Commonwealth v. Kittrell

427 A.2d 1380, 285 Pa. Super. 464, 1981 Pa. Super. LEXIS 2405
Superior Court of Pennsylvania·Decided April 3, 1981·No. 248·Published·Cited by 35 cases

Opinions

MONTGOMERY, Judge:

The defendant-appellant, Roy Wilbur Kittrell, having been convicted of Recklessly Endangering Another Person,1 and two counts of Terroristic Threats2 now brings this appeal from the judgment of sentence following the dismissal of his post-trial motions. He raises three issues. First he argues he was not afforded reasonable opportunity to obtain [467] private counsel of his choosing. Secondly, he argues he was denied effective assistance of counsel. Lastly, he contends his sentence of not less than three years and not more than eight years in a state penitentiary was excessive.

CONTINUANCE

Appellant was charged on April 6, 1979 and held on $30,000.00 bail, later reduced to $25,000.00 which he could not post. He remained in jail awaiting trial from the date he was charged until July 19, 1979 when his case was called for trial. During this period, he was represented by a public defender, who appeared with him on July 19th and made his first request for a continuance so that he might engage private counsel. Appellant testified he had made two unsuccessful attempts to secure private counsel while he was confined in jail where he was restricted to two phone calls a week; and that he had an income of $250.00 per month from social security; also that he had money in the bank and that his nephew would supply money.

His request was denied for the reasons that (1) the court did not believe that he had means to obtain private counsel, (2) that he had sufficient opportunity to engage private counsel before trial, and (3) that his request for a continuance was an attempt to delay the trial without a valid reason. At the time appellant’s request was made, the Commonwealth was ready to proceed with the trial, having all of its witnesses, albeit few in number, in court.

The allowance of continuances is largely a matter within the discretion of the lower court and the denial of a continuance does not constitute reversible error unless there is an abuse of discretion. Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). It must not be overlooked that one charged with crime has a constitutional right to choose at his own cost and expense any lawyer he may desire. Const. of Pennsylvania Art. 1, § 9, Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (102) cert. denied, 361 U.S. 882, 80 S.Ct. 152, 4 L.Ed.2d 118 (1959), reh. den. 361 U.S. 926, 80 S.Ct. 290, 4 L.Ed.2d 241 (1959).

[468] Generally in determining the question of whether a court abuses its discretion in denying a continuance, an accused’s right to choose a particular counsel, which is not absolute, must be weighed against the public need for the efficient and effective administration of justice. Commonwealth v. Atkins, 233 Pa.Super. 202, 336 A.2d 368 (1975). In determining this issue, each case must be decided by balancing the competing interests. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), reh. den. 377 U.S. 925, 84 S.Ct. 1219, 12 L.Ed.2d 217 (1964).

Viewing this case in light of these principles, we cannot say the lower court abused its discretion under the circumstances present herein. The appellant claimed he had money from social security payments, had money in the bank, and had made unsuccessful efforts to secure other counsel, yet he waited until the day his case was called for trial before seeking a continuance, a tactic condemned in Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). Furthermore, he advanced no irreconcilable differences with the public defender who had represented him for over four months, as was the case in Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976). Merely expressing dissatisfaction, his incarceration in the York County jail would not have prevented him from making his request at an earlier date.

On the other hand, the Commonwealth and the court were both ready to proceed. A continuance under the circumstances would have disturbed the efficiency and effectiveness of the administration of justice by rescheduling the case and revising subpoenas with the resulting lost time of the witnesses.

INEFFECTIVENESS OF COUNSEL

Secondly, appellant alleges the ineffectiveness of trial counsel. Specifically, he complains that counsel (1) [469] failed to question or challenge any jurors, (2) failed to make his opening statement at the beginning of trial, (3) failed to call a known and available eyewitness or any character witnesses, and (4) failed to phrase questions on cross-examination to appellant’s liking.3

The test for determining whether counsel is ineffective is well-known in this Commonwealth. If the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests, then counsel’s assistance must be deemed constitutionally effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978). The corollary to this test is that since “... counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion.” Commonwealth v. Hubbard, 472 Pa. 259, 277, 372 A.2d 687, 695 (1977).

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Commonwealth v. Kittrell, 427 A.2d 1380, 285 Pa. Super. 464, 1981 Pa. Super. LEXIS 2405 (Pa. Ct. App. 1981).

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