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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERNEST KEY
Appellant No. 885 EDA 2016
Appeal from the Judgment of Sentence February 10, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000906-2015
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY MOULTON, J.: FILED FEBRUARY 14, 2017
Ernest Key appeals from the February 10, 2016 judgment of sentence
entered by the Montgomery County Court of Common Pleas following his
convictions for driving under the influence (“DUI”) of controlled substances
to a degree which impairs the ability to safely drive, careless driving, and
driving while operating privileges suspended or revoked.1 We affirm.
The trial court summarized the factual and procedural history of this
matter as follows:
On December 17th 2014, Plymouth Township Police
Department in Montgomery County received a report that
a vehicle . . . had crashed into a telephone pole on
Conshohocken Road. Officer Jeff Conrad (“Officer
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*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. §§ 3802(d)(2), 3714(a), and 1543(a), respectively.
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Conrad”) responded to the one-vehicle accident and
witnessed two individuals standing around the vehicle;
later identified as [Key] and Ms. [Aesha] Wheeler. Both
indicated they were not injured and Officer Conrad did not
observe any visible injuries to their persons. [Key] denied
medical assistance from the EMTs on scene.
During Officer Conrad’s questioning, [Key] slurred his
speech, appeared confused, continually nodded, and
appeared to be falling asleep. [Key] held onto the police
car in order to remain standing. [Key] affirmed he was
taking medications daily for a medical condition.
Before his car was towed, [Key] requested his
medications from his vehicle. Officer Conrad observed the
medications in plain sight. The medications were not
entered into evidence and subsequently returned to [Key].
Possessing almost 19 years’ experience, as well as
approximately 80 hours of training with DUI arrests,
Officer Conrad believed [Key] to be impaired. Since [Key]
admitted to driving the vehicle, Officer Conrad suspected
[Key] of Driving Under the Influence. Officer Conrad
placed him into custody and transported [Key] to Mercy
Suburban Hospital for a blood chemical test. National
Medical Services, a national forensic laboratory for
toxicology testing, analyzed the blood and reported two
drugs in [Key’s] system: Benzodiazepine, also known as
Valium, and Oxymorphone, commonly known as
Oxycodone. Both Benzodiazepine and Oxymorphone are
central nervous system depressants.
The court considered [Key’s] Motion to Compel
Discovery and his Petition for Writ of Habeas Corpus for
Dismissal of DUI charge due to circumstantial evidence on
May 18, 2015. [Key] appeared pro se for the consolidated
hearing before Senior Judge Braxton. At this hearing, the
toxicology report was admitted into evidence and the
Commonwealth expressed repeatedly its intent to have the
forensic toxicologist present her opinion during trial. (N.T.,
Habeas Corpus and Motion to Compel Hearing ("HCMC"),
5/18/15, p. 33). Judge Braxton ultimately denied [Key’s]
Motion to Compel Discovery and held that the Habeas
Corpus issue was moot.
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On September 11, 2015, [Key] appeared for a
scheduled bench trial and requested a jury trial.[2]
Thereafter, this matter was rescheduled for trial on
November 18, 2015. [Key] arrived late and trial was
rescheduled for November 20, 2015. On November 20,
2015, this Court first considered [Key’s] Motion to
Suppress, which this Court denied. At that time, defense
counsel requested a continuance to obtain an expert
witness, arguing that the Commonwealth's expert provided
two inconsistent reports. [Key’s] Motion for Continuance
was denied.
After trial on November 20, 2015, a jury found [Key]
guilty of Driving Under the Influence of an Unsafe Nature,
Careless Driving, and Driving Under Suspension. [Key]
was later sentenced on February 10, 2016. For the DUI
conviction, [Key] was sentenced to fines of $2,500 and to
undergo imprisonment for not less than 15 months nor
more than five years in the Montgomery County
Correctional Facility, running concurrently with a previous
sentence. [Key] was given credit for time served in jail
from January 16, 2015 to August 25, 2015 and from
November 18, 201[5] to February 10, 2016. For the
Careless Driving conviction, [Key] was sentenced to pay a
$100 fine. For driving with a Suspended License, [Key]
was sentenced to pay a $500 fine and to serve 90 days in
the Montgomery County Correctional Facility, running
concurrently with the sentence imposed for the DUI
conviction. [Key] was sentenced to pay the costs of
prosecution for all three counts.
Opinion, 7/1/16, at 1-2 (“1925(a) Op.”). Key filed a post-sentence motion
seeking reconsideration of his sentence and a new trial and/or dismissal of
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2
The trial court entered an order dated September 15, 2015,
scheduling a jury trial for November 18, 2015. Because the date on which
Key appeared for his originally scheduled bench trial is unclear from the
record, we will consider that Key had notice of the date of his jury trial as of
September 15, 2015.
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all charges, which the trial court denied on February 29, 2016. Thereafter,
Key filed a timely notice of appeal.
Key raises the following issue on appeal:
DID THE COURT ERR IN FAILING TO GRANT A DEFENSE
REQUEST FOR A CONTINUANCE WHERE THE DEFENSE
RECEIVED THE COMMONWEALTH[’S] EXPERT TOXICOLOGY
REPORT, WHICH INDICATED IMPAIRMENT, 4 DAYS PRIOR
TO TRIAL AND WAS UNABLE TO SECURE AN EXPERT IN
THIS SHORT PERIOD OF TIME TO REFUTE THE FINDINGS
OF THIS REPORT AND PROVE THAT [KEY] WAS TAKING A
THERAPEUTIC [DOSAGE] THAT WAS NOT CONSISTENT
WITH UNSAFE DRIVING AND THE BEHAVIOR EXHIBITED
BY [KEY] AT THE STOP AS TESTIFIED BY THE AFFIANT.
Key’s Br. at 7.
Pennsylvania Rule of Criminal Procedure 106 governs requests for
continuances and provides in relevant part:
(A) The court or issuing authority may, in the interests of
justice, grant a continuance, on its own motion, or on the
motion of either party.
...
(D) A motion for continuance on behalf of the defendant
shall be made not later than 48 hours before the time set
for the proceeding. A later motion shall be entertained
only when the opportunity therefor did not previously
exist, or the defendant was not aware of the grounds for
the motion, or the interests of justice require it.
Pa.R.Crim.P. 106(A), (D).
Our Supreme Court has explained our standard of review for denials of
requests for continuances.
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. As we have
consistently stated, an abuse of discretion is not merely an
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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. McAleer, 748 A.2d 670, 673 (Pa. 2000) (internal
quotations and citations omitted). Accordingly, “[i]t has long been the view
of [the Pennsylvania Supreme Court] that a decision to grant or deny a
continuance to secure a witness is a matter within the sound discretion of
the trial court . . . .” Commonwealth v. Small, 741 A.2d 666, 682 (Pa.
1999). A reviewing appellate court regards the orderly administration of
justice as well as the defendant’s right to have adequate time to prepare a
defense. Id. at 682-83. The court must also consider the following factors:
(1) the necessity of the witness to strengthen the
defendant’s case;
(2) the essentiality of the witness to the defendant’s
defense;
(3) the diligence exercised to procure his or her presence
at trial;
(4) the facts to which he or she could testify; and
(5) the likelihood that he or she could be produced at court
if a continuance were granted.
Id. at 683 (quotation omitted).
“A bald allegation of an insufficient amount of time to prepare will not
provide a basis for reversal of the denial of a continuance motion.”
Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super. 2012). “Instead, an
appellant must be able to show specifically in what manner he was unable to
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prepare his defense or how he would have prepared differently had he been
given more time.” Id. (quotation omitted). Thus, “[w]e will not reverse a
denial of a motion for continuance in the absence of prejudice.” Id.
(quotation omitted).
Key argues that the trial court’s denial of his motion for continuance
was manifestly unreasonable. He contends that he had insufficient time to
hire an expert after the Commonwealth had provided an expert report on
November 16, 2015, four days prior to trial. Key argues that the November
16, 2015 report differed from an earlier expert report that had been
admitted into evidence at a discovery hearing on May 18, 2015.3 Key
contends that he was prejudiced because an expert could have testified as to
the effects of the level of Key’s prescription medication and whether Key’s
actions were consistent with the level of drugs in his system.
We disagree. The toxicology report was available as of May 18, 2015,
and Key does not claim that he received the toxicology report in an untimely
manner.
Further, in September 2015, Key appeared before the trial court for a
scheduled bench trial, at which he requested a jury trial. The jury trial was
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3
Key claims the second expert report “analyzed the police information
and toxicology reports and it purportedly proved impairment,” while the first
expert report was a toxicology report, “which identifies substances in the
blood, which could cause impairment in the absence of other causes.” Key’s
Br. at 11.
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scheduled for November 18, 2015. At the time of the scheduled trial, to
which Key arrived late,4 trial counsel did not seek a continuance on the
ground that he received the second report only two days earlier and would
be unable to retain an expert prior to trial. It was not until November 20,
2015, the date of the rescheduled jury trial, that Key requested a
continuance due to the second expert report.
The trial court further found:
The Commonwealth’s expert witness, Ms. [Ayako Chan-
]Hosokawa, first issued a toxicology report which was
admitted into evidence on May 18, 2015.[5] (N.T., HCMC,
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4
Because Key was late for the November 18, 2015 trial, the court
rescheduled trial for November 20, 2015.
5
Our review of the record indicates that two attorneys – John Kravitz
and Robert F. Datner – had separately entered their appearances on behalf
of Key, on March 3, 2015 and March 19, 2015, respectively. Nonetheless,
Key was pro se at the May 18th hearing, at which he testified. See N.T.,
5/18/15, at 51. It is not clear from the record why Key was not represented
at the hearing.
During trial, the Commonwealth used Key’s testimony from the May
18th hearing as impeachment evidence. N.T., 11/20/15, at 140-41, 148-50.
Key did not object to the admissibility of his prior testimony for purposes of
impeachment. “We have long held that [f]ailure to raise a contemporaneous
objection to the evidence at trial waives that claim on appeal.”
Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.Super. 2013)
(quotation omitted). Moreover, Key did not raise this issue in his
Pennsylvania Rule of Appellate Procedure 1925(b) statement. “[I]ssues not
raised in a Rule 1925(b) statement will be deemed waived for appellate
review.” Commonwealth v. Christmas, 995 A.2d 1259, 1262 (Pa.Super.
2010). Accordingly, any claims for ineffective assistance of counsel arising
out of the failure to object to the admissibility at trial of Key’s testimony
from the May 18th hearing are not properly before this Court at this time,
(Footnote Continued Next Page)
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5/18/15, see Exhibit C-2). This report was available to
[Key] and his counsel since the date of the Habeas Corpus
proceedings. The toxicology report does not offer an
opinion as to whether [Key] was impaired at the time of
the accident/arrest. (N.T., 11/20/15 pp. 109-110).
Instead, a toxicology report only indicates that “if the
individual showed signs of impairment... then these
substances can be responsible for the production of that
impairment.” (N.T., HCMC, 5/18/15 p. 12). Ms.
Hosokawa’s testimony at the trial is considered the
“second report,” wherein she states her findings and
opinion are based upon a phone conference where
Assistant District Attorney Brittenburg recited the police
report. (N[.]T[.], 11/20/15 p. 108).
Ms. Hosokawa further testified the facts of the police
report, as read to her, were consistent with Officer
Conrad’s testimony that she heard in open court on
November 20, 2015. After explaining that “prescription
level” and “level of impairment” are independent of each
other, the expert went on to conclude, within a reasonable
degree of scientific certainty, [Key] was impaired on
December 17, 2014. (N[.]T[.], 11/20/15 pp. 101-104).
While Ms. Hosokawa’s testimony differs from the
toxicology report by further implicating [Key], [Key] had
ample time to retain his own expert to review and render
an opinion on the toxicology report. Yet, he failed to do
so. Accordingly, it was not an abuse of discretion for this
court to deny [Key]’s last minute request for a
continuance.
1925(a) Op. at 5-6 (footnotes omitted). We find no abuse of discretion.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
notwithstanding Key’s ability to bring these claims in a timely filed petition
pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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