Appeal from the Judgment of Sentence January 29, 2008, In the Court of Common Pleas of ALLEGHENY County, Criminal at No(s): CC 200703322.
The opinion of the court was delivered by: Freedberg, J.
BEFORE: BOWES, FREEDBERG, and FITZGERALD*fn1, JJ.
¶ 1 Appellant, Kenneth Prysock, appeals from the judgment of sentence entered on January 29, 2008, in the Court of Common Pleas of Allegheny County. For the reasons discussed below, we vacate the judgment of sentence and remand for a new trial.
¶ 2 On May 10, 2007, Appellant was charged with one count of possession with intent to deliver*fn2 and one count of possession of a controlled substance.*fn3 The charges arose out of a December 16, 2006 incident, wherein Appellant allegedly agreed to sell illegal narcotics to an undercover police officer.
¶ 3 On June 28, 2007, Appellant, who was incarcerated at SCI Albion, filed an application for appointment of counsel, trial on the outstanding charges having been scheduled for August 8, 2007.*fn4 At some point subsequent to the filing of the application, William C. Stanislaw, Esq., of the Allegheny County Public Defenders Office was appointed to represent Appellant. Following his appointment, it appears that the trial was rescheduled for November 1, 2007.*fn5 On October 30, 2007, Attorney Stanislaw filed a motion to suppress.
¶ 4 On November 1, 2007, immediately prior to jury selection, Attorney Stanislaw alerted the trial court that Appellant was dissatisfied with his representation and wished to retain private counsel. N.T. 11/01/07 at 4-12. After some discussion, the trial court formally refused Appellant's request for a continuance to obtain retained counsel. Id. Over Appellant's objection, jury selection commenced. Id. at 13. Several minutes later, the trial court was informed that Appellant wished to represent himself in the proceedings. Id. However, this was in error, as Appellant reiterated that he was dissatisfied with counsel's representation because counsel would not allow him to have the final say in jury selection and that he wanted a continuance to retain private counsel. Id. at 13-18.
¶ 5 The next morning, Lee Rothman, Esquire, attempted to enter his appearance on behalf of Appellant. N.T. 11/02/07 at 19-21. Attorney Rothman stated that he had been retained by Appellant's family but was not prepared to go to trial that day. Id. at 19. Attorney Rothman was unaware that six jurors had already been selected. Id. The trial court denied Attorney Rothman's request for a continuance and jury selection continued with Mr. Stanislaw representing Appellant. Id. at 21.
¶ 6 The trial proceeded with Attorney Stanislaw representing Appellant over Appellant's objections. On several subsequent occasions during trial, Appellant stated his dissatisfaction with Mr. Stanislaw's representation, and the trial court was forced to intervene to resolve problems between Appellant and Attorney Stanislaw. N.T. 11/02/07 at 47-48; N.T. 11/02/07 at 59; N.T. 11/05/07 at 97-104; N.T. 11/05/07 at 141-53; N.T. 11/05/08 at 180-82.
¶ 7 On November 7, 2007, the jury found Appellant guilty of all charges. On January 29, 2008, Appellant was sentenced as a second or subsequent offender to a term of incarceration of 31/2 to 9 years with credit for time served between December 19, 2006, and February 7, 2007. Appellant, now represented by Public Defender Jeffrey Murray, filed a timely notice of appeal. On February 26, 2008, Appellant was directed to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 17, 2008, Appellant filed a request for an extension of time to file his 1925(b) statement; that request was granted on March 18, 2008. Appellant subsequently filed a timely 1925(b) statement and the trial court issued an opinion.
¶ 8 Appellant raises two related claims on appeal.
1. Did the lower court abuse its discretion in failing to grant Mr. Prysock's reasonable request for time to acquire private counsel when it denied a motion for postponement submitted on November 1, 2007, in violation of his U.S. Const. Amend. VI and P.A. Const. Art. 1 § 9 rights?
2. Did the lower court abuse its discretion in failing to grant Mr. Prysock's reasonable request for time to acquire private counsel when it constructively denied a motion for postponement on November 2, 2007, in violation of his ...