                                  [J-76-2014]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

   CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


COMMONWEALTH OF PENNSYLVANIA, :               No. 7 MAP 2014
                              :
               Appellant      :               Appeal from the order of Superior Court at
                              :               No. 1135 EDA 2012 dated April 10, 2013,
                              :               reconsideration denied June 12, 2013,
           v.                 :               reversing and remanding the Delaware
                              :               County Court of Common Pleas, Criminal
                              :               Division, judgment of sentence at No.
WILLIE LEE BROOKS,            :               23-CR-0000811-2009 dated October 25,
                              :               2011.
               Appellee       :
                              :               ARGUED: September 9, 2014


                                         OPINION


MR. CHIEF JUSTICE CASTILLE                              DECIDED: November 20, 2014
       This is an appeal by the Commonwealth of Pennsylvania from the order of the

Superior Court which reversed the judgment of sentence imposed on appellee Willie Lee

Brooks and remanded for a new trial on grounds that the trial judge erred in denying a

continuance request made by appellee, on the day scheduled for jury selection, on the

ground that he wanted to represent himself pro se. The case involves the intersection of

principles involving the right to self-representation and the discretionary authority of the

trial court in managing trial schedules. Because we find that the trial court did not abuse

its discretion in the circumstances which we further examine below, we vacate the
Superior Court’s order and remand for that court to consider appellee’s remaining

appellate issues.1

        On December 6, 2006, officers from the Radnor Township Police Department

responded to a report of a suspicious person in the rear yard of a private residence.

When the officers arrived, an unknown individual discharged a weapon in their direction

and fled the scene. The shooter remained at large until July 13, 2007, when appellee

was arrested for another offense. During their investigation of the other offense, the

police found evidence that linked appellee to the 2006 Radnor shooting and, on January

30, 2009, appellee was charged with crimes related to that shooting. After a preliminary

hearing in the Delaware County Court of Common Pleas, appellee was bound over for

trial, and counsel was appointed to represent him. 2        The pre-trial conference was

repeatedly continued, and a scheduled July 18, 2011 trial date (nearly two and one-half

years following the lodging of charges) was continued to August 15, 2011. On August

16, 2011, the day jury selection was to begin, appellee asked for leave to represent

himself, and for a continuance in order to prepare his defense. After a colloquy, the trial

judge, the Honorable Michael F. X. Coll, concluded that the request was a delaying tactic,

and denied a continuance. Given the denial, appellee acceded to being represented by

appointed counsel, a jury was selected, and the case proceeded to trial as scheduled.

On August 19, 2011, the jury found appellee guilty of various counts of criminal attempt to

commit homicide, possession of firearm prohibited, possession of an instrument of crime,



1 Because the panel awarded a new trial on the continuance issue, it did not reach
appellee’s additional issues, which included challenges to the jury selection process and
the trial court’s ruling regarding the admissibility of prior convictions.

2   At the time, appellee was incarcerated in the Federal Detention Center in Philadelphia.




                                       [J-76-2014] - 2
and loitering and prowling at night.3 Appellee was sentenced on October 25, 2011; a

post-sentence motion was filed and denied. Appellee then filed a notice of appeal to the

Superior Court.

        In its Rule 1925(a) opinion,4 the trial court explained that it properly denied a

continuance because appellee’s “stated desire to represent himself was a mere ploy for a

delay of the trial.”   Tr. Ct. Opinion at 6. The court noted that appellee’s trial counsel

“had a year to prepare for trial, during which time he gathered quite a bit of evidence,” and

counsel had declared himself to be “extraordinarily well-prepared.” Id. at 7, citing N.T.

8/16/11, 5, 8.    The court further stated that the “dockets indicate that the pre-trial

conference was continued six times and trial was continued from July 18, 2011 to August

15, 2011.” The court also deemed it significant that: “Once [appellee] learned that this

Court would not continue the matter again, he withdrew his request to represent himself.

It is clear to this Court that [appellee’s] request was a mere gambit for a delay of the trial.”

Id.

        The Superior Court reversed in a published panel opinion authored by Judge

Lazarus, and joined by Judges Ott and Strassburger. Commonwealth v. Brooks, 66

A.3d 352 (Pa. Super. 2013).        The panel ruled that the trial court erred in denying

appellee’s request for a continuance in order to represent himself. The panel reasoned

that appellee’s request was made before jury selection, and was therefore timely. The

panel further explained its view that consideration of intent in making a continuance

request was “critical, and the trial court must determine if the motion to proceed pro se

with a continuance is a reasonable attempt to delay the proceedings for the legitimate


3   18 Pa.C.S. §§ 901, 907, 6105, 5506.

4 See Pa.R.A.P. 1925(a) (upon receipt of notice of appeal judge shall file opinion of
reasons for rulings on errors complained of by appellant).



                                       [J-76-2014] - 3
purpose of preparing a defense, or if it is intended to obstruct the process of justice and

frustrate the operation of the court.” 66 A.3d at 356. The panel determined that there

was little support in the record for the trial court’s determination that appellee’s request

was a “mere ploy” to delay his trial:

               While we must give deference to the trial court, we can find little
       support in the record for the contention that Brooks was engaged in an
       improper attempt to delay his trial. Of the six continuance motions, three
       suggested that Brooks was not even in the courtroom, as in the place of
       Brooks' signature is written “ATTY WILL NOTIFY DEF.” Much of the
       documentation regarding these motions is incomplete, and thus it is difficult
       for this Court to discern from the original record the reasons for each
       continuance. There is, however, evidence on the record that the
       proceedings were delayed by waiting for federal authorities to forward
       relevant records. . . . On the first day of trial, Brooks' counsel told the court
       that four days earlier he had received “140 pages of transcripts from
       Federal Court which [Brooks] had not had a chance to read.” This also
       supports a finding that there was delay in obtaining documentation
       regarding the related federal prosecution of Brooks. None of this suggests
       Brooks was engaged in an improper attempt to delay or frustrate the
       proceedings.

Id. at 358 (record citations omitted).

       The panel then held that “[w]here the court finds that the defendant is engaging in

improper delay, the court must place sufficient evidence on the record to support this

conclusion.” Id. at 359. After concluding that the trial court here abused its discretion

when it failed to place such evidence on the record, the panel further held that “absent a

compelling reason supported by the record,” the denial of appellee’s continuance request

violated his Sixth Amendment right to represent himself under Faretta v. California, 422

U.S. 806 (1975). The panel thus reversed the judgment of sentence and remanded for a

new trial. Id.

       The Commonwealth filed a petition for allowance of appeal, which this Court

granted to consider the following issue: “Where the trial court concludes a continuance


                                         [J-76-2014] - 4
request was made solely for purpose of delay, must the court support its decision by

placing evidence on the record or articulating ‘compelling reasons’?” Commonwealth v.

Brooks, 86 A.3d 830, 831 (Pa. 2014).

       Appellate review of a trial court’s continuance decision is deferential. “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. Randolph, 873 A.2d 1277, 1281 (Pa.

2005) (quoting Commonwealth v. McAleer, 748 A.2d 670, 673 (Pa. 2000) (internal

citations omitted)). In contrast, our review of the Superior Court’s determination that the

trial court abused its discretion here is not deferential, for we are identically situated to the

Superior Court when reviewing the exercise of the trial court’s discretion.

       The Commonwealth argues that the Superior Court erred because the party

requesting the continuance (here, appellee) has the burden to justify the request, and the

trial court has no burden. According to the Commonwealth, appellee had a year to

prepare for trial and his last-minute request for continuance was untimely, insincere, and

pursued only for purposes of delay. The Commonwealth posits that appellee asserted

his right to represent himself only as a bargaining device for a continuance.               The

Commonwealth contends that the published Superior Court decision here devised a new

standard that: 1) creates a presumption that a last-minute request to proceed pro se

should be granted; 2) requires the trial court to demonstrate a “compelling reason” for




                                        [J-76-2014] - 5
denying such continuance; and 3) assigns to the trial court the burden of placing

“sufficient evidence” on the record to support its conclusion that the defendant is

engaging in improper delay. The Commonwealth acknowledges the right of a defendant

to represent himself at trial as recognized in Faretta, but notes that the invocation of the

right to self-representation must be timely and unequivocal, and further stresses that,

unlike appellee, the defendant in Faretta made his request to represent himself “weeks

before trial.” See 422 U.S. at 835.

       The Commonwealth further stresses that the trial court has the discretion to grant

or deny a continuance; in exercising that discretion, the court must weigh the defendant’s

right to self-representation against the governmental interest in the efficient

administration of justice. See Randolph, 873 A.2d at 1281-82. See also Morris v.

Slappy, 461 U.S. 1, 11-12 (1983) (Circuit Court of Appeals granted federal habeas corpus

relief to state court prisoner on ground that state trial court’s denial of continuance to

defendant six days before trial in order to substitute newly appointed counsel violated

right to counsel; in reversing, Supreme Court observes: “broad discretion must be

granted trial courts on matters of continuances; only an unreasoning and arbitrary

‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the

right to the assistance of counsel.”).    The Commonwealth argues that here, where

appellee requested a continuance on the morning of trial, the court’s denial of that request

was well within its discretion, and the Superior Court’s reversal erroneously established a

new “presumption in favor of last-minute continuance requests to proceed pro se.”

Commonwealth’s Brief at 17. The Commonwealth further stresses that the Superior

Court’s new standard is not rooted in this Court’s rules or precedents, but rather is




                                      [J-76-2014] - 6
bottomed upon an outdated, non-binding decision from the U.S. Court of Appeals for the

Ninth Circuit.   See Armant v. Marquez, 772 F.2d 552 (9th Cir. 1985) (in certain

circumstances denial of continuance renders right to self-representation meaningless).

The Commonwealth adds that Armant does not even control in the Ninth Circuit any

longer. See, e.g., Kincaid v. Runnels, 450 F. Appx. 649, 650-51 (9th Cir. 2011) (no

violation of Sixth Amendment right to self-representation where trial court denied request

for continuance made six days before jury selection); U.S. v. Garrett, 179 F.3d 1143, 1145

(9th Cir. 1999) (finding no abuse of discretion and affirming trial court’s denial of

day-of-trial continuance request).

       The Commonwealth also argues that the Superior Court mistakenly determined

that the denial of a continuance interfered with appellee’s right to proceed pro se.

Indeed, the Commonwealth claims, appellee’s request to represent himself was

equivocal: it was employed as a bargaining tool, and notably, when the court denied the

continuance, appellee abandoned his attempt to represent himself. Commonwealth’s

Brief at 19-20 (citing Commonwealth v. Davido, 868 A.2d 431, 439-40 (Pa. 2005) for

proposition that defendant’s request to represent himself is deemed equivocal where

request was tied to request for new counsel, and where, when continuance was denied,

defendant clearly stated he did not wish to proceed pro se). Along these lines, the

Commonwealth adds, appellee’s asserted need to review his own statements reflected

in the transcript of the sentencing allocution in a related federal criminal matter5 did not

present a compelling reason for a continuance, and the trial court correctly recognized

5 Appellee was subject to federal firearms charges related to his illegal possession of a
handgun during the incident involved in this appeal, to which appellee pled guilty and for
which he was sentenced.



                                      [J-76-2014] - 7
appellee’s request as the “gambit for delay” that it was. Commonwealth’s Brief at 21,

citing Tr. Ct. Opinion at 7. And, adverting to the standard for assessing discretionary

decisions, the Commonwealth argues that it is clear that the trial court’s ruling was not

motivated by prejudice, bias or any other improper factor that would call into question its

discretionary judgment.     Id. at 22-23 & n.1 (citing, inter alia, Commonwealth v.

Sandusky, 77 A.3d 663, 672 (Pa. Super. 2013) (trial court’s explanation for denying

continuance “denotes a careful consideration of the matter” and “does not reflect a

myopic insistence upon expeditiousness in the face” of request; it was not arbitrary

denial) and U.S. v. Wright, 682 F.3d 1088, 1090 (8th Cir. 2012) (denial of last-minute

continuance request which created “Hobson’s choice between either proceeding with

appointed counsel or representing himself with no time to prepare” was predicament of

defendant’s own making)).

      Appellee responds that case law and the Pennsylvania Rules of Criminal

Procedure require that the trial court support a decision to deny a continuance. In

appellee’s view, the trial court’s explanation that appellee’s request came just before the

scheduled jury trial commenced, that counsel had represented appellee for almost a year,

and that counsel was well-prepared, is insufficient support for the denial. Appellee

argues that the trial court should have discussed the reasons appellee cited for his

dissatisfaction with his counsel, as well as a “discrepancy” respecting discovery materials

delivered to counsel before trial. 6    Appellee also agrees with the Superior Court’s

holdings that the trial court should have placed evidence supporting its decision to deny a



6 The discrepancy to which appellee refers concerns the length of a transcript from
appellee’s related federal criminal trial. See infra n.8.



                                       [J-76-2014] - 8
continuance on the record, and that in the absence of such further explanation, the trial

court’s ruling was insufficiently supported.

        Appellee relies on Pa. R. Crim. P. 106(C), which states, in part, that “the judge

shall on the record identify the moving party and the reasons for granting or denying the

continuance.” 7     Appellee further places heavy reliance on the panel decision in

Commonwealth v. Prysock, 972 A.2d 539 (Pa. Super. 2009), where, among other points,

the Superior Court observed that prior decisions noted that detailed factual findings by the

trial court to support its denial of a continuance are to be “commended,” and “in their


7   In relevant part, Rule 106 provides:

        Rule 106. Continuances in Summary and Court Cases

        (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.

                                           ****

        (C) When the matter is in the court of common pleas, the judge shall on the
        record identify the moving party and state of record the reasons for granting
        or denying the continuance. The judge also shall indicate on the record to
        which party the period of delay caused by the continuance shall be
        attributed and whether the time will be included in or excluded from the
        computation of the time within which trial must commence in accordance
        with Rule 600.

        (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.



                                       [J-76-2014] - 9
absence,” this Court had found an abuse of discretion. Id. at 544 (citing Commonwealth

v. Tyler, 360 A.2d 617 (Pa. 1976)); see also U.S. v. Welty, 674 F.2d 185, 188-89 (3d Cir.

1982) (where defendant requests new counsel or seeks to waive right to counsel on eve

of trial, court must engage in at least “minimal inquiry” to determine whether reasons for

request constitute good cause and are thus sufficiently substantial to justify continuance;

reversal warranted because district court made no inquiry “as to the reason for Welty's

dissatisfaction with his assigned counsel and little inquiry into whether Welty's decision to

proceed pro se was made knowingly and intelligently.”).

       Appellee asserts that the matter could be remanded to the trial court for a further

consideration of appellee’s request to represent himself; appellee further indicates that if

the matter is remanded, “cooler heads might prevail” and lead to some form of non-trial

final disposition. Appellee’s Brief at 17. But, his primary position is that the Superior

Court should be affirmed. In appellee’s view, the record does not support the trial court’s

decision because: 1) this was appellee’s first request for a continuance; 2) he indicated a

legitimate concern about his attorney, which was not resolved by the trial court; 3) no

prejudice or opposition was stated by the Commonwealth; 4) he could not have perceived

that his counsel was not doing enough for him until trial was approaching; 5) the period of

time from arraignment to the continued trial listing was approximately ten months, a

relatively short time for a serious crime; 6) the trial court did not inquire about how much

time he might need to prepare; and 7) he did not act in a disruptive fashion. Appellee

argues that these circumstances outweigh the trial court’s stated reasons for denying the

continuance.




                                      [J-76-2014] - 10
       In reply, the Commonwealth notes that Prysock and most of the other cases cited

by appellee are not binding on this Court, and, in any event, they are unpersuasive. The

Commonwealth argues instead that Commonwealth v. Novak, 150 A.2d 102 (Pa. 1959),

is apt. In that case, the defendant made a day-of-trial motion to change counsel. This

Court affirmed the trial court’s decision to deny the request, holding that requiring the

court to grant the request “would shackle, not promote, justice.”         Id. at 110.   The

Commonwealth also argues that there is no need for remand, where the record and the

trial court’s Rule 1925(a) opinion are sufficient for appellate review.

       Our review of the record reveals the following. The initial July 18, 2011 trial date

was continued for four weeks, until August 15. On August 16, the day set for jury

selection, appellee appeared in court with his appointed counsel and presented a waiver

of counsel document, about which the trial judge proceeded to colloquy appellee. When

asked whether he would proceed to trial with counsel in the absence of a continuance in

order to prepare to proceed pro se, appellee decided that he would not represent himself:

“I have to, I have no option but to. . . . what I want to do I can’t do.” N.T. 8/16/11, 4.

When the court requested confirmation that appellee was seeking “to have a delay in the

beginning of this trial so that you can prepare in your own estimation as a private attorney

to represent yourself,” appellee responded “Yes.” Id. at 5. The following exchange then

occurred:

       THE COURT: Q        You have already had well over a year as far as I know
       working with Mr. Taggart [appointed trial counsel] who has obtained a lot of
       evidence, a lot of discovery and has prepared for trial and you have
       prepared with him. So I am not going to give you a continuance or a delay
       at this point.

       [APPELLEE]: I understand that, that is why I said I have no option but to go
       with Mr. Taggart at this point in time.



                                      [J-76-2014] - 11
        THE COURT: All right, Mr. Taggart are you able and willing to step in and
        represent and have Mr. Brooks be your client?

        MR. TAGGART: I am ready to proceed as I always have been. We
        reviewed Rule 121 this morning. My only hesitation with proceeding is that
        he does have a right to represent himself. As I have said before, though, I
        am ready to proceed.


Id. at 6.

        The court then asked appellee several times more if he wanted to proceed with

counsel’s representation, and appellee stated each time that he had no option given that

he was not allowed a continuance to prepare to represent himself, and to have additional

access to the prison law library. On further questioning, counsel again advised that he

was ready to proceed, and added that appellee’s request to proceed pro se was “news” to

him, although appellee had told counsel that he had written to the court “several weeks”

earlier regarding his request. (The record, including the trial court’s opinion, contains no

indication that appellee had contacted the court prior to the day of trial regarding his

purported desire to proceed pro se.) The court reiterated that the case had been on the

trial list and counsel reiterated his preparedness. Id. at 8-9.

        The court again asked appellee if he was ready to proceed with counsel, and the

following exchange took place:

        [APPELLEE]: If Mr. Taggart has prepared my case to a fine degree how
        come we have never had a conference pertaining to (inaudible) what is
        going to be - asked of the witnesses or anything of - that nature?

        THE COURT: Mr. Taggart have you talked these things over with your
        client?

        MR. TAGGART: Your Honor [appellee] and I have discussed what I believe
        the evidence in the case will be, who I believe some of the witnesses will be,
        what I believe those witnesses will have to testify to. And what my



                                      [J-76-2014] - 12
responses or my questions to those people will be. We have talked in that
sense all aspects of what I expect the Commonwealth to represent and how
I expect to respond to it. And we have spoken about that several times.

THE COURT: Have you spoken with him about any possible defense that
he might have?

MR. TAGGART: Yes.

THE COURT: Does he have any witnesses that he wants to call?

MR. TAGGART: No.

THE COURT: All right you are going to proceed with Mr. Taggart as your
attorney.

MR. TAGGART: Your Honor may I place a couple of comments on the
record before we go on?

THE COURT: Sure.

MR. TAGGART: Your Honor [appellee] as you know expressed to me on
Friday and to the Court earlier that he wished to proceed in this case
representing himself.       Friday was the first I heard about that.
Commonwealth versus [El] which is at 977 A.2d [1158,] it is a Pennsylvania
Supreme Court case from 2009, says that a criminal Defendant has the
right to represent himself and that he has a right -- in a jury trial he has a
right to make that pronouncement up until the time where meaningful
proceedings have taken place in the case. The case describes meaningful
proceedings as the selection of a jury. We are not at that point yet. As I
said, this morning we went through the Rule 121 colloquy on the record.
[Appellee] had as I understand it two concerns today. First he wanted to
represent himself. Second, this morning he was presented by me with at
least 140 pages of transcripts from Federal Court which he had not had a
chance to read. I only read them myself on Sunday, received them on
Friday. As I said he had two concerns. One was that he wanted to be
able to represent himself and two, he wanted to have ample opportunity to
prepare to represent himself. He continues to express that desire today
and it seems to me he is only going ahead because he is not being afforded
the opportunity to prepare.

THE COURT: All right. What about the materials that were handed over to
you?

MR. TAGGART: I gave them to him this morning.




                              [J-76-2014] - 13
       THE COURT: And Mr. Dugan [the trial prosecutor] did you narrow down the
       scope of what you intended to present to the jury?

       MR. DUGAN: I did, Your Honor, it was basically a transcript of the allocution
       that [appellee]....

       THE COURT: Right it was composed of [appellee]'s own words in Federal
       Court?

       MR. DUGAN: It was about seven pages. The Assistant United States
       Attorney as well as [appellee].

       THE COURT: Okay, all right, we are going to proceed. Mr. Taggart you
       are going to represent [appellee].
Id. at 10-14.8

       In light of this record, and mindful that our review is cabined by an abuse of

discretion standard, we find that the Superior Court erred in reversing the trial court. Just

as a criminal defendant has a constitutional right to counsel, so too does the defendant

have “a long-recognized constitutional right to dispense with counsel and to defend

himself before the court.” Commonwealth v. Starr, 664 A.2d 1326, 1334 (Pa. 1995),

citing Faretta v. California, 422 U.S. at 821. The right to self-representation, however, is

not absolute.     See Commonwealth v. Staton, 12 A.3d 277, 282 (Pa. 2010);

Commonwealth v. Jermyn, 709 A.2d 849, 863 (Pa. 1998). Thus, to exercise this right,

the defendant must demonstrate that he knowingly, voluntarily and intelligently waives his

right to counsel. Starr, 664 A.2d at 1335. Moreover, the U.S. Supreme Court has held

8 There is a discrepancy between defense counsel’s account of the length of the
referenced federal transcript (140 pages) and that of the Commonwealth (7 pages). The
certified record contains a single transcript from federal proceedings, dated January 26,
2009, in the case of United States v. Brooks, which arose out of federal firearms charges
related to appellee’s illegal possession of a handgun during the incident involved in this
appeal, to which appellee pled guilty and for which he was sentenced. That transcript is
45 pages, consisting of the District Court’s guilty plea colloquy and appellee’s guilty plea.
There is no 140-page transcript containing appellee’s allocution prior to federal
sentencing in the certified record. As our explication below will make clear, the details
regarding such a transcript are not material to our determination in this appeal.



                                      [J-76-2014] - 14
that the States do not infringe the right to self-representation by insisting upon

representation by counsel for those who are competent enough to stand trial but who still

suffer from severe mental illness to the point where they lack the mental capacity to

conduct trial proceedings by themselves. Indiana v. Edwards, 554 U.S. 164, 177-78

(2008).

       In addition, as we noted at the outset, this appeal is not simply about the right to

self-representation; it also involves the timing of such requests, and the trial court’s

authority to manage its docket and trial schedule. This Court has recognized that a

request to proceed pro se must be made in a timely fashion, and not for purposes of

delay, and the request must be clear and unequivocal. See Davido, 868 A.2d at 438-40

(although timely, made well before trial was scheduled to begin, defendant’s request to

proceed pro se was equivocal; defendant had asked for new counsel and stated that his

request to proceed pro se was his “only alternative” if new counsel was denied, but on first

day of trial defendant agreed to proceed with current counsel). Accord Staton, 12 A.3d

at 283 (discussing timeliness in context of asserted right to self-representation on appeal;

noting that request for self-representation occurred after substantial delay, and as

appointed counsel was prepared to file timely appellate brief); Jermyn, 709 A.2d at 863

(discussing timeliness in context of request for self-representation for purposes of penalty

phase of capital trial; noting that courts have refused continuances based on need to

minimize disruptions, avoid inconvenience and delay, maintain continuity, and avoid

confusing jury). Obviously, defendants should not be permitted to unreasonably “clog

the machinery of justice” or hamper and delay the effort to administer justice effectively.

McAleer, 748 A.2d at 674, quoting from Commonwealth v. Baines, 389 A.2d 68, 70 (Pa.

1978). This Court has also noted that if a request to proceed pro se is “employed as a




                                     [J-76-2014] - 15
bargaining device rather than as a clear demand for self representation,” its denial is not

an abuse of discretion. Davido, 868 A.2d at 440.

       Appellee argues that there were unresolved issues between himself and counsel

that underlay his request to proceed pro se, apparently referring to his statement in the

transcript that he had not had a “conference” with counsel to discuss witnesses. But, as

our summary of the notes of testimony above reveals, the court had the benefit of specific

reassurances from trial counsel on that very subject. Counsel represented that he had

discussed such matters related to his representation with appellee, and after questioning

counsel, the court determined that counsel indeed was well-prepared; counsel, an officer

of the court, in fact pronounced himself “extraordinarily well prepared.” N.T. at 8. In this

regard, Morris v. Slappy, supra, involving the right to counsel and a continuance request,

is instructive. In Morris, the U.S. Supreme Court decided that a state trial court did not

abuse its discretion when it denied a continuance requested by the defendant, on the

third day of trial, so that he might be represented by a different lawyer, despite the fact

that his current trial counsel represented that he was prepared, and did not require

additional time. “In the face of the unequivocal and uncontradicted statement by a

responsible officer of the court that he was fully prepared and ‘ready’ for trial, it was far

from an abuse of discretion to deny a continuance. On this record, it would have been

remarkable had the trial court not accepted counsel’s assurances.” 461 U.S. at 12. The

High Court added that “[n]ot every restriction on counsel’s time or opportunity to

investigate or to consult with his client or otherwise to prepare for trial violates a

defendant’s Sixth Amendment right to counsel.” Id. at 11.

       Appellee also argues that he did not have sufficient time to review the transcript of

his own allocution prior to sentencing in his federal firearms possession case, the

transcript of which had apparently been provided by the federal court only just before the




                                      [J-76-2014] - 16
rescheduled trial date below. The trial court also engaged this particular point, ultimately

dismissing the necessity to review the federal transcript as a ground for a continuance so

that appellee could represent himself.        The court noted that the transcript merely

memorialized appellee’s own words and therefore any delay in securing the transcript

from that proceeding did not justify a further delay in the state court proceedings set to

begin. Moreover, appellee’s counsel told the court that he had an opportunity to review

the transcript, and in fact did so before appearing in court for trial, and was ready to try the

case. N.T. at 13.

       The Superior Court’s decision in Sandusky, 77 A.3d 663, which is cited by the

Commonwealth, is also instructive. In that case, the trial court’s decision to deny a

counseled request for continuance (there was no issue involving self-representation) was

upheld on appeal despite the appellant’s claim that he had insufficient time to review

voluminous discovery from the Commonwealth – 9450 pages of documentation, 674

pages of grand jury transcripts, and 2140 pages from subpoenas duces tecum. Id. at

672. In its opinion, the trial court stated that “the defense team was assuredly capable”

of reviewing the discovery, and furthermore, that “the reality of our system of justice is that

no date for trial is ever perfect, but some dates are better than others. . . . on balance and

considering all the interests involved — the defendant's right to a fair trial, the alleged

victims' right [to] their day in court, the Commonwealth's obligation to prosecute promptly,

and the public's expectation that justice will be timely done — no date will necessarily

present a better alternative.” Id. The Sandusky court concluded that the trial court’s

explanation “denote[d] a careful consideration of the matter,” rather than a “myopic

insistence on expeditiousness,” and that the trial court had not abused its discretion or

acted arbitrarily in denying the continuance. Id. See also Randolph, 873 A.2d at 1282

(no abuse of discretion in denial of continuance where defendant waited until two




                                       [J-76-2014] - 17
business days before start of trial to apprise court of desire to have private counsel; trial

court properly weighed defendant’s right to counsel of his choice against state’s interest

in efficient administration of justice); Commonwealth v. Robinson, 364 A.2d 665, 672-76

(Pa. 1976) (after two continuances and fair opportunity to obtain private counsel, and

where retained private counsel failed to meet with defendant or appear for trial, no abuse

of discretion in denying additional continuance and allowing trial to proceed with

appointed counsel who was prepared to go forward); Commonwealth v. Novak, 150 A.2d

at 110 (defendant’s right to choose counsel must be exercised in reasonable time and

manner; defendant had two years in which to procure counsel to his liking and would not

be permitted to wait until very day of trial to choose new counsel).

       Nor does the Superior Court’s decision in Prysock, repeatedly cited by appellee,

support a finding that the trial court abused its discretion here. In Prysock, the panel

noted that a trial judge, when faced with a defendant’s day-of-trial request for a

continuance to obtain new counsel, should conduct an “extensive inquiry” into the

underlying causes of the defendant’s expressed dissatisfaction with his counsel, and

whether the two had “irreconcilable differences.” 972 A.2d at 543. The panel further

determined that the trial record did not establish “that any of the factors which we rely on

in ascertaining whether the swift administration of justice would be vitiated by granting the

continuance were present.” Id. at 544. For example, the panel noted that counsel was

not appointed until thirty days before the originally scheduled trial date, and that there was

nothing in the record to show that the defendant was ever “personally warned that he

needed to retain [private] counsel by a specific date or that no further continuances would

be granted after the trial was initially continued.” Id. Moreover, the panel opined that

because the defendant was incarcerated, it was difficult for him to secure private counsel,

and it was thus “apparent that [the defendant] was not attempting to unreasonably delay




                                      [J-76-2014] - 18
the trial proceedings by claiming that he was going to retain private counsel when he had

no means or intention of doing so.” Id. The panel further faulted the trial court for not

inquiring into the nature of the asserted dispute between the defendant and his appointed

counsel, or how lengthy a continuance was required, and the panel also noted that the

Commonwealth had not objected to a continuance. The panel concluded that “while a

jury had already been partially chosen when retained counsel attempted to enter his

appearance, that fact is not dispositive.” Id. at 545. Because the record established

that the defendant’s “difficulties with appointed counsel pervaded every aspect of the

trial,” the Superior Court held that the trial court had abused its discretion when it denied a

continuance. Id.

       Even assuming that Prysock was correctly decided – an issue we need not, and do

not, pass upon – that case is distinguishable. First, nothing in the record here shows that

appellee had “irreconcilable differences” with his appointed counsel, or received less than

competent representation. Rather, appellee claimed that his counsel had not met with

him to discuss the case to his satisfaction. The trial court inquired into that very point.

In fact, the record shows that counsel had discussed the case with appellee, and the trial

court concluded that counsel was well-prepared; there was no indication that any alleged

ongoing differences between appellee and appointed counsel would “pervade” the trial

here as they did in Prysock.

       In addition, although appellee argues – as did the defendant in Prysock – that the

Commonwealth presented no opposition to the requested continuance, and that the trial

court did not inquire into how much time appellee would need to prepare to represent

himself, these points do not prove an abuse of discretion. The trial court is authorized to

manage its own trial schedule; the silence of the Commonwealth, or even the agreement

of the Commonwealth, does not control a judge’s exercise of discretion in such matters;




                                      [J-76-2014] - 19
and, in this case, the lawyers for both sides were ready to proceed to trial on this already

continued trial date. Moreover, there is some force to the Commonwealth’s argument on

appeal that the burden is upon the party requesting a continuance to support that request;

the trial court does not have an obligation to assume that the request must be granted,

and then probe the party (here, a defendant represented by counsel) for support for the

request, or to find weaknesses in the request. This is particularly so if the trial court –

which has the advantage of familiarity with the case and its history, and of observing in

person the defendant requesting a continuance to represent himself – believes that

further delay is the real reason for a day-of-trial request to represent oneself, a motivation

the defendant is unlikely to simply admit. That the trial court should not bear this burden

is even more so the case where, as commonly occurs and occurred here, the request to

self-represent is tied to an expression of dissatisfaction with appointed counsel.

       In any event, the record in this case reveals that the trial court did more than simply

deny the request for a continuance. The court was aware of the circumstances

surrounding appellee’s request; the court’s colloquy of appellee, and its exchanges with

counsel, properly informed its exercise of discretion. Cf. Commonwealth v. El, 977 A.2d

1158, 1166 (Pa. 2009) (inquiry into defendant’s mid-trial request to proceed pro se was

not necessary before court denied continuance; court able to rule on request because it

had observed defendant with his counsel, was familiar with counsel's representation, and

defendant had never expressed any dissatisfaction with counsel).

       Furthermore, notwithstanding the Prysock court’s determination that the fact that

the defendant’s request for a continuance there was made after a jury “had already been

partially chosen” was “not dispositive,” 972 A.2d at 545, this Court has repeatedly held

that the timing of requests relating to self-representation is an important factor in

considering whether a trial court abused its discretion in denying the request. See, e.g.,




                                      [J-76-2014] - 20
Davido, supra; McAleer, supra; Jermyn, supra. See also El, 977 A.2d at 1165 (request

to take on one's own legal representation after meaningful trial proceedings have begun

does not trigger automatic constitutional right to proceed pro se; decision instead is left to

sound discretion of trial court).    Accord Staton, supra.       Although the continuance

request here preceded jury selection, it is notable that it was not timely under Criminal

Rule 106(D), which specifically provides that 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(D). Thus, the timing of a request, combined with

other circumstances, may support an experienced trial judge’s determination that a

request for a continuance was made for purposes of delay.

       We are similarly unpersuaded by appellee’s argument that the “relatively short”

period of time from his preliminary hearing and arraignment to trial -- approximately

eleven months, beginning with the preliminary hearing in September 2010 and ending

with the continued trial date in August 2011 – shows that the trial court abused its

discretion. Appellee’s Brief at 23. Even if it is assumed that this was a “relatively short”

period in light of the nature of the crimes charged, appellee in that time had been

represented by the same appointed counsel, who had discussed the case with appellee,

and who had become “extraordinarily well prepared” to try the matter on the day set aside

by the court, the defense and the Commonwealth for trial.            Respecting appellee’s

assertion that he “never acted in a disruptive fashion,” it is true that disruptive behavior

might affect a trial judge’s exercise of discretion, but the lateness of a continuance

request itself can be disruptive, as is recognized by the restriction in Rule 106(D); the




                                      [J-76-2014] - 21
defendant’s conduct need not be contumacious for a request to be disruptive and the

absence of such behavior does not warrant granting an eleventh-hour continuance.

       Finally, appellee notes that this was his first request for a continuance, but even if

that were true, it would not mandate granting the request under the totality of the

circumstances here. In any event, the record does not support appellee’s claim that this

was his only request for a continuance; the record is at best ambiguous in this regard.

The Superior Court stated that “of the six continuance motions, three suggested that

Brooks was not even in the courtroom, as in the place of [appellee’s] signature is written

‘ATTY WILL NOTIFY DEF.’” 66 A.3d at 358. But, the fact that appellee may not have

been in the courtroom at the time of a continuance request does not necessarily mean

that one or more of the requests was not made by his counsel. The Superior Court

further indicated that part of the delay was due to the parties waiting for the arrival of

federal transcripts, but as we have noted, defense counsel reviewed those transcripts in

advance of trial and was not hampered in his preparation by their relatively late arrival.

       Considering the totality of these circumstances, we cannot say that the trial court

abused its discretion in determining that appellee’s day-of-trial request for a continuance,

so that he could represent himself, should be denied, and the Superior Court erred in

concluding otherwise. It is clear that the Superior Court would have ruled differently than

the trial court here, and perhaps members of this Court would have, too; but that does not

establish an abuse of discretion. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007). Moreover, although there certainly is something to be said for more thorough trial

court explanations of the grounds for a decision – a practice that can obviate appeals and

narrow issues on appeal, and that creates a better record for review -- the Superior

Court’s approach was problematic to the extent it could be read as: creating a

presumption that a last-minute continuance request to proceed pro se should be granted,




                                     [J-76-2014] - 22
and to the extent that the decision appears to assign a burden upon the trial court to place

“sufficient evidence” of “compelling reasons” on the record to support a conclusion that a

defendant seeking a continuance in order to represent himself was engaged in an attempt

to delay the proceedings. 66 A.3d at 359. Even if not an optimum expression, the

record and the circumstances here, as we have described them above, are sufficient to

make clear that the trial court’s denial of the continuance request was not an abuse of

discretion.

       Accordingly, we vacate the order of the Superior Court and remand to that court for

consideration of appellee’s remaining appellate issues. Jurisdiction is relinquished.


       Former Justice McCaffery did not participate in the decision of this case.



       Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice

Stevens join the opinion.




                                     [J-76-2014] - 23
