J-S08022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MATTHEW KYLE ARTHUR,

                        Appellant                   No. 895 WDA 2017


           Appeal from the Judgment of Sentence, May 17, 2017
              in the Court of Common Pleas of Clarion County,
            Criminal Division at No(s): CP-16-CR-0000409-2016


BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.                        FILED MARCH 22, 2018

     Matthew Kyle Arthur appeals from the judgment of sentence imposed

by the trial court following a jury verdict, where he was convicted of one

count of attempted aggravated assault, graded as a second-degree felony.

18 Pa.C.S.A. § 2702(a)(3). Arthur requested a continuance of the trial two

weeks prior to the scheduled start date, to obtain expert testimony about his

medical condition on the date of the incident.    The trial court denied the

continuance. After careful review, we are constrained to vacate Appellant’s

judgment of sentence and remand for new trial.

     Arthur was found outside the Clarion McDonalds face down and

unresponsive on August 9, 2016.      EMTs were not sure what happened to

him. The EMTs immobilized him, inserted an IV and began to load him in

the ambulance when he started to become responsive.         Arthur began acting



*Former Justice specially assigned to the Superior Court.
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agitated and belligerent, which was not surprising since he was waking up in

an unknown area, and he was tied down. During the ride to the hospital,

Arthur was flailing his arms and was further restrained by an EMT. Arthur

did not physically strike any of the EMTs during the ambulance ride.

       Upon arrival at the Clarion Hospital, Arthur was yelling and trying to

breach his restraints, kicking and flailing and trying to get off the board.

Medical personnel were able to further restrain him. The hospital contacted

the Pennsylvania State Police for assistance, and Troopers Shane Buffone

and Tyler Lauer responded.          Arthur was then in and out of consciousness

and was fully restrained, with a spit sock over his head. 1 Arthur was very

agitated and seemed out of it.                 When conscious, Arthur was yelling

profanities, saying he wanted to get out of there, flailing and trying to free

himself from the restraints. He kicked his shoes off, which allowed him to

get his feet free and kick at Trooper Lauer with both legs, though he did not

make contact.       He pivoted and kicked in the direction of Trooper Buffone,

striking him in the face and causing an abrasion on his lower lip. The

troopers then used a Taser to restrain Arthur. Later, Arthur was life-flighted

from Clarion Hospital to UMPC Presbyterian Hospital in Pittsburgh for further

treatment.



____________________________________________


1The spit sock was placed over Arthur’s head as a precaution. He did not
spit at anyone, but saliva was coming out of his mouth.



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      Arthur was charged with four counts of aggravated assault pursuant to

18 Pa. C.S.A. § 2702(a)(3).     Three counts were for attempted aggravated

assault of Trooper Lauer and two other medical care providers, based on

Arthur’s conduct in flailing and kicking aggressively toward these individuals

during his treatment.     The fourth count was for aggravated assault against

Trooper Buffone, based on Arthur making physical contact when he kicked

the Trooper in the lip.

      A pretrial conference was held on March 1, 2017. At that conference

the court told counsel they would pick their jury on March 20, 2017, and trial

would begin on April 3, 2017. All discovery was to be exchanged within one

week following the pretrial conference. On March 8, 2017, defense counsel

provided Arthur’s medical records to the Commonwealth.        Upon reviewing

the records, counsel discovered that Arthur experienced a “traumatic

subarachnoid hemorrhage.”      Counsel’s basic research indicated that such an

injury could cause seizures, loss of consciousness, and combativeness.

Defense counsel reached out to the District Attorney, who indicated he

would not object to a continuance of the trial based on the circumstances, to

allow defense counsel to obtain an expert witness.

      Defense counsel presented an uncontested motion to continue on

March 20, 2017. The trial court denied the continuance. In doing so, the

trial court reasoned:




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            Now the confusion arises in the UPMC discharge clinic
         summary.       It does indicate discharge diagnosis:
         Subarachnoid     hemorrhage     traumatic.       But    my
         understanding is that it’s not the diagnosis, but rather
         someone on the staff of UPMC using a diagnosis for billing
         or coding purposes, not for medical diagnosis purposes.

            [Arthur] was prescribed psychiatric medications, and he
         was to see his PCP physician in northeast Pennsylvania
         within a week. There’s no indication whether he did or
         whether there was any follow-up care for any possible
         injuries sustained at or about the time of the incident.

N.T., 3/20/17, at 8-9.      The trial court resolved this “confusion” by

concluding, “So I believe the records are, demonstrate from UPMC that

[Arthur] did not sustain a subarachnoid hemorrhage.” Id. at 9.

     Following a jury trial a few weeks later, the jury returned a not guilty

verdict on all counts, except the attempted aggravated assault of Trooper

Lauer.   Arthur was sentenced for this felony charge on May 17, 2017, and

timely filed this appeal. Both Arthur and the trial court have complied with

Pa.R.A.P. 1925.

     Arthur raises three issues on appeal.

     1. Whether his conviction should be vacated and he should be
        acquitted of attempted aggravated assault, because the
        Commonwealth failed to prove all elements beyond a
        reasonable doubt.

     2. Whether his motion for a continuance of trial, made with
        consent of the Commonwealth should have been granted
        to allow him time to retain an expert to review his hospital
        records and offer an opinion as to whether he suffered
        from a brain injury, as stated by the records, which if true,
        could have negated the criminal intent necessary to
        commit attempted aggravated assault.




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      3. Whether his motion to allow testimony of a physician, for
         the purpose of defining medical terms contained in hospital
         records, should have been granted even though the
         physician would not be opining whether the condition
         caused him to be unable to form the necessary criminal
         intent.

Arthur’s Brief at 5-6. Because we find the second issue dispositive of this

appeal, we will only address this issue.

      It has long been the view of this 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 and will not be reversed by an appellate court absent

prejudice or an abuse of discretion.       Commonwealth v. Wesley, 753 A.2d

204, 215 (Pa. 2000). An abuse of discretion is not merely an error of

judgment.     Rather, discretion is abused when the law if over-ridden or

misapplied, or the result of partiality, prejudice, bias or ill-will, as shown by

the evidence or the record. Commonwealth v. Hansley, 24 A.3d 410, 418

(Pa. Super. 2011).       “The grant of a continuance is discretionary and a

refusal to grant is reversible error only if prejudice or a palpable and

manifest    abuse   of   discretion   is    demonstrated.”   Commonwealth     v.

Chamberlain, 731 A.2d 593, 597 (Pa. 1999).

      In reviewing a denial of a continuance, the appellate court must have

regard for the orderly administration of justice, as well as the right of the

defendant to have adequate time to prepare a defense. Wesley, 753 A.2d

at 215.




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      Here, in the motion to continue, Arthur asserted that Clarion Hospital

had diagnosed him with a “traumatic subarachnoid hemorrhage”, which his

counsel believed could have affected Arthur’s ability to form the intent to

commit the crimes charged.      Arthur requested additional time to obtain an

expert to explain his condition and provide a defense to the charges.       In

denying this request, the trial court explained:

      After close review of the records, I found that, while this was the
      initial diagnosis at Clarion Hospital, a UPMC radiologist concluded
      upon further testing that there was “no evidence of acute
      intracranial hemorrhage.”         The references to traumatic
      subarachnoid hemorrhage in the UPMC discharge reports were
      for billing purposes only, and were not a diagnosis of [Arthur’s]
      actual condition. In addition, the Defendant did not produce any
      evidence indicating that a traumatic subarachnoid hemorrhage
      would cause the type of combativeness exhibited by [Arthur] on
      the night in question.

Trial Court Opinion, 7/24/17, at 3.

      Considering both the trial court’s comments at the hearing on Arthur’s

continuance motion, as well as its explanation noted above, it appears the

trial court denied the motion to continue based on its own interpretation of

Arthur’s medical records. The court’s conclusions simply are not supported

by the record.     To the contrary, the diagnosis of “Traumatic Subarachnoid

Hemorrhage” does not appear “for billing purposes only” as suggested by

the trial court.   The court offered no explanation for how it reached this

conclusion. Records from both hospitals list the traumatic brain hemorrhage

as a diagnosis. As such, Arthur should have been given an opportunity to




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present expert testimony about this condition, and was prejudiced when the

trial court denied him this opportunity.

      While we appreciate the need to move cases through the system, a

trial court must also afford a defendant an adequate time to prepare a

defense. This was Arthur’s first motion to continue the trial which was only

listed a few weeks earlier, at the pre-trial conference. The Commonwealth

did not object to the request for a continuance, and has filed no brief in this

appeal.   By substituting its own interpretation of the medical records and

not allowing Arthur to obtain an expert to explain this condition, the trial

court abused its discretion when it failed to grant the request for a

continuance.

      The trial court also concluded that the motion for a continuance was

untimely, because it was not raised until March 17, 2017. We disagree. The

first pre-trial conference in this matter was held on March 2, 2017, at which

point the court ordered the parties to exchange their discovery.            In

gathering his client’s medical records, Arthur’s attorney found the diagnosis

and immediately alerted the District Attorney’s office of his need to call an

expert witness.   The District Attorney’s office did not object. Pennsylvania

Rule of Criminal Procedure 106(D) provides that a motion for a continuance

on behalf of a defendant must be made not later than 48 hours before the

time set for the proceeding. Here, the trial was not scheduled to begin for

two more weeks.    Under these facts, the motion was not untimely.




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        Finally, the denial of the continuance left Arthur without the ability to

adequately defend the charges and without the ability to mitigate or possibly

formulate alternate defenses to the sole crime for which he was convicted.

Although the trial court found that Arthur did not present sufficient evidence

to support the claim that his combativeness was caused by his medical

condition, this is precisely the information Arthur sought by requesting the

continuance.

        In sum, we conclude that the trial court abused its discretion when it

failed to grant a continuance of the jury trial to allow Arthur an opportunity

to call an expert witness to testify about his medical condition at the time of

the incident, which gave rise to the felony charges. We therefore vacate his

judgment of sentence and remand for a new trial.2

        Judgment of sentence vacated.            Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2018

____________________________________________


2   Given our disposition, we need not address Arthur’s remaining issues.




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