on your part. What I have told you is that I will substitute Mr. Manbeck. Whether you use him or not is up to you. You indicate that you don't want him and you can't represent yourself and the obvious answer would be to postpone the trial; but to do that, under the circumstances, is not a voluntary decision on your part -- to move for a mistrial and terminate this trial . . . . You don't have counsel. The counsel I have assigned for you you don't want and it is in the middle of the trial. I think I must direct that this trial continue with Mr. Manbeck as backup counsel to sit in, and you can use him to the extent that you want to use him, and see how it goes.

The judge then called the jury back into the courtroom and excused them for the rest of the day, thus giving the substituted counsel some hours ...

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