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COMMONWEALTH PENNSYLVANIA v. REGINALD H. WARDEN (06/22/84)

submitted: June 22, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
REGINALD H. WARDEN, APPELLANT



NO. 444 HARRISBURG 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Dauphin County, at No. 661 C.D. 1983.

COUNSEL

Lonnie E. Walker, Assistant Public Defender, Harrisburg, for appellant.

Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Del Sole, Popovich and Roberts, JJ. Popovich, J., dissents.

Author: Del Sole

[ 335 Pa. Super. Page 317]

Appellant was convicted, by a jury, of possession with intent to deliver a controlled substance, and unlawful possession of a controlled substance. Post-trial motions were filed and denied. The case proceeded to sentencing, and Appellant was sentenced to eleven and one-half (11 1/2) to twenty-three (23) months imprisonment and fined $1,000. A Motion to Modify Sentence was filed and denied. This appeal followed.

Two issues are raised on appeal: 1) Did the court err in refusing to grant Appellant a continuance so that he could retain private counsel? and 2) Did the court err by failing to place on record the factors considered in imposing sentence?

[ 335 Pa. Super. Page 318]

The facts of this case are as follows: Officers performing surveillance duties observed Appellant and two other individuals engaging in several drug transactions from Appellant's parked automobile. A subsequent search of Appellant and his vehicle revealed $70 on the Appellant's left leg, and five $50 decks of heroin. In the vehicle, a bag containing seventeen $50 decks of heroin and 1/2 ounce of marijuana was discovered.

At Appellant's preliminary hearing, private counsel appeared on Appellant's behalf. However, at Appellant's arraignment, he was represented by an attorney from the public defender's office. Appellant requested a trial by jury, which was set for June 30, 1983. On that date, Appellant, through his counsel requested additional time to prepare for trial. A continuance was granted, and trial was rescheduled for August 1, 1983. Moments before the commencement of trial on August 4th, Appellant sought another continuance. This continuance was denied.

Appellant first argues, that he was denied a right to counsel of his choice when the court failed to grant him a continuance. Appellant asserts that he was indigent at the time he requested a public defender, but he later received a workmen's compensation award. Appellant wished to use this award and the extra time in order to obtain private counsel.

The allowance of continuances is largely a matter within discretion of the trial court, and the denial of a continuance does not constitute reversible error unless there is an abuse of discretion. Commonwealth v. Kittrell, 285 Pa. Super. 464, 427 A.2d 1380 (1981). In determining whether the court abused its discretion in denying the continuance, the accused's right to choose a particular counsel, which is not absolute, must be weighed against the public need ...


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