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HomeMy WebLinkAbout98-2116-20,2122 criminalCOMMONWEALTH VS. JOSEPH WILLIAM WATKINS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-2116 CRIMINAL 98-2117 CRIMINAL 98-2118 CRIMINAL 98-2119 CRIMINAL 98-2120 CRIMINAL 98-2122 CRIMINAL IN RE' DEFENDANT'S POST-SENTENCE MOTIONS BEFORE HESS, J. AND NOW, this ORDER day of December, 1999, the post-sentence motion of the defendant is DENIED. Jaime Keating, Esquire Chief Deputy District Attorney BY THE COURT, Kevi,n.,,~~. Hess, J. Aria Waller, Esquire Assistant Public Defender COMMONWEALTH VS. JOSEPH WILLIAM WATKINS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-2116 CRIMINAL 98-2117 CRIMINAL 98-2118 CRIMINAL 98-2119 CRIMINAL 98-2120 CRIMINAL 98-2122 CRIMINAL IN RE: DEFENDANT'S POST-SENTENCE MOTIONS BEFORE HESS, J. OPINION AND ORDER On July 21, 1999, the defendant was convicted at the above docket numbers involving numerous charges of harassment by communication. Between January 1, 1997, and March 29, 1998, scores of harassing phone calls were received at homes throughout Cumberland County. The defendant has been sentenced to a state correctional institution for an aggregate term of six to twenty-four years. He has since filed the instant post-sentence motion. In the motion, he asserts three grounds for relief with which we deal seriatim. First, the defendant contends that we erred by not expressing on the record the reasons for denying the defendant's oral motion for a trial continuance. Though he was represented by counsel, the defendant, himself, lodged the request. This was done immediately prior to jury selection. The defendant addressed the court, in part, as follows: THE DEFENDANT: I have asked Miss Waller to remove herself from representing me, if she feels I am guilty of the crimes I am accused of, and couldn't give me the best counsel that she is legally bound to give me as being my assigned lawyer. At this time, I am asking for a continuance in this case so 98-2116, 98-2117, 98-2118, 98-2119, 98-2120~ 98-2122 CRIMINAL the Court can assign me another public defender who will represent me in the right way. I ask the Court this request because I cannot afford private counsel, nor can I represent myself due to the nature of the charges and the total amount of counts against me. Also, I don't have the legal know-how in getting the information I need to represent myself in court. I would also like to voice my objections over the selection procedure of picking the jury, If I am to be tried and convicted by my peers or my equals, then I feel my peers or my equals should be the following individuals' Arsonists, burglars, petty thieves, shoplifters, etcetera. I am not an upstanding citizen, and I should not be tried by people who have never been convicted of a crime. THE COURT: For a moment, Mr. Watkins, I thought you were serious. THE DEFENDANT: I am very serious. Notes of Testimony, pp. 6-7. Shortly thereafter, a jury was selected and the trial commenced. It is, of course, the law that an "accused regardless of financial status is guaranteed the right to the assistance of counsel, either counsel of his own choosing, or if indigent or otherwise unable to secure counsel assigned by the court." Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). It is equally well established, however, that a criminal defendant is not entitled to court-appointed counsel of his choice. Com. v. Johnson, 444 Pa. Super. 153,663 A,2d 720 (1995) citing Com. v. Stiles, 229 Pa. Super. 411,323 A.2d 841 (1974). The defendant, in this case, made no allegation that his public defender was unprepared for trial. Mr. Watkins 98-2116, 98-2117, 98-2118, 98-2119, 98-2120, 98-2122 CRIMINAL faulted counsel for failing to subpoena a telephone company represen~at' 'e z~td ~o purstte an alibi defense. A representative of the phone company did, in tact, testify. Given the nature of the charges and the testimony in this case, there is nothing which remotely suggests that an alibi defense would have been efficacious. In any event, it was up to court-appointed counsel to conduct the defense. The second ground for post-trial relief has to do with our refusal to dismiss a juror. It is important to note that this problem arose in the middle of trial. Had there been no alternates, the practical effect of the dismissal of the juror would have been a mistrial. Thus, we hesitate to apply the law with respect to challenges for cause when, in fact, no such challenge was ever made nor was the court permitted to role on the fitness of the juror before he was seated. , Nonetheless, we note the well-established role that the decision on whether to disqualify a juror is within the sound discretion of the court "and will not be reversed in the absence of a palpable abuse of discretion." Com. v. Coulson, 507 Pa. 440, 454, 490 A.2d 811, 818 (1985). During voir dire, the jurors were not examined concerning their acquaintance with certain of the recipients of the phone calls. On the second day of trial in this case, during a break, the court was made aware that juror number eighty-six was acquainted with some of the witnesses who had just testified in court. The witnesses were the parents of certain children who were the victims of the phone calls. The juror stated that his children participated in sports activities with the children involved in this case. Juror eighty-six was questioned outside the hearing of his fellow jurors. He indicated that, notwithstanding his acquaintance with the witnesses, he could be fair. 98-2116, 98-2117, 98-2118, 98-2119, 98-2120, 98-2122 CRIMINAL Important, also, is the fact that the credibility of these witnesses was not at tlae l~ear-~ of this case. There was no serious contention that these persons had not received the phone calls of which they complained. The issue in the case was the identity of the defendant. None of the witnesses with whom the juror was acquainted testified on this issue. Finally, the defendant complains that we erred by impermissibly commenting about him in a disparaging manner in front of the jury. Defendant's brief contends that this occurred on the first day of trial during the testimony of an employee of Cellular One. According to the defendant, it involved a comment by the court in ruling on an objection made to a question asked by Assistant District Attorney Jaime Keating. The defendant states, specifically, that the "judge, in ruling on the objection, remarked that Defendant could have made complaints to the Cellular One employees regarding phone equipment problems and/or phone service problems as a means to cover up harassing calls which he may make at a later time. This remark was made in the presence of the jury." We have been unable to locate any point in the transcript where this occurred. The defendant may have reference to an exchange which occurred on page 57 of the trial transcript where the court made reference to the district attorney's contentions about a cover-up. This was in the context of our ruling on the relevance of the defendant's complaints to the phone company. It occurred after an afternoon recess and at a point where the jury had not yet been brought into the courtroom. 98-2116, 98-2117, 98-2118, 98-2119, 98-2120, 98-2122 CRIMINAL ORDER AND NOW, this day of December, 1999, the post-sentence motion of the defendant is DENIED. BY THE COURT, Jaime Keating, Esquire Chief Deputy District Attorney Aria Waller, Esquire Assistant Public Defender :rlm