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filed: January 4, 1985.


No. 3611 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 3784 November, 1981.


Harold Diamond, Philadelphia, for appellant.

Thomas R. Quinn, Assistant District Attorney, for Commonwealth, appellee.

Wickersham, Wieand and Lipez, JJ.

Author: Wieand

[ 337 Pa. Super. Page 142]

Edward Glessner, having been tried and convicted in Philadelphia Municipal Court for violations of the Uniform Firearms Act,*fn1 appealed to the Court of Common Pleas. Upon trial de novo before the Honorable Stanley L. Kubacki, sitting without a jury, Glessner was found guilty of having a fully loaded, unlicensed revolver in his possession on March 15, 1981. Post-verdict motions were denied, and a sentence of two and one-half to five years imprisonment was imposed. On direct appeal, Glessner contends that: (1)

[ 337 Pa. Super. Page 143]

    his right to a speedy trial both in Municipal Court and in the Court of Common Pleas, as guaranteed by Pa.R.Crim.P. 6013, was violated; (2) the trial court erred in denying a motion to suppress the evidence seized at the time of appellant's arrest; and (3) prior counsel rendered ineffective assistance. We find no merit in these contentions; and, accordingly, we affirm the judgment of sentence.

Glessner's preliminary arraignment on the Municipal Court charges took place on March 16, 1981. Pursuant to Pa.R.Crim.P. 6013(a)(2), trial on these charges was required to be commenced within 120 days, i.e., on or before July 16, 1981. On April 2, 1981, Glessner collapsed during police interrogation and was committed to St. Luke's Hospital, where he was found to be suffering from viral hepatitis. He remained hospitalized, under medication and paralyzed for much of the time, until October 30, 1981. On November 17, 1981, a hearing on defendant's motion to suppress physical evidence was held and the motion denied; his trial in Municipal Court took place immediately thereafter.

Pursuant to Pa.R.Crim.P. 6013(d)(2)(i),*fn2 the period of Glessner's unavailability for trial must be excluded in computing the time for commencement of trial. Glessner was unavailable for a period of 197 days because he was hospitalized. See: Commonwealth v. Caden, 326 Pa. Super. 192, 201, 473 A.2d 1047, 1051 (1984) (defendants who are hospitalized when seriously ill are deemed unavailable for Rule 1100 purposes). Accord: Commonwealth v. Whitner, 278 Pa. Super. 175, 420 A.2d 486 (1980); Commonwealth v. Quinlan, 259 Pa. Super. 536, 393 A.2d 955 (1978). When the period of 197 days is excluded from the period preceding appellant's trial on November 17, 1981, it is quite clear that appellant's trial was held within the time constraints of Rule 6013. In view of the excludable time, it is unnecessary

[ 337 Pa. Super. Page 144]

    to review the court's order of August 10, 1981, which granted an extension of time within which to commence trial.

After an appeal had been filed in the Court of Common Pleas, an order was entered on April 15, 1982 which extended the time of trial until May 13, 1982. This order was entered with the express agreement of defense counsel who told the court, in Glessner's presence, that the Commonwealth's request had been discussed and would not be opposed. Appellant, therefore, will not be heard to challenge the propriety of this extension order. See: Commonwealth v. Brown, 497 Pa. 7, 12, 438 A.2d 592, 595 (1981); Commonwealth v. Sutherland, 305 Pa. Super. 1, 6-7, 451 A.2d 1, 3 (1982).

The evidence showed that on March 15, 1981, at or about 9:25 p.m., two Philadelphia police officers who were on routine patrol in the 800 block of Rising Sun Avenue observed appellant lying on the front seat of a parked Chevrolet Nova. His head was under the dashboard, and his body was lying across the passenger's side of the front seat. Officer Leo Jackson approached the passenger's side of the parked car and asked appellant if the car belonged to him. Appellant said that it did, but he was unable to furnish any proof of ownership. Appellant was then asked to step out of the vehicle. When he did so, Jackson observed three live bullets on the floor of the driver's side. Appellant was thereupon frisked; and a fully loaded revolver was found tucked in his waistband.

After a pre-trial motion to suppress this evidence had been heard in the Municipal Court, the Honorable Joseph R. Glancey held as follows:

THE COURT: I'm denying the motion. I think the officer has a right seeing the defendant lying under the dashboard on the driver's side to ask at least "Is that your car". When the defendant said he didn't have a registration the officer had a right to ask him to step out of the car. Seeing the bullets, the rounds in plain view he

[ 337 Pa. Super. Page 145]

    had a right, at least had reasonable suspicion to perform a pat down.

This ruling was affirmed by Judge Kubacki of the Court of Common Pleas. We agree that the motion to suppress was properly denied.

Glessner had been observed by police at or about 9:25 p.m., in the dark of night, under the dashboard of a parked car in a business district of Philadelphia. Officer Jackson could reasonably approach Glessner and inquire as to the reason for his presence in the car. "'There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.'" Commonwealth v. Jones, 474 Pa. 364, 370, 378 A.2d 835, 838 (1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978), quoting from Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, 913 (1968) (White, J., concurring). "[A] policeman may approach a citizen on the streets in order to put himself in a position to address those questions to the citizen." Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241-1242 (1977). See: United States v. Mendenhall, 446 U.S. 544, 553-554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 508-509 (1980) (plurality opinion); Commonwealth v. Williams, 287 Pa. Super. 19, 22-24, 429 A.2d 698, 700-701 (1981). Once Officer Jackson had determined that Glessner could not offer proof of his ownership of or rightful presence in the parked car, he could properly ask Glessner to get out of the car so that he could maintain the status quo and obtain more information. Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-617 (1972); Commonwealth v. O'Neal, 321 Pa. Super. 323, 325, 468 A.2d 500, 502 (1983); Commonwealth v. Brown, 243 Pa. Super. 285, 288, 365 A.2d 853, 855 (1976). See: Terry v. Ohio, supra; Commonwealth v. Hall, supra; Commonwealth v. Evans, 314 Pa. Super. 16, 460 A.2d 350 (1983); Commonwealth v. Woodard, 307 Pa. Super. 293, 453 A.2d 358 (1982). When Officer Jackson observed live bullets on the floor of the car, he could then conduct a patdown of Glessner's person for his own safety.

[ 337 Pa. Super. Page 146]

    upon the defendant to prove that the witnesses had favorable testimony to offer and that the defendant identified them or informed counsel of their existence. See: Commonwealth v. Clemmons, supra, 505 Pa. at 365, 479 A.2d at 959; Commonwealth v. Allen, 501 Pa. 525, 533-534, 462 A.2d 624, 629 (1983); Commonwealth v. Wade, 501 Pa. 331, 333, 461 A.2d 613, 614 (1983); Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 215 (1983); Commonwealth v. Bailey, 322 Pa. Super. 249, 262, 469 A.2d 604, 611 (1983); Commonwealth v. Blackwell, 312 Pa. Super. 117, 122, 458 A.2d 541, 544 (1983).

At the post-trial hearing on appellant's averments that counsel had rendered ineffective assistance, appellant expressed a desire to represent himself, with counsel standing by to render assistance if requested. The court admonished him regarding the dangers inherent in self-representation but acceded to appellant's request. Counsel remained present during the hearing on post-trial motions where suppression hearing witnesses were identified as Robert Ruddy and Patricia Canoe. Ruddy was asserted to have been present at the time of appellant's arrest, and Patricia Canoe, appellant's aunt, was alleged to have been the owner of the vehicle in which appellant was found. However, no testimony was offered. Neither Ruddy nor Ms. Canoe was called to give testimony during the post-trial hearing.*fn3 Thus, there is no record and no way of knowing that the testimony which they would have given, if called as witnesses during the pre-trial suppression hearing, would have been helpful. The aunt's ownership of the car, standing alone, was not determinative or even relevant to the existence of reasonable suspicion or probable cause on the part of the arresting officer. Moreover, there is no evidence that suppression counsel had been aware of these witnesses or the facts, if any, which their testimony would have imparted. Thus, it is patently clear that appellant failed to

[ 337 Pa. Super. Page 148]

    prove ineffective assistance of counsel during the pre-trial proceedings.

In an attempt to avoid the consequences of this deficiency, Glessner also contends that stand-by counsel was ineffective during the post-trial, evidentiary hearing because he failed to advise appellant fully. This argument is frivolous. Glessner voluntarily chose to represent himself despite the court's clear admonition regarding the pitfalls of such a procedure. The argument on appeal that a defendant received ineffective assistance of counsel "is not available to one who insists on self-representation." Commonwealth v. Andrews, 282 Pa. Super. 115, 130, 422 A.2d 855, 862 (1980). Glessner expressed no dissatisfaction with the service of post-trial counsel at the time of the hearing. He cannot now challenge his own ineffectiveness or shift the responsibility therefor to stand-by counsel, who occupied only an advisory role. See: Commonwealth v. Celijewski, 324 Pa. Super. 185, 190, 471 A.2d 525, 528 (1984).

Judgment of Sentence affirmed.

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