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filed: March 25, 1983.


No. 1687 Philadelphia, 1981 appeal from Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Northumberland County at No. CR-81-71.


Harry V. Klein, Sunbury, for appellant.

Thomas E. Boop, Assistant District Attorney, Sunbury, for Commonwealth, appellee.

Spaeth, Cavanaugh and Montemuro, JJ.

Author: Cavanaugh

[ 311 Pa. Super. Page 538]

Appellant John Robert McCool was convicted by a jury of one count each of kidnapping, unlawful restraint, rape, involuntary deviate sexual intercourse, indecent assault, robbery, and unauthorized use of a motor vehicle. Motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to a total of 30 to 60 years imprisonment. He claims on appeal that the lower court abused its discretion in refusing to grant his request for a continuance for the purpose of retaining private counsel, and that trial counsel was ineffective in various respects. For the reasons discussed below, we vacate the judgment of sentence and remand for further proceedings.

Appellant was imprisoned in New York state at the time he was initially charged with the instant offenses. He was

[ 311 Pa. Super. Page 539]

    brought into Pennsylvania on February 16, 1981 pursuant to the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101 et seq., and was imprisoned in Snyder County where he stood trial on unrelated charges on February 26, 1981. He was then brought into Northumberland County where he was preliminarily arraigned on the instant charges on March 2, 1981. A preliminary hearing was held on March 6, 1981, at which time appellant first met the public defender who had been appointed to represent him. Appellant and his counsel met for the second time at the in-court arraignment held on April 2, 1981. Appellant notified his counsel, by way of a letter dated April 15, 1981, that their relationship was "terminated", whereupon counsel filed a motion requesting leave to withdraw from the case.

At a hearing held on the motion on May 7, 1981, appellant testified that he did not trust his appointed counsel, that counsel believed him guilty and had laughed at his offered alibi defense, and that counsel had not come to see him as he should have. Appellant stated that he would rather proceed without an attorney than proceed with the attorney appointed to represent him. Appellant's counsel testified at the hearing that he personally did not feel that there were irreconcilable differences between himself and the appellant, but he indicated that he did not feel he could effectively represent appellant if appellant was unwilling to cooperate with him. At the conclusion of the hearing, the court denied counsel's motion to withdraw, stating that it did not want to delay the trial, which was scheduled to begin the following week, and that there was not "enough cause shown" to warrant counsel's withdrawal. The court did, however, appoint a second public defender to serve as co-counsel.

Appellant's case was called for trial on May 12, 1981. Prior to the selection of the jury, appellant requested a continuance for time within which to retain private counsel. The court held a brief hearing on the request, at which time appellant reiterated that he did not trust the attorney appointed to represent him and stated that he did not want

[ 311 Pa. Super. Page 540]

    the public defender appointed to serve as co-counsel either, but that he wanted someone who would take a personal interest. He informed the court that he had spoken with his brother the night before and that his brother had agreed to provide money for appellant to obtain private counsel. He requested a continuance of "at least a couple days" so that he could get in touch with his brother again and make the necessary arrangements. The court delayed the start of trial a few hours in order to give appellant a chance to contact his brother and confirm his willingness and ability to provide the necessary funds. Unfortunately, appellant "was ultimately unable to contact his brother, and thus could not with any degree of accuracy relate to the court whether in fact his brother would pay for an attorney, nor how much he could pay, nor which attorney he had in mind to retain." ...

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