J-S13012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        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.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 21, 2019

        Larry J. Dean (Appellant) appeals from the judgment of sentence of an

aggregate term of 65 to 193 years’ incarceration following a jury trial at which

Appellant was found guilty of two counts of corrupt organizations, 18 Pa.C.S.

§ 911(b)(3); two counts of criminal conspiracy to engage in corrupt

organizations, 18 Pa.C.S. § 911(b)(4); sixteen counts of delivery of a

controlled substance, 35 P.S. § 780-113(a)(30); and two counts of possession

with intent to deliver a controlled substance, 35 P.S § 780-113(a)(30).

Appellant challenges the denial of two motions to continue.       After careful

review, we affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        Appellant was arrested on August 2, 2017, in connection with a

Pennsylvania State Police investigation that began in 2016 and involved the

shipment of methamphetamines from Arizona to Pennsylvania. Appellant was

one of many individuals arrested.           A preliminary hearing took place on

November 3, 2017, and all charges were held for court. The court scheduled

an omnibus pre-trial hearing for February 8, 2018.                Jury selection was

scheduled for March 2, 2018, and a five-day trial was to begin on March 19,

2018.

        At the center of this appeal are Appellant’s two motions to continue jury

selection.      On February 6, 2018, the first of these motions was filed,

requesting that Appellant’s attorney needed additional time to review the

“thousands of pages of discovery” already received plus the “additional

discovery yet to be received[.]”         Appellant’s brief at 6.    This motion also

claimed that the Commonwealth’s many witnesses had not been investigated

by the defense. This motion was denied on February 9, 2018. The second

motion to continue jury selection was filed on February 21, 2018, alleging that

Appellant “was evaluated by Louis S. Martone, M.D. and [Appellant’s] ability

to participate in his own defense cannot be definitively determined and that

[Appellant]     required   []   formal   neurological   medical    testing[.]”   Id.

Furthermore, the motion indicated that “additional medical records had to be

obtained.” Id. This motion was denied on February 21, 2018, the same day

it was filed.    The trial took place as scheduled and resulted in Appellant’s




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conviction on 21 of the 22 counts initially charged.1 Sentencing took place on

April 4, 2018, and the court imposed the term of incarceration noted supra.

        This appeal followed with Appellant raising the following single issue on

appeal:

        Did the court abuse it’s [sic] discretion by denying [Appellant’s]
        motions to continue the trial?

Appellant’s brief at 4.2

        Initially, we note the following:

              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. Brooks, 628 Pa. 524, 529-30, 104 A.3d 466
        (2014) (quotations marks, quotation, and 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.”
____________________________________________


1   One count charged under 35 P.S. § 780-113(a)(30) had been withdrawn.

2 In his concise statement of errors complained of on appeal, Appellant also
alleged error by the trial court “by requiring pretrial motions to be submitted
before the time allowed by rule[.]” See Appellant’s Concise Statement.
Appellant has abandoned this issue by failing to include it in his brief to this
Court.

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      Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super.
      2013) (quotation omitted). 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[.]” Id. at 672
      (quotation marks and quotation omitted). 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. See id.

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016).

      Appellant argues that the two motions requesting continuances were

reasonable in that the court’s order requiring pretrial motions to be filed within

14 days after arraignment and trial to begin two months thereafter did not

provide enough time for counsel to prepare in light of the Commonwealth’s

year-long investigation. In essence, Appellant contends that “the trial court

did not allow enough time for [Appellant] to review the discovery and conduct

his own investigation of the items seized and witnesses who would be called

to testify against him.” Appellant’s brief at 10. Moreover, Appellant asserts

that his requests were reasonable, but that the court’s orders denying the

motions did not provide reasons for the denials, except to state that not

denying the motions would have caused unjustifiable expense and delay

without further explanation. Appellant concludes his argument by stating that

“[t]he Commonwealth spent a year gathering information and preparing this

matter for trial and [Appellant] got less than two months to review the

discovery and prepare for his defense, all the while being evaluated by [a]

doctor to determine his ability to participate in his own defense.” Id. at 11.



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      In its opinion, the court noted that the initial request for a continuance

occurred more than a month before the scheduled trial. Thus, relative to the

first motion, the court determined that it was speculative that counsel “would

not have adequate time to prepare for trial thus [it] did not strike the [c]ourt

as ‘good cause’ for granting a continuance.”       Trial Court Opinion (TCO),

9/21/18, at 1. The court further stated:

      As for the second motion, [Appellant] sought additional time to
      establish whether he was competent to stand trial. Dr. Louis S.
      Martone evaluated him for that purpose and, finding the evidence
      to be inconclusive, recommended formal neurological medical
      testing.    [Appellant] requested a continuance so he could
      accomplish that[.] He renewed his motion immediately before
      jury selection, at which time the [c]ourt explained why it was not
      going to continue the trial for that speculative endeavor. Dr.
      Martone certainly could not say [Appellant] was incompetent, and
      during his pre-jury selection colloquy, [Appellant] all but
      disproved his own claim in that regard. Explaining his decision
      not to be present during voir dire, he stated that he became
      confused under pressure, not because of an underlying
      neurological disorder, but because he sometimes experienced
      loud ringing in his ears and headaches so severe that they affected
      his cognitive abilities. He thus confirmed, albeit inadvertently,
      that the circumstances which led his attorney to request a
      competency evaluation in the first place did not stem from the sort
      of psychological disorder that may render one unable to aid in his
      own defense.

      Also telling was the manner in which [Appellant] conducted
      himself at trial, where he repeatedly demonstrated that he
      understood what was happening, who the witnesses were and
      what they were saying, and, in at least one instance, what
      particular evidence his attorney could use to attempt to discredit
      them. Even throughout four very long and arduous days of trial,
      therefore, [Appellant] showed no signs of incompetency such that
      a continuance was necessary to allow for additional testing beyond
      Dr. Martone’s evaluation.



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         There being no basis to conclude that the [c]ourt’s denial of
         [Appellant’s] continuances meant either that he had insufficient
         time to prepare for trial or that it forced an incompetent man to
         stand trial, therefore, it was no[t] error to do so. Accordingly,
         neither of his issues warrants relief and the judgment of sentence
         should be affirmed.

TCO at 2 (citations to record omitted).

         Our review of the record reveals support for the court’s findings as to

the reasons it asserted for denying Appellant’s motions for continuances.

Particularly, the court’s determination that Appellant evidenced an ability to

aid in his own defense overcame the allegation that Appellant was not

competent to stand trial. Moreover, the court’s conclusion that Appellant’s

counsel’s request for more time to prepare was not supported by any

allegation that anything differently would have been done in preparation for

trial.   Appellant only suggests that the manner in which the case moved

forward prejudiced his right to a fair trial. The court’s conclusion that this

assertion was speculative at best is not belied by anything Appellant argues.

Accordingly, we conclude that the trial court did not abuse its discretion in

denying the two motions for continuances.

         Judgment of sentence affirmed.

         Judge Ott joins this memorandum.

         Judge Strassburger files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2019




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