J-S13012-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY J. DEAN, :
:
Appellant : No. 667 WDA 2018
Appeal from the Judgment of Sentence Entered April 9, 2018
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000571-2017
BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED SEPTEMBER 26, 2019
Because I find that the trial court abused its discretion in denying
Appellant’s motions to continue, I would vacate the judgment of sentence
and remand for a new trial. Accordingly, I respectfully dissent.
By way of background, the Commonwealth began its underlying
criminal investigation in 2016. Appellant was arrested on August 2, 2017. A
preliminary hearing was held on November 3, 2017, a pretrial motions
hearing on February 8, 2018, and a five-day jury trial beginning March 19,
2018. Appellant was convicted of 21 charges and ultimately sentenced to an
aggregate term of 65 to 193 years of incarceration.
In anticipation of the scheduled pretrial motions hearing and jury trial,
Appellant filed his first motion to continue on February 6, 2018. Within that
* Retired Senior Judge appointed to the Superior Court.
J-S13012-19
motion, Appellant sought a continuance to allow counsel to examine the
thousands of pages of discovery already received, plus the additional
discovery counsel had not yet received, and to allow counsel adequate time
to investigate the Commonwealth’s witnesses and locate potential rebuttal
witnesses. Motion to Continue Jury Selection, 2/6/2018, at ¶¶ 2-5. Counsel
contended that “[a] continuance [wa]s necessary given the sheer volume of
information that must be reviewed, analyzed, and prepared for effective
defense in the amount of time left between now and mid-March” and that
the “Commonwealth ha[d] no objection to the granting of this motion.” Id.
at ¶¶ 7-8. The trial court, without explanation, denied the motion on
February 9, 2018. In its Pa.R.A.P. 1925(a) opinion, the trial court explains
that counsel’s “speculation that he would not have adequate time to prepare
for trial” when trial was “still more than a month away” “did not strike the
[trial c]ourt as ‘good cause’ for granting a continuance.” Trial Court Opinion,
9/21/2018, at 1.
Appellant filed a second motion to continue on February 21, 2018,
based upon Dr. Louis Martone’s evaluation of Appellant’s competency to
participate in his defense. Specifically, Appellant sought a continuance to
allow Appellant to receive formal neurological medical testing, as well as the
production of medical records for Dr. Martone to evaluate in order to make a
competency determination. The trial court, without explanation, denied the
motion on the same day. In its opinion, the trial court justifies its denial
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based upon the court’s observations of Appellant’s behavior at trial, which
the trial court found to disprove Appellant’s claim of incompetence. Id. at 2.
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 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. Norton, 144 A.3d 139, 143 (Pa. Super. 2016) (citation
omitted).
This Court has observed that [t]rial judges necessarily require a
great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and
jurors at the same place at the same time, and this burden
counsels against continuances except for compelling reasons.
However, the trial court exceeds the bounds of its discretion
when it denies a continuance on the basis of an unreasonable
and arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay[.] Accordingly, we must examine
the reasons presented to the trial court for requesting the
continuance, as well as the trial court’s reasons for denying the
request.
Id. (citations and quotation marks omitted).
In concluding that the trial court did not abuse its discretion in denying
this motion to continue, the Majority finds that the record supports the trial
court’s reasons for denying the motion. Specifically, the Majority finds, as to
the second motion to continue, that Appellant’s behavior at trial “evidenced
an ability to aid in his own defense[, which] overcame the allegation that
Appellant was not competent to stand trial.” Majority at 6. Additionally, the
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Majority found that Appellant failed to specify to the trial court how counsel
would have prepared differently for trial had the continuance been granted.
Id.
However, in reviewing the reasons offered by Appellant in the request
and the reasons offered by the trial court for denying the motions, I find the
trial court adhered arbitrarily to expeditiousness at the expense of
Appellant’s right to have his counsel adequately prepared for a multi-day
trial on 21 charges in which Appellant received a sentence of 65 to 193 years
of incarceration. Given the sheer volume of discovery in this case, which
was the result of a lengthy investigation by the Commonwealth, and that
counsel still had not received all discovery materials one month before the
scheduled jury trial date, counsel made a justifiable request to continue, to
which the Commonwealth did not object. “Swift resolution of cases is, no
doubt, the linchpin of judicial economy. However, it is not an end in itself.”
Rutyna v. Schweers, 177 A.3d 927, 937 (Pa. Super. 2018) (en banc). As
such, I find that the trial court’s insistence upon keeping the same trial date
despite justifiable requests for continuance is an abuse of discretion.
Accordingly, I would vacate the judgment of sentence and remand for
a new trial.
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