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filed: August 3, 1984.


No. 595 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas of Erie County, Criminal at No. 757-1980.


Gary K. Schonthaler, Erie, for appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Rowley, Johnson and Popovich, JJ. Johnson, J., concurs in the result.

Author: Popovich

[ 332 Pa. Super. Page 120]

This is an appeal from the Order*fn1 of the Court of Common Pleas of Erie County sentencing the appellant, Thomas J. Fleming, to a term of 10 to 20 years for robbery. We affirm.

Because of the unusual nature of the case at bar, a detailed accounting is necessary to appreciate the ruling entered herein. Following the issuance of a warrant for the appellant and his subsequent arrest as a result thereof, a preliminary hearing was conducted before District Justice Sophie Hogan on May 13, 1980. On the face of the sheet (captioned "Docket Transcript") filed with the Court of Common Pleas of Erie County by the District Justice appear the typed names of the Commonwealth's witnesses

[ 332 Pa. Super. Page 121]

    who "testified" at the proceeding (i.e., Raymond Fitzgerald, Marie Phillips, Dora Magee and Marbara [sic] Ann Debberry [sic]), and the fact that "defense persons [were so] notified" of the witnesses. Also, in the space next to the block with the caption "Attorney For Defendant" appears the typed name of "D. Watson". Counsel, a public defender, was requested by the appellant on May 7, 1980 after he was advised by the District Justice of his right to apply for assignment of counsel.

On June 4, 1980, defense attorney T. Dana Watson filed an Omnibus Pretrial Motion alleging that "[a]t the preliminary hearing on both charges[ ] various Commonwealth witnesses made an identification of the Defendant in the Courtroom[,]" which he claimed was tainted by an "inaccurate, unreasonable, and unjust" photographic array. The motion was never ruled upon since the appellant failed to appear for the September 1980 Term of Court. A bench warrant was issued on October 7, 1980, appellant was extradicted to this Commonwealth from California and his case was added to the July 1981 Term of Criminal Court.

On July 10, 1981, the appellant, through Attorney Watson, filed an application for a continuance "to retain outside private counsel . . . [and] further time . . . to prepare his defense[.]" (N.T. 7/10/81 at 3) Appellant sought to have his case postponed until November. The court refused to do so, being that it was the District Attorney's office that set the scheduling of cases, and the matter was continued until the next term, i.e., September of 1981, in an effort to accommodate both of appellant's requests.

By September 15, 1981, the appellant had failed to secure counsel, giving as a reason at a second continuance hearing that "they want so much money, so much money." (N.T. 9/10/81 at 3) However, he "guaranteed" the court that if he were granted another continuance until November he would be ready to go to trial. As a compromise, the court informed the appellant that the case would be extended until the October Term of Court. If the appellant was serious about securing counsel he surely could hire one by

[ 332 Pa. Super. Page 122]

    that time, and if the appellant failed to obtain counsel by the date stated, the court advised him that, nevertheless, the case would be tried during the October Term. The appellant acknowledged the court's requirement that he make a "sincere effort to get an attorney." (N.T. 9/10/81 at 4)

Shortly thereafter, on September 14, 1981, appellant admitted his difficulty in raising money and asked the court to appoint counsel for him. During the course of the hearing on the matter, counsel for the Commonwealth remarked that there "was some ambiguity about whether Mr. Watson still represent[ed] Mr. Fleming or not because, frankly, Mr. Watson as little as two weeks ago was attempting to plea bargain the case on Mr. Fleming's behalf." (N.T. 9/15/81 at 5) Appellant retorted that he had not asked for Watson, but, supposedly, Watson was listed to represent the appellant and out of concern for the accused did not want him to go to court without representation. Thus, according to the appellant, Watson "brought these suggestions to [him] as far as pleading guilty." (N.T. 9/15/81 at 6) Nevertheless, the appellant still wanted the opportunity to hire a private attorney and agreed that, if he could not do so, he would "request the public defender[.]" (N.T. 9/15/81 at 9) Before the court consented to a continuance until the November Term of Court, it impressed upon the appellant the seriousness of the charges and his obligation to act with alacrity in locating counsel because the Commonwealth, which was prepared to try the accused since he "absconded the jurisdiction," had "a right to proceed with this case at some point" and not have to summon witnesses only to send them home because the appellant was not ready to proceed.

Again, the appellant stated that "come November, [he] w[ould] be ready" even if it meant that counsel from the public defender's office would have to handle the case.

The court cautioned the appellant that the continuance was being granted, "but with the understanding . . . that [he was] going to trial in November." Appellant agreed.

[ 332 Pa. Super. Page 123]

In point of fact, the record reveals a form document with the legend "Defendant's Statement of Understanding of Rights Prior to Guilty Plea." It was signed by the appellant, dated November 16, 1981 and indicated the entry of a plea to the robbery only -- the firearms offense lodged against the accused was nol prossed. Private counsel (Jay Nedell) represented the appellant. However, after a hearing on January 29, 1982 the plea was withdrawn.

It appears from the record that on February 10, 1982 the appellant requested his private counsel to cease representing him and asked for a public defender. Counsel from the public defender's office (Kenneth A. Zak) did appear with the appellant at a motion to dismiss per Pa.R.Crim.P. 1100. Thereafter, this same attorney filed a motion seeking leave to withdraw on the ground that, inter alia:

7. It is the policy of the Public Defender's Office to refuse representation to an individual who has requested the termination of Public Defender representation in the past in the same case . . . . This position has been the policy of the Public Defender even in cases where defendant has "fired" his public defender and has retained private counsel in the interrim [sic] prior to requesting a public defender later.

8. It is also the policy of the Public Defender to request a formal application of a defendant prior to the assigning of a public defender. That did not take place in this case.

9. . . . Defendant terminated his representation by Attorney Watson. In discharging Attorney Watson defendant discharged the Public Defender's Office as a firm and should not be permitted to obtain the representation of a different member of the Public Defender's staff.

10. While counsel has indeed entered an appearance in this matter, it is submitted that the withdrawal should be permitted in the interests of not only the Public Defender's Office but the administration of justice by this Court.

The motion to withdraw was denied February 11, 1982.

The scenario continues with a proceeding before the Hon. Richard L. Nygaard on February 16, 1982. At that time,

[ 332 Pa. Super. Page 124]

    the appellant, with Attorney Watson present, desired a 2-week continuance to obtain counsel other than Watson. The court noted that Attorney Zak was appointed, but because of the Public Defender's policy against "judgeshopping," the first attorney, i.e., Watson, assigned out of that office was present to handle the litigation. Appellant objected, claiming that Watson's removal in April of 1981 because of a conflict should foreclose the court from "forc[ing]" him upon the accused. On the other hand, the Commonwealth was "ready to proceed" and felt that any continuance would merely prolong an already protracted case without any assurances that the matter would not be postponed at the March Term.

Appellant related that he did not continue the case with prior, private counsel because counsel "asked to be dismissed from the case" and "kept going out in the hallway, three times, and consulted with the [assistant] district attorney . . . ." (N.T. 12/16/82 at 6)

The court conceded that the appellant had the right to "effective" counsel, but not to the right to choose personally counsel from the public defender's office. After the Commonwealth acknowledged that it was ready to proceed and all of its witnesses were present, the court remarked:

Well, this puts the Court in a bind, but it's not a bind of our making and it's not a bind of the Commonwealth's making, it's a bind of your [appellant's] own making. You've come with attorneys before and you've come now after having withdrawn your guilty plea, you've worked with an attorney for a period of time then dismissed him just prior to trial term. I'm not going to continue it. We are going to go to trial. You had best work with your attorney here who has extensive criminal court experience, and whose stewardship in the course of a trial is diligent. I would suggest ...

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