J-S13001-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                                        :
         v.                             :
                                        :
                                        :
NORMAN BLACKWELL,                       :
                                        :
                Appellant               : No. 729 WDA 2017

           Appeal from the Judgment of Sentence March 27, 2017
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0007623-2015

BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
                                         FILED MAY 22, 2019

      I agree with the Majority that Appellant is not entitled to relief on his

first claim. However, because I find that the trial court abused its discretion

in denying Appellant’s motion to continue, I would vacate the judgment of

sentence and remand for resentencing. Accordingly, I respectfully dissent.

      As noted by the Majority, after a bench trial, Appellant was found

guilty on all counts on December 20, 2016; the trial court deferred

sentencing until March 27, 2017 so that a presentence investigation report

could be prepared.     One week before sentencing, on March 20, 2017,

Appellant obtained new counsel, Thomas Farrell, Esquire.            That day,

Attorney Farrell entered his appearance on Appellant’s behalf, and Appellant

requested a continuance of the sentencing hearing.        Appellant sought a

continuance to allow Attorney Farrell time to prepare and because Attorney


* Retired Senior Judge appointed to the Superior Court.
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Farrell had a scheduling conflict.       Motion for Continuance, 3/20/2017.

Notably,   this   was   Appellant’s   first   motion   to   continue,   and   the

Commonwealth consented to the continuance. The trial court did not act on

the motion prior to the date of the sentencing hearing.        When the parties

appeared for sentencing on March 27, 2017, the trial court denied the

motion from the bench. After the court admonished the prosecutor for being

late, the following exchange occurred between the trial court and Attorney

Farrell.

            MR. FARRELL: Good morning, Your Honor, Thomas N.
      Farrell on behalf of [Appellant].

            THE COURT: In fact, [Appellant] was the only one here
      this morning. Neither the prosecutor or the defense lawyer
      showed up.

            MR. FARRELL: That is true, Your Honor, and I apologize. I
      did send someone from my staff. Obviously, that was not me,
      but I apologize. I was running a little late today in terms of I
      had a case, not as important as Your Honor’s case ever, but it
      was --

            THE COURT: In front of which Judge was that case?

            MR. FARRELL: Well, it ended up being in front of Judge
      Flaherty, Your Honor.

            THE COURT: So I should call Judge Flaherty and tell him
      his case wasn’t as important as my case?

           MR. FARRELL:      Well, he would probably agree with you,
      Judge.

            THE COURT: Well, he got you first, didn’t he?

            MR. FARRELL: He did, Your Honor.


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           THE COURT: So it seems to me by your conduct you made
     him the priority?

           MR. FARRELL: That’s the way you could look at it but
     that’s not how I would look at it. I would look at it that I was
     supposed to be there at 8:00 this morning, and unfortunately,
     what happened was the courtroom was running slowly.            I
     apologize.

           THE COURT: Let’s get down to the meat of it.              You
     entered your appearance to try to postpone sentencing?

           MR. FARRELL: That’s correct, Your Honor.

           THE COURT: I’m not interested in that.

           MR. FARRELL: I understand that, Your Honor.

          THE COURT: If you want to try to talk me into it, go
     ahead, but I’m just telling you it’s not likely.

           MR. FARRELL: I realize that, Your Honor, and I appreciate
     you[r] listening to me. I put my Praecipe of Appearance in a
     while ago and I did put in a postponement a while ago and [the
     prosecutor] did not object to it.

           We did not get a ruling from the [trial court] and we
     understand that. However, during that period of time we have
     attempted to get the file so I could understand at least what was
     going on with this case. I did talk to my client briefly several
     times, but quite frankly, I need to look at the file, I need to look
     at what’s going on. I have no idea --

           THE COURT: Which file are you talking about?

           MR. FARRELL: The client’s file, Your Honor.

           THE COURT: From the other lawyer?

           MR. FARRELL: That’s correct, Your Honor.




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          THE COURT: So from February 19[1] until today you
     haven’t gotten that file?

           MR. FARRELL: No, Your Honor, I have not.

           THE COURT: The other lawyer is right in the next room,
     Mr. Urbano.[2]

           MR. FARRELL: Yes, Your Honor.

           THE COURT: I’m not postponing this case, Mr. Farrell.

           MR. FARRELL: I understand.

          THE COURT: I’m not postponing it. I don’t even want to
     go there. You couldn’t get the file from February 19 to March
     27?

           MR. FARRELL: No, I couldn’t.

           THE COURT: Let’s go get Mr. Urbano. He can do the
     sentencing then. I’m not postponing the sentencing. I’m not. I
     can’t even imagine.

           MR. FARRELL: Your, Honor, I’m asking specifically for a
     very short period of time.

           THE COURT: And I’m specifically denying your request.
     I’m not postponing this sentencing.

          MR. FARRELL: My client has terminated Mr. Urbano for a
     reason and I am the attorney and so --

          THE COURT:      Then be prepared to do a sentencing
     because we are doing it in about five minutes. I’ll give you five
     minutes. That’s it.



1 As noted infra, this date is incorrect; Appellant did not retain Attorney
Farrell until March 20, 2017.

2 Christopher Urbano, Esquire, served as Appellant’s pretrial and trial
counsel.

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           MR. FARRELL: Okay. Thank you, Your Honor.

N.T., 3/27/2017, at 3-7.   A recess was taken in the proceedings, but the

transcript of the notes of testimony does not indicate its length. Once the

proceedings resumed, Attorney Farrell addressed the trial court again

regarding his motion to continue.

           MR. FARRELL: Your Honor, I know you have already ruled
     on my motion. I just wanted to correct one thing. I’ve been his
     attorney for seven days now. Seven. March 20 th to 27th. I was
     not his attorney prior to that.

          THE COURT:       Didn’t the postponement have the date of
     February 19?

          MR. FARRELL:       That was the date of conviction, Your
     Honor.

           THE COURT: Let me see the Request for Postponement.

          MR. FARRELL: That would have given me enough time.
     My Praecipe of Appearance says that too, Your Honor.

           THE COURT: This says the date the complaint was filed.
     Right. That was the 20th day of March. Okay, you have been his
     lawyer for seven days. Okay.

          MR. FARRELL:        In light of that, Judge, would you
     reconsider?

           THE COURT: No. No.

           MR. FARRELL: Okay.

            THE COURT: Mr. Farrell, coming in at the last minute to
     try to delay the sentencing again, at some point it’s not going to
     happen.

Id. at 10-11.



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      In its Pa.R.A.P. 1925(a) opinion, the trial court explained its denial of

Appellant’s motion to continue as follows.

            Based on the fact that Mr. Urbano was still counsel of
      record and the motion for postponement was filed only one week
      before the sentencing hearing, the [trial court] did not act on it
      until March 27 201[7], since, among other things, [Appellant]
      would need to be present for the selection of a new sentencing
      date. Despite his claim of a scheduling conflict, Attorney Farrell
      appeared at the sentencing hearing and presented a witness on
      behalf of [Appellant]. Mr. Urbano did not attend the sentencing
      hearing. [Appellant] has not specified how, if at all, he was
      prejudiced by the denial of Attorney Farrell’s request for
      postponement such that an abuse of the [trial court’s] discretion
      occurred.

Trial Court Opinion, 7/10/2018, at 13.

      The grant or denial of a motion for a continuance is within the
      sound discretion of the trial court and will be reversed only upon
      a showing of an abuse of discretion. As we have consistently
      stated, an abuse of discretion is not merely an error of
      judgment. Rather, discretion is abused when the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will, as shown by the evidence or the record[.]

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

omitted).

      This Court has observed that [t]rial judges necessarily require a
      great deal of latitude in scheduling trials. Not the least of their
      problems is that of assembling the witnesses, lawyers, and
      jurors at the same place at the same time, and this burden
      counsels against continuances except for compelling reasons.
      However, the trial court exceeds the bounds of its discretion
      when it denies a continuance on the basis of an unreasonable
      and arbitrary insistence upon expeditiousness in the face of a
      justifiable request for delay[.] Accordingly, we must examine
      the reasons presented to the trial court for requesting the
      continuance, as well as the trial court’s reasons for denying the
      request.

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Id. (citations and quotation marks omitted).

      I agree with the Majority that the trial court erred when it denied

Appellant’s motion to continue the sentencing hearing.          Majority at 4.

However, the Majority determined that Appellant was not prejudiced by the

error, and thus concluded Appellant was not entitled to relief on this claim.

Id. at 5. The Majority found determinative Appellant’s failure to specify how

counsel would have prepared differently for sentencing had the continuance

been granted. Id.

      In reviewing the reasons offered by Appellant in the request, by his

counsel at the sentencing hearing, and by the trial court in denying the

motion, I find the trial court adhered arbitrarily to expeditiousness at the

expense of Appellant’s right to have his counsel adequately prepared for

sentencing.   Attorney Farrell made a justifiable request to continue given

that he had been retained for only seven days; the motion to continue was

filed on the same day Attorney Farrell entered his appearance; Appellant and

Attorney Farrell were unable to obtain the case file from prior counsel before

the sentencing hearing date; Attorney Farrell appeared at the sentencing

hearing despite a court scheduling conflict on his end; it was Appellant’s first

continuance request; and the Commonwealth consented to the continuance.

“Swift resolution of cases is, no doubt, the linchpin of judicial economy.

However, it is not an end in itself.” Rutyna v. Schweers, 177 A.3d 927,

937 (Pa. Super. 2018) (en banc).       As such, I find that the trial court’s

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insistence upon moving forward with the sentencing hearing date despite a

justifiable request for continuance is an abuse of discretion. Further, I am

not persuaded by the Majority’s reasoning that because Appellant did not

show how counsel would have prepared differently for sentencing, his claim

fails; the record was fixed at the time of sentencing, and thus, I do not see

how Appellant could possibly demonstrate prejudice on such a record.

     Accordingly, I would vacate the judgment of sentence and remand for

resentencing.




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