No. 1955 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Northampton County, Pennsylvania, Criminal Division at Nos. 1960 and 1963, 1979.
Before Wieand, Cirillo and Popovich, JJ. Wieand, J. files a Dissenting Opinion.
Per Curiam: Judgment of sentence affirmed.
WIEAND, J. files a Dissenting Opinion.
I respectfully dissent. The record demonstrates that appellant did not knowingly and intelligently waive the right to be represented by effective counsel and was, in fact, deprived improperly of that right. Therefore, I would reverse and remand for a new trial.
Appellant's appointed trial counsel testified at a post-verdict, evidentiary hearing that his representation of George Allen, the appellant, had come to an end on February 5, 1980, six days prior to trial. the reason for termination of the attorney-client relationship, he said, had been a disagreement regarding trial strategy. Also on February 5, counsel had written to Allen to advise him that, because he no longer represented Allen, counsel did not intend to prepare for trial. The record is clear, however, that counsel did not request leave of court to withdraw his appearance on appellant's behalf. He also did not advise Allen in the matter of obtaining other representation. On February 11, 1980, counsel appeared at the time set for trial and told the court that he was not prepared for trial and did not intend to represent Allen during trial. The following occurred:
MR. PASLINE: Your Honor, I was appointed by the Public Defender's Office to represent Mr. Allen. I represented him up until February the 5th, 1980, at approximately 2:15 p.m. I went over to discuss this matter with Mr. Allen, his defense in this case, and he indicated to me that he did not wish me to represent him any further.
I sent him a letter of the same date -- or of the same date which he received the 6th, indicating that I would not do anything further in the trial to prepare for trial. That I would make myself available to him if he so wished.
In addition, our investigator also sent him a letter, indicating that he had served four people. One person was not able to be served and the other person had a stroke and could not attend even if we did serve her. I am trying to put on the record today that information, that if Mr. Allen, during the course of he trial, decides that he does not wish to represent himself, that I am not prepared for trial, nor have I prepared points for charge, nor have I done the necessary work that I would normally do if I was going to try the case.
So I am saying that if he wants me to represent him, that I am not prepared to go at this particular moment.
The second thing is that I would like Mr. Allen, if he so wishes to represent himself, to determine whether he wants me to sit with him. I believe that I will have to be in the courtroom, but if he does not want me to sit at counsel table, I will sit in the general audience and I will be available for him for consultation if he so wishes. I think I have to sit in the courtroom if he wants to ask me questions or ask for counsel or advice. I believe that I can give it.
THE COURT: I think I have a little power left in that direction. I think I could excuse you. I don't think he has all the power over you that --
MR. PASLINE: That's correct, your Honor, but I would remain in the courtroom during the trial to be available to Mr. Allen ...