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filed: August 23, 1989.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County, No. 549 of 1987.


David G. Ridge, Erie, for appellant.

Douglas J. Wright, Asst. Dist. Atty., Girard, for Com., appellee.

Wieand, Del Sole and Melinson, JJ.

Author: Wieand

[ 387 Pa. Super. Page 167]

Terry Neal was tried by jury and was found guilty of theft by unlawful taking. Post-trial motions were denied, and Neal was sentenced to serve a term of imprisonment for not less than one (1) year nor more than two (2) years. On direct appeal from the judgment of sentence, Neal contends that the trial court committed reversible error by: (1) requiring him to stand trial while wearing prison clothing; (2) refusing to suppress an inculpatory statement which he had made to police; and (3) denying his motion to dismiss pursuant to Pa.R.Crim.P. 1100. His principal argument, however, is that he was denied his constitutional right to counsel when the trial court dismissed his public defender and required him to proceed pro se with standby counsel.

The criminal complaint, signed on October 6, 1986, charged appellant with removing a bank bag containing seven hundred seventy-nine ($779.00) dollars while making a delivery to Lawson's convenience store, Erie, Pennsylvania, on July 9, 1986. Trial began on Friday, May 8, 1987, when a jury was selected to hear evidence, the presentation of which was to begin on Monday, May 11, 1987. At a pre-trial hearing on May 4, 1987, the court had found that the period between February 17, 1987 and March 24, 1987, a period of thirty-six (36) days, was excludable because of a continuance of the preliminary hearing granted on motion of the defense. When this period was excluded, it became clear that the trial against appellant would be commenced within one hundred eighty (180) days after the filing of the

[ 387 Pa. Super. Page 168]

    complaint.*fn1 Therefore, the court denied appellant's motion to dismiss the prosecution. We find no error therein.

Appellant's contention that the trial court erred when it refused to suppress an inculpatory statement which he had made to Trooper Lamont King while in custody is also without merit. During a separate suppression hearing, Trooper King testified and the trial court found that appellant had been fully advised of his rights under Miranda.*fn2 This finding is binding upon a reviewing court. See: Commonwealth v. Neely, 298 Pa. Super. 328, 341, 444 A.2d 1199, 1205 (1982) ("It is . . . exclusively the province of the suppression court to determine the credibility of the witnesses and the weight to be accorded their testimony."). See also: Commonwealth v. Reynolds, 300 Pa. Super. 143, 446 A.2d 270 (1982); Commonwealth v. Butch, 257 Pa. Super. 242, 390 A.2d 803 (1978). Appellant's contention that Trooper King's testimony should not have been received because it was not corroborated by other evidence suggests a misunderstanding of the law. The testimony was properly received, and its credibility was for the trial court. There is here no basis for an appellate court to disturb the finding of the trial court.

[ 387 Pa. Super. Page 169]

Appellant next contends that he was forced to go to trial in prison clothing. Concerning such a claim, the United States Supreme Court has said that "the courts have refused to embrace a mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. Instead they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire." Estelle v. Williams, 425 U.S. 501, 507, 96 S.Ct. 1691, 1694-1695, 48 L.Ed.2d 126, 132-133 (1976). See also: Bentley Page 169} v. Crist, 469 F.2d 854 (9th Cir.1972); Turner v. State, 473 So.2d 639 (Ala.Cr.App.1985); People v. Roman, 35 N.Y.2d 978, 365 N.Y.S.2d 527, 324 N.E.2d 885 (1975).

In Commonwealth v. Keeler, 216 Pa. Super. 193, 264 A.2d 407 (1970), the Superior Court granted a new trial where the trial court had refused to grant a continuance to permit a defendant to obtain street clothing for trial. The defendant had been transferred from a state facility to a county prison on the night prior to trial and was unable to obtain civilian clothing prior to the start of trial. Consequently, he was required to wear prison clothing during the selection of a jury. In holding that the trial court had committed reversible error by refusing a defense motion for a continuance to obtain street clothing, the Superior Court reasoned as follows:

Under our system of criminal justice, defendants are presumed innocent until proven guilty. The burden is on the state to bring forth evidence to overcome that presumption and to prove defendant guilty beyond a reasonable doubt. Such evidence, however, must be competent and probative. It cannot rely for its value upon prejudice and fear. It cannot insinuate without rationale. See, e.g., Commonwealth v. Trowery, 211 Pa. Super. 171, 235 A.2d 171 (1967); Commonwealth v. Bruno, 215 Pa. Super. 407, 258 A.2d 666 (1969).

"A defendant in prison garb gives the appearance of one whom the state regards as deserving to be so attired. It brands him as convicted in the state's eyes. It insinuates that the defendant has been arrested not only on the charge being tried but also on other charges for which he is being incarcerated.

The presumption of innocence requires the garb of innocence, and regardless of the ultimate outcome, or the evidence awaiting presentation, every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man,

[ 387 Pa. Super. Page 170]

    except as the necessary safeguard and decorum of the court may otherwise require." [ Eaddy v. People, 115 Colo. 488], 174 P.2d [717] at 718-719 [(1946)]. See also: Commonwealth v. Reid, 123 Pa. Super. 459, 467-468, 187 A. 263 (1936).

Commonwealth v. Keeler, supra, 216 Pa. Superior Ct. at 195-198, 264 A.2d at 409-410. See also: Commonwealth v. Kellum, 339 Pa. Super. 513, 489 A.2d 758 (1985).

In the instant case, appellant had ample opportunity to obtain civilian clothes but failed to do anything to obtain them. In fact, when civilian clothes were made available to appellant by Erie County Prison officials, he declined to accept them. In finding that there was no merit in appellant's claim that he had been forced to stand trial in prison clothes, the trial court observed:

Here, the defendant was not supplied with civilian clothes when he was transferred from Western Penitentiary. The Erie County Prison officials attempted to provide civilian clothes for the defendant, but the defendant refused to try them on. The defendant and his then defense counsel were given three days advance notice of the date of jury selection but did not make any arrangements to obtain civilian clothes. [Pre-Trial Colloquy Transcript, May 8, 1987, pp. 2-7; Motion to Dismiss Counsel Transcript, May 11, 1987, pp. 16-18]. Additionally, even though jury selection began on May 8, 1987, the trial did not actually begin until May 12, 1987 thereby affording the defendant four more days to obtain other clothing.

Finally, we determined on the record that clothing worn by the defendant was not denotive of prison garb, was not similar to Erie County Prison uniforms, and was equivalent to ordinary work clothes. [Pre-Trial Colloquy Transcript, May 8, 1987, pp. 10-11].

(Trial Court Opinion at p. 6).

The trial court's observations are supported by the record. We conclude, therefore, that a defendant who has had ample opportunity ...

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