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filed: January 30, 1985.


NO. 3059 PHILA. 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Berks County, Criminal No. 81129001 & A Bill


Charles D. Younger, Assistant Public Defender, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.

Spaeth, President Judge, and Rowley and Beck, JJ. Rowley, J., files a dissenting opinion.

Author: Spaeth

[ 338 Pa. Super. Page 425]

This is an appeal from judgment of sentence to life imprisonment for first degree murder. When the case was called for trial, defense counsel requested a continuance on the ground that a psychiatrist appointed by the court to evaluate appellant had not yet done so. The trial court denied the request. Appellant argues that this was reversible error. We agree and therefore vacate the judgment of sentence and reverse and remand for a new trial.*fn1

On May 23, 1981, appellant was arrested and charged with criminal homicide, murder, and aggravated assault for stabbing a man in a bar in Shillington, Berks County. He pleaded not guilty at his arraignment, and on August 10, 1981, he was evaluated by Dr. Larry Rotenberg, a psychiatrist. N.T. 6. On August 12, 1981, appellant filed an application with the trial court for leave to employ a psychiatrist and/or psychologist. The Commonwealth answered, stating that it had no objection to the application, and on September 2, 1981, the trial court entered an order appointing Dr. Rotenberg to evaluate appellant's mental condition and to aid defense counsel in the preparation of appellant's case.

On September 11, 1981, a Friday, defense counsel learned that appellant's case would be called for trial on Monday, September 14, 1981. N.T. 8, 17-18. Although counsel had been informed at appellant's arraignment, on July 31, 1981, that the trial was scheduled to begin on September 14, he believed that because of the outstanding order appointing Dr. Rotenberg, the case would not be called for trial in

[ 338 Pa. Super. Page 426]

September. N.T. 13, 15-16. Counsel had communicated this belief to the District Attorney and had corresponded with him as late as September 9. N.T. 8. However, the District Attorney did not tell counsel that the trial would indeed commence on September 14, until September 11.

Immediately before the trial began, the following colloquy occurred:

MR. MOYER [defense counsel] . . . Your Honor, I'd like to begin by objecting to this trial since I feel that there is an outstanding order, dated September 2, signed by you, in regard to an evaluation, psychiatric evaluation of the defendant by Dr. Larry Rotenberg. Further, at this time --

THE COURT: On that point, let's deal with that, first of all. The file would indicate that you, on behalf of your client, on August 11th, 1981, -- strike that, August 12, 1981, at 2:10 p.m., made application for leave to employ a psychiatrist and/or a psychologist.

MR. MOYER: Yes, Your Honor.

THE COURT: In that petition you asked that the Court permit you, on behalf of your client, to retain either a psychiatrist or psychologist to aid you in the preparation for a suppression hearing and trial, particularly to apprise counsel about defendant's ability to understand his rights and to evaluate his intellectual level and determine his understanding of the crimes charged; is that correct?

MR. MOYER: Yes, sir.

THE COURT: The District Attorney then filed an Answer in which it [ sic ] had no objection to that, but I then appointed Dr. Larry Rotenberg of the Reading Hospital.

MR. MOYER: Your Honor, --

THE COURT: Let me finish. I understand that Dr. Rotenberg did an evaluation of your client even before I appointed him.

MR. MOYER: Yes, sir.

THE COURT: All right. And so that I appointed Dr. Rotenberg by order dated September 2, 1981. Is that correct:

[ 338 Pa. Super. Page 427]

MR. MOYER: Yes, sir.

THE COURT: Now, is there any reason why then Dr. Rotenberg has not -- is not in a position to assist you, having evaluated your client even prior to his appointment?

MR. MOYER: Your Honor, in regard to the application, the County of Berks was also made a party to that application and it was served upon them. I filed this before Judge Schaeffer and Judge Schaeffer felt that the County should have some discretion to whether their funds would be spent. There was no answer from them.

THE COURT: Well, they didn't answer by the return date, did they?

MR. MOYER: No, sir.

THE COURT: All right.

MR. MOYER: On August 10, 1981, Your Honor, defendant was seen by Dr. Rotenberg. I had talked to Dr. Rotenberg at that time and I had talked to the defendant and I felt that there were additional, there were some things that bothered me about the defendant, his inability to remember and recall events, that led to my applying for a psychiatric evaluation.

THE COURT: Well, but has Dr. Rotenberg requested additional time to make any reevaluations or ...

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