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COMMONWEALTH PENNSYLVANIA v. MARK OWEN WHITE (06/16/86)

submitted: June 16, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
MARK OWEN WHITE, APPELLANT



Appeal from the Judgment of Sentence of August 19, 1985, in the Court of Common Pleas of Berks County, Criminal Division, at No. 84036601.

COUNSEL

Leroy G. Levan, Reading, for appellant.

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

Del Sole, Montemuro and Hoffman, JJ.

Author: Hoffman

[ 358 Pa. Super. Page 18]

This is an appeal from the judgment of sentence for simple assault and harassment. Appellant contends that (1) the trial court erred in denying his motion for a continuance; and (2) his trial counsel was ineffective for (a) failing to conduct a defense, (b) advising him not to consent to a waiver under Pa.R.Crim.P. 1100, and (c) failing to subpoena necessary defense witnesses. We agree that the lower court erred in denying appellant's motion and, accordingly, reverse the judgment of sentence and remand for a new trial.

Appellant, a prisoner in the Berks County Prison, punched a guard and was charged with simple assault and harassment. On the morning of the trial, appellant's counsel motioned for a continuance on the ground that a mix-up in the Public Defender's Office had prevented him from subpoenaing witnesses on appellant's behalf. The court asked appellant if he wanted a continuance and he replied that he did not. The court then denied appellant's motion for a continuance. Appellant was tried by a jury and convicted of both charges. He was sentenced to a six-to-twenty-four-month term of imprisonment. Post-verdict motions were filed and a hearing was held at which appellant was represented by new counsel. The motions were denied and this appeal followed.

Appellant first contends that the trial court erred in denying his motion for a continuance of trial. Appellant argues that he was confused by the terminology used by his

[ 358 Pa. Super. Page 19]

    counsel and by the trial court. Specifically, he argues that he did not understand the difference between a continuance of trial and a Motion for Continuance, which involves a waiver of speedy trial rights under Pa.R.Crim.P. 1100. Therefore, he contends that his refusal of a continuance, with the result that he proceeded to trial without witnesses, was not knowingly, intelligently, and voluntarily made. We agree.

The grant or denial of a continuance is a matter within the discretion of the trial court. Commonwealth v. Scott, 489 Pa. 258, 264, 365 A.2d 140, 143 (1976); Commonwealth v. Warden, 335 Pa. Superior Ct. 315, 318, 484 A.2d 151, 152 (1984); Commonwealth v. Faraci, 319 Pa. Superior Ct. 416, 421, 466 A.2d 228, 231 (1983). When the defense requests a continuance to obtain a witness, the trial court, in exercising its discretion, should consider (1) the necessity of the witness to strengthen defendant's case; (2) the diligence exercised to procure his presence at trial; (3) the facts to which the witness would testify; and (4) the likelihood that the witness could be produced at the next term of court. Commonwealth v. Scott, supra; Commonwealth v. Smith, 442 Pa. 265, 270, 275 A.2d 98, 101 (1971); Commonwealth v. Franks, 271 Pa. Superior Ct. 278, 283, 413 A.2d 404, 407 (1979).

A criminal defendant has a constitutional right to present defense witnesses and evidence. Commonwealth v. Terry, 258 Pa. Superior Ct. 540, 543, 393 A.2d 490, 492 (1978).

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies . . . . This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967) (emphasis added). A waiver of a fundamental right must be knowingly, intelligently, and voluntarily made. Edwards v. Arizona, 451 U.S. 477, 482,

[ 358 Pa. Super. Page 20101]

S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981) (right to counsel); Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972) (right to a speedy trial); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970) (guilty plea). "Courts should indulge every reasonable presumption against waiver and they should not presume acquiescence in the loss of fundamental rights." Barker v. Wingo, supra 407 U.S. at 515-26, 92 S.Ct. at 2189 (citations omitted).

Here, at the preliminary hearing, appellant gave his trial counsel a list of names and addresses of eyewitnesses to the incident that appellant wanted to have testify at trial. It was determined at the hearing on the post-verdict motions that these eyewitnesses would have testified that the guard assaulted appellant first and that appellant punched the guard in self-defense. Due to a mix-up at the Public Defender's Office, appellant's file was misplaced ...


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