J-A11043-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SCOTT MICHAEL STANTON                      :
                                               :
                       Appellant               :   No. 1806 MDA 2019

      Appeal from the Judgment of Sentence Entered November 22, 2017
       In the Court of Common Pleas of Perry County Criminal Division at
                        No(s): CP-50-CR-0000272-2017


BEFORE:      PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED: JUNE 8, 2020

       Appellant, Scott Michael Stanton, appeals from the judgment of

sentence entered in the Court of Common Pleas of Perry County after a jury

found him guilty of two counts each of Aggravated Assault, Simple Assault,

Disarming a Law Enforcement Officer, and Disorderly Conduct, and one count

each of Resisting Arrest and Flight to Avoid.1 Having received an aggregate

sentence of seven to 16 years’ incarceration, Appellant herein contends the

trial court erred in denying his motion for a continuance to retain new, private

counsel to replace conflict counsel on the morning his criminal trial was

scheduled to start. We affirm.




____________________________________________


*Former Justice specially assigned to the Superior Court.
118 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), 5104.1(a), 5503(a)(1), 5104, and
5126(a), respectively.
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      On May 11, 2017, Appellant was charged with the above-listed crimes.

With his jury trial scheduled for Tuesday, October 31, 2017, his court-

appointed conflict counsel, Brittany Shetter, Esq., informed him on Friday,

October 27, 2017, that she had just learned the prosecution received a

recording of him speaking to other inmates regarding his intended testimony

for his case. Attorney Shetter immediately filed a Motion to Dismiss Charges

asserting that the recording was unlawful, and, if deemed admissible,

constituted unfair surprise by giving the Commonwealth new potentially

incriminating evidence for trial.

      On Monday, October 30, 2017, during a telephonic conference, the

Commonwealth assured Attorney Shetter and the court that it would not use

the recording at trial. Accordingly, concluding that a suppression hearing was

not needed and the issue was resolved for purposes of the present trial, the

court denied counsel’s Motion to Dismiss.

      On Tuesday, October 31, 2017, the morning of Appellant’s jury trial,

Appellant addressed the court and requested a continuance to obtain new,

privately retained counsel. When asked why he wished to do so, Appellant

stated generally that he believed conflict counsel mishandled the motion to

dismiss and failed to involve him sufficiently during the entirety of pretrial

proceedings. The following lengthy exchange between the court and Appellant

ensued:

      APPELLANT: Your Honor, I do have something to say. I’m going
      – at this point, I need a continuance; because I’m going to let Ms.
      Shetter go because of the new evidence and the files that she tried

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     to get a continuance. I didn’t find out about it until late Friday,
     and I contact [sic] my family. They’re in the process of getting
     me a new attorney, a paid attorney, to handle it both; but I
     haven’t had enough time. I mean, it just came up to me Friday.
     Like, how am I supposed to get a new attorney in not even 48
     hours? You know what I mean?

     THE COURT:        What came up to you Friday?

     APPELLANT:        The whole – the thing where she just filed for
     dismissal on those grounds that came into – came into play.

     COUNSEL:          The recording, Your Honor, I made him aware
     on Friday.

     THE COURT:         But what does that recording have to do with
     being here for trial today on this case?

     APPELLANT:          Because I don’t feel like I’m being represented
     right, that they should have more weight in what’s happening
     here. Like, it’s not about its content so much as it is how it was –
     how it was obtained. And what it did is it forced my parents’ hand
     to get me a private attorney. Now, because of that, they will; but
     I didn’t have enough time to look into it. And that’s not the only
     issue for the first –

     THE COURT:        First of all, your attorney is a paid attorney.

     ...

     APPELLANT:         Well, she’s represented me from the public
     defender’s office.

     THE COURT:        Whether a private attorney, as you want to call
     them, files this motion, or she files the motion, the result is the
     same. The fact that there may have been a wiretap violation –
     doesn’t affect the outcome of this case. It may create a whole
     new case. I don’t know.

     APPELLANT:        Right.

     THE COURT:        But it has nothing to do with this case today.




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     APPELLANT:        There’s other things, if you want me to continue,
     I can continue on why I want to let her go.

     THE COURT:        You can all you want, but you’re here for jury
     trial today.

     ...

     APPELLANT:        I mean, you’re not giving me a chance to even
     explain what else I need to – why I need to.

     THE COURT:        Well, tell me.

     [Appellant asserts counsel failed to advise him properly as to his
     options during jury selection, but the court explained that he did
     not, in fact, have the option to strike the entire jury pool as he
     believed. Counsel, the court informed Appellant, had advised
     Appellant appropriately.]

     APPELLANT:        So another reason: I just found out that the
     public defender’s office and the DA have a problem. They have
     like a vendetta, if you will, against me for advising the other
     inmates in the prison of things. . . . So being that she’s a stem
     from the public defender’s office, I feel that, that, there might be
     some prejudice right there as into why I need to let her go, why I
     need to get another attorney.

     Do you understand what I’m saying? Like, that was plainly said
     to me – told to me.

     THE COURT:        By Attorney Shetter?

     APPELLANT:        Yes, sir.

     THE COURT:      That she doesn’t want to represent you,
     because she wants you out?

     APPELLANT:         No[. . . .] She said that public defenders,
     certain public defenders have a . . . dislike for me.

     THE COURT:         Okay. Maybe that’s why they conflicted out and
     put this to outside counsel.

     APPELLANT:        No, that not why.

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     THE COURT:          Well, even if it isn’t why, they did. And the
     reason I just sit here and shake my head at that – at your scenario
     here is [counsel] doesn’t work in the public defender’s office. She
     doesn’t work for the public defender’s office. She’s not hired by
     the public defender’s office.

     APPELLANT:         Then who hired her? It wasn’t me.

     THE COURT:        She is what is called conflict counsel. She works
     for the Law Offices of Kevin Prosser. . . . She doesn’t work for the
     public defender’s office. And so what the remedy would be if you
     have a problem with the public defender’s office is to appoint
     conflict counsel, which you already have. I mean that’s why –
     you’re coming up with a reason after reason after reason to delay
     this case today –

     APPELLANT:         Right. I was not.

     THE COURT:         --at 12 after 9:00 on the date of trial.

     APPELLANT:         I tried to do it Friday. . . . I wasn’t here to argue
     the case. She said it was a telephone conference. I didn’t get a
     say in it. So I can’t –

     THE COURT:         Well, you have it today.

     APPELLANT:       I had my attorney put in for the reasons. Those
     weren’t – the ones she put in weren’t all the reasons.

     THE COURT:      I can promise you that if I had all your reasons
     that you gave me today –

     APPELLANT:         So you’re just going to – sorry. Go ahead.

     THE COURT:        If I had those on Friday or today, your motions
     are denied. We are here for trial. And the fact that you think the
     public defender’s office is out to get you and they’re not even
     involved in the case.

     APPELLANT:         Yes, they are.    I’m represented by the public
     defender’s office.

     THE COURT:         No you’re not.

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J-A11043-20



     APPELLANT:        I’m not paying her. Who’s paying her?

     THE COURT:        The county.

     APPELLANT:        So that makes her a public defender.

     THE COURT:        No. That means she’s court appointed. There’s
     a difference there. She does not work for the public defender’s
     office. They have no control over her, none whatsoever.

     APPELLANT:        He has a problem with me, so how is he going
     to prosecute me if he has a problem with me.

     THE COURT:       That’s why he’s prosecuting you.       He’s got a
     problem with you.

     APPELLANT:        Not just because of my case.

     THE COURT:        So you are asking that I declare he has a
     conflict--

     APPELLANT:        Yes.

     THE COURT:        -- and remove him from the case? That motion
     is denied.

     [Appellant then argued he was unaware he could file a motion to
     change venue, which he claimed was necessary because he could
     not get a fair jury pool in the county. The court denied this motion
     because during voir dire the jurors were asked if they knew about
     the case or had conflicts of any sort, and they all answered that
     they did not.]

     ...

     THE COURT:          So you’ve had from May 11 [the date charges
     were filed] till now to have an attorney of your choosing. You’ve
     had from May 11 up until after trial was supposed to start this
     morning to make a motion to have your counsel withdraw, if there
     was a valid reason, which I haven’t even heard a single one, and
     you haven’t done that. Instead you wait till the day of trial trying
     to delay it for reasons that clearly aren’t valid.


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J-A11043-20


      APPELLANT:        Well, I just had my grandfather die on the . . .
      17th of this month; and, as of the 26th, I was left like 10 grand.
      So that allows me to now purchase a lawyer, where I didn’t have
      any funds whatsoever to be able to do that. So now with my wife
      being the power of attorney, she can hire one; and I didn’t have
      that option, you know, whenever these charges were filed. I was
      at the mercy of –

      THE COURT:          No, but you had that option prior to jury
      selection. You had that option prior to this morning. You had that
      option prior to Friday. And you chose not to exercise that option
      until you’re sitting here with the jury waiting –

      APPELLANT:          Yeah.

      THE COURT:          -- on the morning of trial.

      APPELLANT:          It’s just like Tuesday, I had that option.

N.T. 10/27/17, at 9-20.

      Appellant’s jury trial commenced immediately after the court denied

Appellant’s pro se motion for a continuance and the jury found him guilty on

all counts.   Appellant was sentenced, as noted, on November 22, 2017.

Initially, no post-sentence motion or direct appeal was filed.

      To remedy a post-sentence miscommunication between the court and

Appellant, the trial court entered an order reinstating Appellant's post-

sentence motion rights and direct appellate rights on December 18, 2018.

Subsequently, on December 27, 2018, the trial court entered an order in which

it granted Appellant an extension of time to file a notice of appeal or post-

sentence motions. The order provided that the post-sentence motion would

be due within ten days of counsel’s receipt of trial and sentencing transcripts,

or alternatively, the notice of appeal would be due within thirty days of such



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J-A11043-20



receipt. Appellate counsel received the complete set of transcripts on October

7, 2019, and he filed the instant appeal on Appellant’s behalf on November 1,

2019.

        Appellant presents the following question for our consideration:

        Whether the trial court erred in denying defendant’s continuance
        request to obtain alternate counsel?

Appellant’s brief, at 5.

        Appellant argues that the trial court abused its discretion when it refused

to grant him a continuance on the morning of his jury trial to allow him to

obtain new counsel.        In addressing such an issue, this Court has recently

observed:

        The decision to grant or deny a continuance request rests with the
        sound discretion of the trial court and we will not reverse the
        decision absent a clear abuse of discretion. Commonwealth v.
        McAleer, 748 A.2d 670, 673 (Pa. 2000). This Court will not find
        an abuse of discretion if the denial of the continuance request did
        not prejudice the appellant. Commonwealth v. Pettersen, 49
        A.3d 903, 914 (Pa.Super. 2012). In order to demonstrate
        prejudice, the appellant “must be able to show specifically in what
        manner he was unable to prepare his defense or how he would
        have prepared differently had he been given more time.”
        Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super. 2012)
        (citation omitted).

        Both the Sixth Amendment to the United States Constitution and
        Article I, Section 9 of the Pennsylvania Constitution guarantee a
        defendant's right to counsel. McAleer, 748 A.2d at 673. “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.” Id. (internal quotation
        marks and citation omitted).            However, a defendant's
        constitutional right to counsel of his choice is not absolute and
        “must be weighed against and may be reasonably restricted by
        the state's interest in the swift and efficient administration of

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J-A11043-20


       criminal justice.” Commonwealth v. Robinson, 364 A.2d 665,
       674 (Pa. 1976) (internal quotation marks omitted).

       This Court cannot permit a defendant to utilize this right “to clog
       the machinery of justice and hamper and delay the state in its
       efforts to do justice with regard both to him and to others whose
       rights to speedy trial may thereby be affected.” Id. A defendant's
       right to choose private counsel “must be exercised at a reasonable
       time and in a reasonable manner.” Commonwealth v. Rucker,
       761 A.2d 541, 542-43 (Pa. 2000) (citation and emphasis omitted).

       In Commonwealth v. Prysock, 972 A.2d 539 (Pa.Super. 2009),
       this Court set forth the following factors to consider on appeal
       from a trial court's ruling on a continuance motion to obtain
       private representation: (1) whether the court conducted an
       extensive inquiry into the underlying causes of defendant's
       dissatisfaction with current counsel; (2) whether the defendant's
       dissatisfaction with current counsel constituted irreconcilable
       differences; (3) the number of prior continuances; (4) the timing
       of the motion for continuance; (5) whether private counsel had
       actually been retained; and (6) the readiness of private counsel
       to proceed in a reasonable amount of time. Prysock, 972 A.2d
       at 543.

Commonwealth v. Broitman, 17 A.3d 297, 299-300 (Pa.Super.

2019), reargument denied (Oct. 25, 2019). 2
____________________________________________


2 We observe, furthermore, that the granting of continuances in criminal cases
is governed by Pa.R.Crim.P. 106, which provides, in pertinent part, the
following:

       (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



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       Here, our review of the record reveals that the trial court conducted a

thorough inquiry into Appellant's dissatisfaction with conflict counsel, Attorney

Shetter, and found that among his many stated reasons offered in support of

his request for a continuance on the morning of his jury trial, none was

legitimate.    The record demonstrated that Attorney Shetter had provided

Appellant with zealous and competent advocacy to that point and was

prepared for trial.      Moreover, to the extent Appellant had only recently

acquired an inheritance that permitted him to hire private counsel of his

choosing, the trial court observed that by Appellant’s own timeline he had the

opportunity to request a change of counsel a week prior to the start of trial

but elected to wait until the morning of trial that had been scheduled months

in advance.

       Based on these facts, the trial court concluded that Appellant’s last-

minute request was calculated to delay proceedings and that granting such a

request under the circumstances would have placed an unreasonable burden

upon both the court in its management of a busy docket and the

Commonwealth in its administration of justice. We find no abuse of discretion
____________________________________________


              defendant was not aware of the grounds for the motion, or
              the interests of justice require it.

Pa.R.Crim.P. 106(A), (D). See Broitman, 17 A.3d at 300 (discerning no error
with court’s denial of defendant’s request for a continuance to retain new
counsel on morning of scheduled trial) (citing Commonwealth v. Novak,
395 Pa. 199, 150 A.2d 102, 109-10 (1959) (holding the defendant's request
to change counsel on the day of trial was properly denied)).



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in the trial court's denial of Appellant's request for new counsel and a

continuance on the day of the scheduled jury trial, particularly where Appellant

fails to indicate how he was prejudiced at trial by the court’s decision.

      Therefore, we conclude the trial court properly weighed Appellant's right

to counsel of his choice against the competing interests of the court and

Commonwealth in proceeding with a trial scheduled for that morning, and it

reasonably   determined    that   granting    Appellant's   last-minute   request,

unsupported by legitimate reasons, would have worked an undue burden.

Appellant, moreover, provides no meaningful argument that he consequently

suffered prejudice at trial.   Thus, we discern no abuse of discretion in the

court’s ruling denying Appellant's request for a continuance to permit him to

retain new counsel.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2020




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