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filed: April 13, 1984.


No. 1498 PHILA. 1983, Appeal from the Judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal No. 2471-82


Robert M. Fellheimer, Doylestown, for appellant.

Thomas J. Short, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Spaeth, President Judge, and Cirillo and Johnson, JJ.

Author: Spaeth

[ 327 Pa. Super. Page 507]

This is an appeal from a judgment of sentence for burglary, criminal trespass, and criminal conspiracy. When the trial judge refused to appoint counsel to represent appellant at trial, appellant represented himself. Appellant argues that he was denied his constitutional right to counsel.*fn1 We agree and therefore vacate the judgment of sentence and remand for a new trial.

On July 25, 1982, at about 2:45 a.m., police officers responding to an activated burglar alarm found appellant and his nephew in a storage room at the Blair Mill Village Mall in Montgomery County. Appellant was holding a bag of women's clothing. He was arrested and charged with burglary, criminal trespass, and criminal conspiracy. On September 27, 1982, appellant asked the Montgomery County Public Defender to represent him. The Public Defender refused, and on October 28 appellant appeared before the President Judge of the trial court without counsel. When the attorney from the Public Defender's office stated that appellant was "not qualified for a public defender", N.T. 10/28/82 at 2, the President Judge continued appellant's case to November 8, telling appellant that "you are going to have to obtain private counsel or go to trial without one",

[ 327 Pa. Super. Page 508]

THE COURT: Do you have any other income aside from that?


THE COURT: How much do you earn there?

THE DEFENDANT: About $100 a week.

THE COURT: Do you own an automobile?


THE COURT: What kind of a car do you have?

THE DEFENDANT: 1970 Cadillac.

THE COURT: Well you have no choice, Mr. Brown. You are either going to trial with a lawyer or without one, but we are not paying for one. If you can afford a lawyer then you engage counsel. Do you want some time to hire a lawyer?

THE DEFENDANT: I don't have the funds.

THE COURT: I didn't ask you that. If you want to engage a lawyer of your own, you are going to have to work some arrangements with a lawyer in regard to paying him.

THE DEFENDANT: I'll do the best I can.

N.T. 10/28/82 at 2-4.

When appellant next appeared before the trial court, on November 9, 1982, again without counsel, the trial judge asked appellant whether he wanted to go to trial without counsel. Appellant replied that he had asked Albert Becker, an attorney who had represented him before, to represent him but that Mr. Becker was not available to defend him. The trial judge replied: "Mr. Becker is not the only lawyer in the world." Appellant said: "No, he isn't, but what I'm saying, Your Honor, is that I didn't have sufficient funds to retain the services of counsel. So, consequently, what happened was, I contacted the public defender's office here in the Courthouse and they denied me. Naturally, after I was denied counsel from the public defender's office, I had to appear in court [on October 28] in front of President Judge Lowe." N.T. 11/9/82 at 4. The trial judge then asked the attorney from the Public Defender's

[ 327 Pa. Super. Page 510]

    office to explain why appellant had been denied representation. The attorney explained:

First of all, he made the five hundred dollars bail in this case, Your Honor. The defendant is working, making a net of a hundred bucks a week at a nightclub . . . . He is also owner of a '70 Cadillac in this regard.

As is stated, he had only made one attempt to obtain private counsel, and that was Albert Becker.

Because of the bail money, which is over four hundred dollars he'd get back, the fact that he's working, and the fact he has no dependents, that hundred dollars all goes to him and not to anybody else. The rent is only a hundred and sixty dollars a month. It's the only outstanding liability we saw in this matter. And because of the car he had, he could sell that or he might have obtained a bank loan.

I know if a person is working with bail money, unless he goes to approximately four or five attorneys and shows that the fees that they have charged are way beyond his means, we will not qualify him.

N.T. 11/9/82 at 6.

Appellant explained that his mother had posted the bail, and that the day before appearing for trial he had asked another attorney to represent him but that that attorney had demanded a $4,000 retainer. The trial judge thereupon ordered that the case should proceed to trial:

THE COURT: I'm going to direct this matter proceed to trial. In my judgment, the record supports the finding that Mr. Brown does not qualify for representation by the public defender.

He is gainfully employed, apparently has been for a number of years. He owns an automobile. And in view of the fact that he was advised as of, I assume, late September that he did not qualify --

MR. WALSH [the attorney from the Public Defender's office]: That's correct Your Honor.

THE COURT: He was informed of that judgment on September 27th, 1982 --

[ 327 Pa. Super. Page 511]

MR. WALSH: That's correct.

THE COURT: -- and it's now November 9th, 1982, so he was well aware of the fact that if he was to be represented, it was his ...

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