Com. v. Smith, C.

J-A17008-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CARL SMITH

Appellant No. 2178 EDA 2013

Appeal from the Judgment of Sentence March 25, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008870-2011

BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 16, 2014

Appellant, Carl Smith, appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas, following his jury trial

convictions for first-degree murder, firearms not to be carried without a

license, carrying firearms on public streets in Philadelphia, and possessing

instruments of crime;1 and bench trial conviction for persons not to possess

firearms.2 We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant

facts of this case. Therefore, we have no reason to restate them.

Procedurally, the Commonwealth charged Appellant with murder, attempted
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1
18 Pa.C.S.A. §§ 2502(a); 6106(a)(1); 6108; 907(a), respectively.
2
18 Pa.C.S.A. § 6105.
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murder, aggravated assault, recklessly endangering another person, persons

not to possess firearms, firearms not to be carried without a license,

carrying firearms on public streets in Philadelphia, and possessing

instruments of crime. Appellant retained private counsel to represent

Appellant at his preliminary hearing. Following the preliminary hearing,

however, Appellant lacked funds to retain private counsel for trial.

Appointed counsel represented Appellant through all pre-trial proceedings

since his appointment.

On February

date of March 18, 2013, private counsel appeared before the court at a

status listing conference and informed the court Appellant had retained him

as counsel for trial. Nevertheless, private counsel stated he was unable to

proceed to trial as scheduled, due to his caseload. The court told private

counsel that trial would not be delayed, and private counsel should enter his

appearance only if he would be ready for trial as scheduled. Private counsel

did not enter his appearance. Meanwhile, appointed counsel continued to

represent Appellant until the scheduled trial date. Between the status listing

conference and trial, Appellant made no further attempts to secure private

counsel for trial.

On March 18, 2013, the first day of trial, private counsel and

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request to go forward with private counsel. The court asked private counsel

if he was prepared to begin trial that day, and private counsel said he was

not. Consequently, the court told the parties that trial would begin as

scheduled, and Appellant commenced trial with appointed counsel.

On March 25, 2013, the jury convicted Appellant of first-degree

murder, firearms not to be carried without a license, carrying firearms on

public streets in Philadelphia, and possessing instruments of crime; and the

court convicted Appellant of persons not to possess firearms.3 That same

day, the court sentenced Appellant to life imprisonment for the first-degree

murder conviction and imposed no further penalty for the remaining

convictions. Appellant timely filed post-sentence motions on March 28,

2013, which he amended on June 27, 2013.4

post-sentence motions by operation of law on July 29, 2013, and Appellant

timely filed his notice of appeal that same day. On August 2, 2013, the

court ordered Appellant to file a concise statement of errors complained of

on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his concise

statement on August 7, 2013.

Appellant raises the following issues for our review:

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3
The court entered nolle prosequi on the remaining charges at the

4
Private counsel represented Appellant for post-sentence motion filings and
continues to represent Appellant on appeal.

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WAS THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW
TO SUPPORT A CONVICTION INSOMUCH AS THE
COMMONWEALTH DID NOT OFFER RELIABLE, BELIEVABLE
EVIDENCE THAT [APPELLANT] HAD THE REQUISITE
INTENT TO COMMIT A MURDER IN THE FIRST DEGREE?

WAS THE VERDICT AGAINST THE WEIGHT OF THE
EVIDENCE FOR THE REASONS DISCUSSED IN [ISSUE
ONE] AND WAS THE VERDICT AGAINST THE WEIGHT OF
THE EVIDENCE BECAUSE NO REASONABLE JURY WOULD

DID THE COURT ABUSE ITS DISCRETION BY PREVENTING
[APPELLANT] FROM HAVING THE LAWYER OF HIS
CHOOSING BY FAILING TO GRANT A TIMELY,
REASONABLE, AND UNOPPOSED CONTINUANCE REQUEST
AND INSTEAD FORCING [APPELLANT] TO GO TO TRIAL
WITH A COURT-APPOINTED LAWYER?

DID THE COURT ERR BY FAILING TO SCHEDULE AN
EVIDENTIARY HEARING SO THAT THE NATURE AND

COULD BE ADDITIONALLY FLESHED OUT ON THE RECORD
AND SO THAT [APPELLANT] COULD PUT EVIDENCE ON THE
RECORD THAT THE COURT ABUSED ITS DISCRETION
BECAUSE HAD THE CONTINUANCE BEEN GRANTED, THE
COURT WOULD HAVE BEEN ABLE TO HANDLE OTHER
CASES?
5

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Lillian H.

Ranso

relief. The trial court opinion comprehensively discusses and properly

disposes of those questions. (See Trial Court Opinion, filed December 24,
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5

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2013, at 4-9) (finding: (1) Commonwealth presented testimony from

several witnesses who identified Appellant as person who killed Victim;

Julian Morales gave signed statement to police stating he heard argument in

Morales ide

brother, testified he broke up fight between Appellant and Victim several

days before shooting; Mr. Claude and Victim saw Appellant with gun on day

of shooting, and Victim told Appellant to put gun down and fight him; Mr.

Claude witnessed Appellant open fire on Victim; Mr. Claude gave police

description of Appellant and told police that Appellant shot Victim in head;

Detective Grebolski testified that U.S. Marshals apprehended Appellant in

Macon, Georgia four days after shooting, and Appellant supplied authorities

with false name when taken into custody; viewing evidence in light most

favorable to Commonwealth as verdict winner, evidence was sufficient to

-degree murder conviction; (2) jury was free to

issues for purposes of

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disposition. Appellant argues the court failed to explain its reasons for

Appellant asserts the court did not conduct an inquiry into the disputes

between Appellant and appointed counsel or give Appellant a deadline for

retaining private counsel. Appellant insists the court made no mention of

whether a continuance would delay the swift administration of justice in this

case. Appellant also complains the court improperly used the amount of

time appointed counsel had represented Appellant prior to trial to justify the

a continuance to ensure he would have competent representation at trial,

continuance request deprived Appellant of his right to counsel of his

choosing.

Alternatively, Appellant claims the court erred by denying his post-

sentence motion for an ev

request to go forward with private counsel was timely and the circumstances

February 19, 2013 proceeding (where private counsel initially appeared

before the court) was not transcribed. Appellant emphasizes the

Commonwealth made no objection to his request to proceed with private

objection because the February 19, 2013 proceeding was not transcribed.

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Appellant avers he wrote three letters to the court complaining about

appointed counsel, some of which are missing from the certified record. Due

to these deficiencies, Appellant contends the record was inadequate to deny

-sentence motion without a hearing. Appellant concludes

alternatively, remand for a hearing so Appellant can supplement the record

with regard to this issue.6 We disagree.

Our standard of review is as follows:

The grant or denial of a motion for a continuance is within
the sound discretion of the trial court and will be reversed
only upon a showing of an abuse of discretion. An abuse
of discretion is not merely an error of judgment; rather
discretion is abused when the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or
ill-will, as shown by the evidence or the record.

Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014), appeal

denied, ___ Pa. ___, ___ A.3d ___ (July 7, 2014) (internal citations and

quotation marks omitted).
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6
The Commonwealth argues Appellant waived his third and fourth issues on
appeal because he did not formally request a continuance. Because the
February 19, 2013 proceeding was not transcribed, we are unable to verify
whether private counsel made an oral motion for a continuance on

request to proceed with private counsel as a motion for a continuance, as a
logical extension of private coun
to proceed at trial as scheduled. The record makes clear Appellant
preserved these issues in his post-sentence motions and in his Rule 1925(b)
statement. Thus, we decline to waive the issues and will treat Appe
claims in the context of a denial of a continuance request.

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With respect to the right to counsel, our Supreme Court has stated:

The right to counsel is guaranteed by both the Sixth
Amendment to the United States Constitution and by
Article I, Section 9 of the Pennsylvania Constitution. In
addition to guaranteeing representation for the indigent,
these constitutional rights entitle an accused to choose at
his own cost and expense any lawyer he may desire. The

significant because an individual facing criminal sanctions
should have great confidence in his attorney.

Commonwealth v. McAleer, 561 Pa. 129, 136, 748 A.2d 670, 673 (2000)

(internal citations, quotation marks, and footnote omitted). Nevertheless:

not absolute. Rather, the right of the accused to choose
his
own clients, must be weighed against and may be

and efficient administration of criminal justice. Thus, this
Court has explained that while defendants are entitled to
choose their own counsel, they should not be permitted to
unreasonably clog the machinery of justice or hamper and

Commonwealth v. Randolph, 582 Pa. 576, 584, 873 A.2d 1277, 1282

(2005), cert. denied, 547 U.S. 1058, 126 S.Ct. 1659, 164 L.Ed.2d 402

(2006) (internal citations and quotation marks omitted).

Additionally, a defendant has no absolute right to a particular counsel,

so a request for continuance to secure the services of a particular counsel

Commonwealth v. Thomas, 879

A.2d 246, 261 (Pa.Super. 2005). When considering whether to grant or

courts have looked to, inter alia

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current counsel constitutes irreconcilable differences, the number of prior

request, whether private counsel was actually retained, and the readiness of

private counsel to proceed in a reasonable amount of time.

Commonwealth v. Prysock, 972 A.2d 539 (Pa.Super. 2009). See also

Commonwealth v. Brewington, 740 A.2d 247 (Pa.Super. 1999), appeal

denied, 563 Pa. 626, 758 A.2d 660 (2000) (holding court acted within its

counsel, where court had previously granted ten defense continuances and

further delay would hinder swift administration of justice); Commonwealth

v. Gray

continuance request to retain private counsel was proper, where appointed

counsel represented defendant for almost two years, defendant did not

request private counsel until four days before jury selection, and private

-defendants, as well as trial witnesses; court did not totally

preclude defendant from exercising right to counsel of his choosing where

court informed private counsel he could enter his appearance if he was ready

to proceed after voir dire was complete, but private counsel declined; it was

of prosecution at which defendant made request to change counsel and

burden to efficient administration of justice that continuance at that juncture

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would cause); Commonwealth v. Boettcher, 459 A.2d 806 (Pa.Super.

proceed with private counsel, where defendant made request on day of trial,

appointed counsel was well-prepared to represent defendant at trial, and

when private counsel appeared in courtroom during jury selection, court

advised counsel he could begin participation in trial immediately but private

counsel declined to do so).

Instantly, the trial court explained

continuance request as follows:

In the instant matter, [appointed] counsel entered his
appearance on August 30, 2011. On February 1, 2012,
this case was listed for a status hearing on February 15,
2013, and listed for a five (5) day jury trial scheduled for
March 18, 2013. On February 15, 2013, the matter was
continued until February 19, 2013, at which point [private
counsel] appeared before this [c]ourt on behalf of
Appellant. [Private counsel] advised this [c]ourt that he
had been retained to represent Appellant but would be
unavailable to go forward to trial on March 18, 2013.
[Private counsel] again appeared before this [c]ourt on the
trial date, March 18, 2013, and requested a continuance
which was properly denied.

At the time of trial, [appointed counsel] had been assigned
-half (1½)
years. This [c]ourt was satisfied that [appointed] counsel
was prepared to provide Appellant effective assistance of
counsel. This [c]ourt did receive letters regarding

ineffective assistance of counsel. However, this [c]ourt
also received a letter on November 7, 2012, claiming that
[private counsel, who had initially represented Appellant at
the preliminary hearing], was also ineffective. Appellant
claimed that [private counsel] had previously failed to
advise Appellant regarding the filing of a Motion to Quash

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that would have been beneficial to Appellant at his
Preliminary Hearing. Based on this finding and this

continuance and proceeded with trial.

(Trial Court Opinion at 10) (internal footnote omitted). We agree.

The record reveals the following chronology of events. Appointed

counsel represented Appellant throughout the pre-trial proceedings since his

appointment on August 30, 2011. At a scheduling conference on February

1, 2012, the court put Appellant on notice that trial would begin on March

18, 2013. During 2012, Appellant wrote two letters to the court complaining

about appointed counsel. In the two letters mentioning appointed counsel,

Appellant requested the appointment of new counsel but did not indicate

that he planned to retain private counsel.7 Appellant likewise wrote letters

in a letter to the court dated October 31, 2012, Appellant complained private

counsel had failed to advise Appellant about a motion to quash. In another

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7

appointed counsel are missing from the certified record, the record contains
two letters from Appellant discussing appointed counsel. Appellant claims he
wrote the court a third letter specifically stating his intention to retain
private counsel. Nevertheless, this letter is not in the certified record; and it
he wants this
Court to review are included in the certified record. See Commonwealth
v. Manley, 985 A.2d 256 (Pa.Super. 2009), appeal denied, 606 Pa. 671,
996 A.2d 491 (2010) (stating appellant has duty to ensure all documents
essential to his case are included in certified record; otherwise, this Court
cannot consider those documents).

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alleged private counsel incorrectly informed Appellant that he was facing a

capital charge.

On February 19, 2013, over a year after the scheduling conference,

private counsel appeared before the court, stating Appellant wished to retain

would allow private counsel to enter his appearance if he could proceed on

the scheduled trial date. Private counsel stated he was unable to do so due

to preparation for another case. Private counsel did not enter his

appearance. Additionally, Appellant made no formal request for a

continuance at that time. Between February 19, 2013 and March 18, 2013,

Appellant made no attempts to secure a continuance and sent no additional

letters to the court complaining about appointed counsel or asking

permission to proceed with private counsel at trial.

On March 18, 2013, appointed counsel and private counsel appeared

before the court on the scheduled trial date. At that time, private counsel

again requested to represent Appellant at trial. The court informed private

counsel that trial was ready to begin, but the court would allow private

counsel to enter his appearance if he was ready to try the case. Private

counsel stated he was still unprepared to go forward and gave no indication

as to when he would be prepared for trial. Consequently, trial began as

scheduled with appointed counsel representing Appellant.

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Under the facts of this case, Appellant failed to exercise his right to

counsel of his choosing within a reasonable time. Appellant was fully aware

of the scheduled trial date as of February 1, 2012, yet he waited until one

month before trial to express his desire to retain private counsel. Moreover,

the court did not completely preclude Appellant from exercising his right to

counsel of his choosing, where it informed private counsel he could enter his

appearance if he was ready to proceed with trial as scheduled, but private

counsel failed to do so. See Gray, supra. Notably, private counsel made

counsel knew on February 19, 2013, that the court intended to proceed with

trial as scheduled, yet private counsel failed to prepare for trial over the next

month and did nothing more to demonstrate his intent to represent

Appellant at trial as scheduled. Instead, private counsel appeared in court

on the day of trial to request a continuance. The court reasonably denied

the request under these circumstances.8 See Antidormi, supra. See also

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8
Appellant relies on Prysock, supra. The facts of Prysock, however, are
distinguishable from the current case because the record in Prysock

handling of the suppression hearing, jury selection, questioning of witnesses
at trial, and refusal to call requested character witnesses. In Prysock, each

intervention, side-bar conferences, recesses, and consultations by both the
Commonwealth and appointed counsel with their respective senior
colleagues. See id. at 545. Thus, this Court determined the trial court had

(Footnote Continued Next Page)

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Randolph, supra; Gray, supra; Boettcher, supra. The record supports

t a transcript from the February 19, 2013

merit no relief. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2014

_______________________
(Footnote Continued)

continuance to proceed with private counsel. Id. Given the stark
differences between Prysock and the present case, Prysock is not
dispositive.

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