COMMONWEALTH v. DeMARCO, 193 Pa. Super. 16 (1960)

163 A.2d 700

Commonwealth v. DeMarco, Appellant.

Superior Court of Pennsylvania.June 13, 1960.
September 16, 1960.

Appeals — Questions not raised in court below — Constitutional questions — Enforcement of rule.

1. Matters not properly raised in the court below cannot be invoked on appeal; and this rule applies even when the question belatedly raised is a constitutional one.

2. While the general rule has occasionally been relaxed because of extraordinary circumstances, it is the intention of the Superior Court that it be enforced.

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Criminal Law — Practice — Counsel for defendant — Reasonable exercise of choice — Remarks of counsel — Reference to prior conviction — Withdrawal of juror — Discretion of trial judge.

3. The accused’s right to choose counsel must be exercised at a reasonable time and in a reasonable manner.

4. A motion to withdraw a juror and continue a case upon the ground of objectionable remarks of counsel depends upon the atmosphere and factual situation of the trial and is addressed to the sound discretion of the trial court.

5. In this case, defendant’s contentions that he was denied the effective representation of counsel of his choice and that an inadvertent reference by counsel for defendant to defendant’s prior conviction of another crime was ground for a new trial, were Held, in the circumstances, to be without merit.

Argued June 13, 1960.

Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, WATKINS, and MONTGOMERY, JJ.

Appeal, No. 30, Oct. T., 1960, from judgment of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, Feb. T., 1958, Nos. 115 and 116, in case of Commonwealth of Pennsylvania v. Patrick DeMarco. Appeal dismissed.

Indictment charging defendant with carrying a concealed deadly weapon, carrying a firearm without a license, assault and battery, aggravated assault and battery, and assault and battery with intent to murder. Before KLEIN, P.J., specially presiding.

Verdict of not guilty directed as to charge of carrying a concealed deadly weapon, verdict of not guilty as to assault and battery with intent to murder, and verdict of guilty as to other charges, and judgment of sentence entered thereon. Defendant appealed.

John Rogers Carroll, with him Howard Gittis, for appellant.

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Augustine J. Rieffel, Assistant District Attorney, with hi Domenick Vitullo, Assistant District Attorney, Paul M. Chalfin,
First Assistant District Attorney, and Victor H. Blanc,
District Attorney, for Commonwealth, appellee.

OPINION BY RHODES, P.J., September 16, 1960:

This is an appeal by defendant from judgment of sentence imposed after a verdict of guilty rendered by a jury in the Court of Quarter Sessions of Philadelphia County on charges of unlawfully carrying a firearm without a license, assault and battery, and aggravated assault and battery.

Defendant did not file a motion in arrest of judgment or for a new trial although, at the conclusion of the trial, he was specifically warned by the court to file his motions, if he so intended, within four days. To this defendant answered: “I will make a motion when I talk it over with my lawyer.” More than eight months later, when defendant was sentenced to a term of not less than one year nor more than three years in the Philadelphia County Prison to begin at the expiration of the sentence he was then serving, neither he nor his then attorney raised any question pertaining to alleged errors at the trial.

Defendant on this appeal contends there was error in the court below in that he was denied the effective representation of counsel of his choice, and that an inadvertent reference by counsel for defendant to defendant’s prior conviction for another crime was ground for a new trial.

We have repeatedly stated that matters not properly raised in the court below cannot be invoked on appeal. Com. v. Mays, 182 Pa. Super. 130, 131, 132, 126 A.2d 530; Com. v. Pittman, 179 Pa. Super. 645, 647, 118 A.2d 214. This rule applies even

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when the question belatedly raised is a constitutional one Com. v. Cauffiel, 298 Pa. 319, 320, 148 A. 311. While the general rule has occasionally been relaxed because of extraordinary circumstances, it is the intention of this Court that it should be enforced. Com. v. Mays, supra, 182 Pa. Super. 130, 132, 126 A.2d 530. We have concluded that the rule must be applied in the case at bar.

We have nevertheless examined the record and find no merit in the questions raised by appellant. Cf. Com. v. Lewis, 187 Pa. Super. 231, 234, 144 A.2d 441. There is no question but that a defendant has a constitutional right to choose, at his own cost and expense, any counsel that he may desire. But i Com. v. Novak, 395 Pa. 199, 214, 150 A.2d 102, 110, it was said: “The accused’s right to choose counsel must be exercised at a reasonable time and in a reasonable manner. . . . He was never denied the opportunity to exercise this right. Defendant knew when his case would be called for trial. He could not wait until the very day of his trial to choose another counsel.” At the beginning of defendant’s trial, Albert S. Oliensis, Esquire, asked defendant: “Do you want me to represent you?” Defendant replied: “Yes, all right.” Mr. Oliensis had previously represented the defendant, and while acting as his counsel in the present case he capably represented defendant. At the beginning of the second day of trial, defendant, after discussion with the court and counsel, voluntarily dismissed Mr. Oliensis as his attorney and proceeded to act as his own counsel. Defendant did not take the stand. The trial judge protected defendant’s rights in every respect.

At the end of the first day of trial, defendant’s counsel, Mr. Oliensis, moved for the withdrawal of a juror on the ground that the jurors had heard an inadvertent statement made by him at the beginning of

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the trial that he represented defendant in a previous trial in which defendant was found guilty. The trial judge stated that he was satisfied that the jurors did not hear what was said.

Defendant’s contentions are without merit. It is clear that defendant was in no way denied effective representation by counsel of his choice. See Com. v. Snow, 178 Pa. Super. 319, 328, 329, 116 A.2d 283. In view of the definite conclusion of the trial judge that the jurors did not hear counsel’s remark concerning defendant’s prior conviction, there was no error in the refusal of defendant’s motion for the withdrawal of a juror. In this respect there was no abuse of discretion. See Com. v. Helwig, 184 Pa. Super. 370, 376, 134 A.2d 694. A motion to withdraw a juror and continue a case upon the ground of objectionable remarks of counsel depends upon the atmosphere and factual situation of the trial and is addressed to the sound discretion of the trial court. Com. v. Trimarchi, 133 Pa. Super. 307, 310, 2 A.2d 540; Com. v. Narr, 173 Pa. Super. 148, 153, 96 A.2d 155.

Appeal is dismissed.