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filed: April 19, 1984.


No. 2637 Philadelphia, 1981, Appeal from the Judgment of Sentence of September 29, 1981 in the Court of Common Pleas of Montgomery County, Criminal Division, No. 1612 of 1980


Harold D. Borek, Norristown, for appellant.

J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cercone, President Judge, and McEwen and Hoffman, JJ.

Author: Cercone

[ 328 Pa. Super. Page 41]

Appellant was tried before a jury and convicted of rape, involuntary deviate sexual intercourse, indecent assault, criminal attempt-murder, simple assault, aggravated assault, recklessly endangering another person, terroristic threats, instruments of crime and criminal trespass. Post-trial motions were filed, argued and subsequently denied. Appellant was sentenced to a total term of incarceration of twenty-five (25) to fifty (50) years.

Appellant has taken this appeal raising a multitude of issues. His Statement of Questions Involved is clearly in violation of the limitations established by Pa.R.A.P. Rule 2116(a). While we condemn such a flagrant violation of that rule, we will nonetheless address the numerous issues raised here. Appellant's issues may be divided into four categories: pre-trial errors, trial errors, ineffectiveness of counsel claims, and sentencing errors.

As to a number of issues we find that the trial court's opinion adequately disposed of appellant's contentions and therefore we see no need to further elaborate on the court's decision.*fn1

[ 328 Pa. Super. Page 42]

Among the remaining issues, the first ones we will address are those relating to pre-trial motions.

Pre-trial Motions

Appellant complains that his trial did not commence within the prescribed time of Rule 1100, Pa.R.Crim.P. Appellant was arrested and charged on February 25, 1980. Thus the last day for trial under Rule 1100, barring any excludable time, would have been August 23, 1980. On March 7, 1980 appellant was judged incompetent pursuant to the Mental Health Procedures Act*fn2 and he was admitted to Farview State Hospital on March 27, 1980. On May 5, 1980, appellant was determined to be competent by the staff of

[ 328 Pa. Super. Page 43]

Farview and this information was forwarded to the court on May 12, 1980. Appellant was returned to the Montgomery County Prison on June 2, 1980. The Commonwealth filed a petition on August 7, 1980 to extend the time for trial, requesting an additional 87 days to commence trial.*fn3 A hearing was held on August 7, 1980 after which the Rule 1100 run date was extended from August 23, 1980 (the 180th day from appellant's arrest) to November 18, 1980 (87 days from August 23). On October 28, 1980, a hearing was held on appellant's pre-trial motions for change of counsel and change of venue; both motions were denied. On the following day the remaining pre-trial motions were disposed of and jury selection commenced. The jury was sworn in on October 30, 1980 and the taking of testimony began that same day.

Appellant contends that only the period of March 7, 1980 through May 5, 1980 (the day he was determined to be competent) was excludable time under Rule 1100, since he only was unavailable during that period. The prosecution in turn argues that he was unavailable from March 7, 1980 to at least May 12, 1980, when the court was advised of appellant's competency to stand trial. This period or 66 days would extend the run date to October 28, 1980. The Commonwealth argues that certain pre-trial motions, which had been reserved for the time of trial, were considered on October 28, and hence trial commenced for purposes of Rule 1100 on that day. Therefore, the Commonwealth points out, although an extension of 87 days was granted, 66 days were sufficient since trial began on the 66th day.

While it is clear that a defendant will be deemed unavailable for purpose of Rule 1100 when he is mentally incompetent, see comment to Rule 1100(d)(3)(i),*fn4 here we must determine when such unavailability ended.

[ 328 Pa. Super. Page 44]

In the case of Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974), it was held that it was proper to exclude a "reasonable period" which was consumed in having an appellant committed. However, once the court deems a defendant is no longer incompetent, the defendant is no longer unavailable and any further delay will not be excluded from the Rule 1100 run period. Commonwealth v. Fisher, 283 Pa. Superior Ct. 370, 424 A.2d 510 (1980); Commonwealth v. Quinlan, 259 Pa. Superior Ct. 536, 393 A.2d 955 (1978).

The current facts may be distinguished from Fisher and Quinlan. In both of those cases, it is clear that the delay at issue occurred after the court had either determined that the defendant was competent or had been advised that the defendant was competent. Here, we are concerned with the period between May 5, when the hospital staff found appellant competent and May 12 when the trial court was so apprised.*fn5 We hold that just as in Ware, where delay was incurred in the commitment process, a reasonable period of time, between when psychiatric professionals determined a defendant is competent and when the court is notified of such determination, should also be excluded for purposes of Rule 1100. Recently, in Commonwealth v. Derrick, 222 Pa. Superior Ct. 517, 469 A.2d 1111 (1982) this court affirmed the principle that a defendant's unavailability may cause a delay greater than the actual period of unavailability and such entire period may be excluded. Applying such holding to the current case we find the seven day delay in advising the court of appellant's

[ 328 Pa. Super. Page 45]

    availability is attributed to appellant's prior incapacity. Therefore, the Rule 1100 run date was properly extended, at least, to October 28. We must now determine whether trial "commenced" by or on that day.

Relying upon the comment to Rule 1100(b),*fn6 our Supreme Court has held that where the trial court reserves the resolution of pre-trial motions until the time of trial, and the court after resolving such pre-trial matters proceeds directly into the guilt-determining process, it will be deemed that trial commenced with the hearing of the pre-trial motion. Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981); see also Commonwealth v. Machi, 294 Pa. Superior Ct. 338, 439 A.2d 1230 (1982). In this case, the trial court explicitly reserved the resolution of both the motion for change of venue and the motion to suppress evidence, for the time of trial. The issue of venue was resolved on October 28, followed by the suppression hearing and jury selection on October 29. The "guilt-determining process", with the jury being sworn and testimony taken, commenced the following day. Therefore, we find that for purpose of the speedy trial rule, trial commenced on October 28, and therefore trial was timely.

Appellant also complains that the court erred in not granting his request for the appointment of new counsel. Prior to trial, appellant had addressed several letters to the president judge (who was not the presiding judge) airing his complaints with counsel. Prior to the hearing on the change of venue, appellant again raised orally before the presiding judge his complaint against his counsel. He contended that counsel was incompetent, unprepared and had not consulted with him often enough. As a demonstration of counsel's ineffectiveness, he contended that counsel had

[ 328 Pa. Super. Page 46]

    not filed pre-trial motions until after he had challenged counsel's stewardship for not doing so. Appellant lacked confidence in counsel and contended that irreconcilable differences existed. The court refused the request.*fn7

Appellant claims his request was not based upon "mere shortness of time spent conferring" with him. See Commonwealth v. Weakland, 273 Pa. Superior Ct. 361, 417 A.2d 690 (1979). Instead he complains that counsel did not adequately represent him on pre-trial motions. In particular he refers to counsel's delay in filing pre-trial motions*fn8 and his failure to consult with appellant before counsel discussed the possibility of a plea bargain with the district attorney. Appellant concluded that his lack of confidence was justified by the divergence between what he and counsel thought was the best way to proceed. He contends counsel desired a guilty plea, while appellant wanted to go to trial.

At the hearing before the trial court on the request for new counsel, trial counsel explained that the reason he delayed filing pre-trial motions was because the Commonwealth had not provided him with timely discovery, and in exchange for trial counsel's patience regarding discovery, the Commonwealth agreed to allow counsel to delay the filing of pre-trial motions until discovery had been completed. The Court found that counsel was a competent attorney, who had competently represented appellant on pre-trial matters and counsel was prepared to go to trial. While appellant was free to explain his position, he did not elaborate upon what he perceived to be a disagreement as to the methods of proceeding.

This court, sitting en banc, recently reviewed applicable principles concerning a request for the appointment of new counsel in Commonwealth v. Egan, 322 Pa. Superior Ct. 71, 469 A.2d 186 (1980). After noting that an indigent

[ 328 Pa. Super. Page 47]

    defendant does not have a right to counsel of his choice, we went on to state:

Appellant's mere dissatisfaction with counsel does not work a violation of his Sixth Amendment right to counsel.

This is in accord with the law regarding continuances. The decision whether to grant a continuance is within the discretion of the court below. Commonwealth v. Kittrell, 285 Pa. Super. 464, 427 A.2d 1380 (1981). An appellate court cannot disturb a continuance decision absent an abuse of that discretion.

What would make such a request justifiable? All such requests cannot be per se justifiable. That would enable a criminal defendant to indefinitely delay his going to trial. He would simply have to announce to the court at every trial date that he was dissatisfied with his counsel and wanted a continuance to obtain new counsel. Nor, as noted above, can all such requests be considered per se unjustifiable. (322 Pa. Superior Ct. 79, 469 A.2d 190.)

While a defendant may reject appointed counsel "for good cause shown", Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Pa.R.Crim.P., Rule 318, as noted above "mere dissatisfaction" is not adequate. While Tyler held that "irreconcilable differences", if proven, equals "good cause shown", here appellant has failed to show such. See Commonwealth v. Weakland, supra 273 Pa. Superior Ct. at 366 n. 2, 417 A.2d at 692 n. 2; compare, Commonwealth v. Tyler, supra; Commonwealth v. Nicolella, 307 Pa. Superior Ct. 96, 452 A.2d 1055 (1982). The current case is similar to Commonwealth v. Johnson, 309 Pa. Superior Ct. 117, 454 A.2d 1111 (1983), where the defendant ...

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