J-S34042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellant

                       v.

BRIGID M. EPHAULT,

                             Appellee                 No. 3248 EDA 2016


                     Appeal from the Order October 7, 2016
                in the Court of Common Pleas of Monroe County
               Criminal Division at No.: CP-45-CR-0002361-2015

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 26, 2017

        The Commonwealth appeals from the trial court’s order denying its

third motion for a continuance.1 We affirm.

        We take the following procedural and factual history of this case from

the trial court’s December 12, 2016 opinion and our independent review of

the certified record.       On August 23, 2015, Trooper Michael Thomas of the



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*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth purports to appeal from the trial court’s October 14,
2016 order denying its motion for reconsideration. (See Notice of Appeal,
10/20/16). However, an appeal does not lie from the denial of a motion for
reconsideration. See Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.
Super. 2000) (“[W]e have consistently held that an appeal from an order
denying reconsideration is improper . . . .) (citation omitted). We have
changed the caption accordingly.
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Pennsylvania State Police arrested Appellee, Brigid M. Ephault, for driving

under the influence and related charges.

       On January 27, 2016, the Commonwealth filed a motion for a bench

trial, which the trial court granted on January 29, 2016, scheduling the trial

for March 29, 2016.         On March 24, 2016, Appellee filed a motion for a

continuance because of defense counsel’s unavailability.       The trial court

granted the motion and rescheduled the trial to May 31, 2016. On May 31,

2016, the Commonwealth moved for a continuance, which the trial court

granted, continuing trial until June 23, 2016.       On June 17, 2016, the

Commonwealth filed its second continuance request, on the basis of the

unavailability of affiant Trooper Thomas and the forensic toxicologist expert.2

The Commonwealth requested that trial be rescheduled to October 25, 2016.

(See Motion to Continue, 6/17/16, at unnumbered page 1 ¶ 5). The trial

court granted the Commonwealth’s continuance request and rescheduled

trial for October 25, 2016. On October 4, 2016, the Commonwealth filed its

third continuance request, based on Trooper Thomas’ unavailability because

of a pre-paid vacation. (See Motion for Continuance, 10/04/16, at 1 ¶ 3).
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2
   Since that time, the Commonwealth decided against introducing the
testimony of its forensic toxicologist, based on the United States Supreme
Court’s holding in Birchfield v. North Dakota, 136 S.Ct. 2160, 2185-86
(2016) (holding the Fourth Amendment does not permit warrantless blood
tests incident to arrests for drunk driving and that a state may not
criminalize a motorist’s refusal to comply with a demand to submit to blood
testing). (See Commonwealth’s Brief, at 7).




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On October 7, 2016, the trial court denied the motion and, on October 14,

2016, it denied the Commonwealth’s subsequent request for reconsideration.

The Commonwealth timely appealed.3, 4

       The Commonwealth raises one issue for this Court’s review: “Did the

trial court err by denying . . . the [] October 4, 2016 motion to continue,

where the Commonwealth indicated that the affiant and only witness would

be unavailable for the October 25, 2016 trial date[?]”         (Commonwealth’s

Brief, at 5) (unnecessary capitalization omitted).

       Our standard of review of this issue is well-settled:

             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 that discretion. [A]n abuse of
       discretion is not merely an error of judgment. Rather, discretion
       is abused when the law is over-ridden or misapplied, or the
       result of partiality, prejudice, bias, or ill-will as shown by the
       evidence or the record.         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. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011), appeal

denied, 32 A.3d 1275 (Pa. 2011) (citation omitted). Further, “[i]n reviewing

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3
  The Commonwealth has certified that the trial court’s order terminates or
substantially handicaps its prosecution of Appellee. (See Statement in
Compliance with Pa.R.A.P. 311(d), 10/14/16); see also Pa.R.A.P. 311(d).
4
  On November 17, 2016, the Commonwealth filed a statement of errors
complained of on appeal pursuant to the court’s order. See Pa.R.A.P.
1925(b). The trial court filed an opinion on December 12, 2016. See
Pa.R.A.P. 1925(a).



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a denial of a continuance, the appellate court must have regard for the

orderly administration of justice[.]” Id. (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[.] . . .

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

and quotation marks omitted).

      In this case, the Commonwealth maintains that it did not discover that

Trooper Thomas would be unavailable for the October 25, 2016 trial until it

received his phone call advising them that he was scheduled to attend his

brother’s wedding in Hawaii at that time. (See Commonwealth’s Brief, at 8).

Therefore, the Commonwealth argues that, “because [it] represented to the

court that the unavailable witness was the Commonwealth’s sole witness for

trial, the trial court erred in denying the [] request to continue the bench

trial.” (Id. at 9) (unnecessary capitalization omitted). We disagree.

           When deciding a motion for a continuance to secure a
      material witness the trial court is guided by the following factors:

         (1) the necessity of the witness to strengthen the
         [party’s] case; (2) the essentiality of the witness to [the
         party’s case]; (3) the diligence exercised to procure [the
         witness’] presence at trial; (4) the facts to which [the
         witness] could testify; and (5) the likelihood that [the
         witness] could be produced at the next term of court.


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Norton, supra at 143-44 (citation omitted).

       Here, the trial court denied the Commonwealth’s continuance request

based on its determination that the Commonwealth failed to exercise due

diligence. Specifically, the trial court observed:

              In this case, just prior to the commencement of trial,
       counsel for the Commonwealth requested their [first]
       continuance of trial due to the unavailability of their affiant and
       expert witness.       The Commonwealth’s second motion for
       continuance specifically requested trial be rescheduled to
       October 25, 2016.        Prior to granting the Commonwealth’s
       motion[,] the court contacted both parties to verify October 25,
       2016     would    be    acceptable    and,    absent    unforeseen
       circumstances, no further continuances would be granted. [The
       Commonwealth’s counsel] informed the court that she had
       spoken with the affiant and expert witness and October 25, 2016
       was acceptable.[5]      However, on October [4], 2016, [the
       Commonwealth] again filed a motion for continuance citing the
       affiant is unavailable due to a pre-paid vacation. We find this
       fact troubling as the Commonwealth . . . was the party who had
       requested the October 25, 2016 trial date and informed the
       court [it] had confirmed this date with the Commonwealth’s
       witnesses.     Thus, we are left with two equally concerning
       possibilities: (1) [the Commonwealth] [misled] the court and
       never actually verified the trial date with [its] witnesses; or (2)
       the Commonwealth’s affiant, after the date for trial was set,
       disregarded a court order and scheduled a vacation.
       Accordingly, we denied the Commonwealth’s third motion for a
       continuance.

             Granting a continuance of the case on the eve of trial
       would have again delayed the trial of this case for many months.
       [The trial court] did not find this acceptable, especially in light of
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5
  There is no evidence of the trial court’s conversations with the
Commonwealth’s counsel in the certified record.            However, the
Commonwealth also represents that it spoke with the affiant to confirm his
availability on October 25, 2016, before it requested that date. (See
Commonwealth’s Brief, at 7).



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      the fact that the case was previously continued three times from
      the March 2016 to the October 2016 trial term. Moreover, the
      order continuing trial to the October trial term was issued on
      June 21, 2016, which allowed the Commonwealth more than
      four months in which to discover the issue and move for a
      continuance. However, the issue was not discovered until the
      trial term was set to begin. We suspect that this is because the
      Commonwealth had never actually contacted its witnesses that
      trial had been continued to the October trial term like[] they
      claimed to have done and that its failure to do so was the reason
      for their continuance request. Neither the Commonwealth’s
      failure to stay in contact with its witnesses, nor the unavailability
      of its witnesses renders our denial of the Commonwealth’s
      motion for continuance erroneous, despite its effect on the
      prosecution, particularly in light of the lengthy delay that such a
      continuance would have caused.

(Trial Court Opinion, 12/12/16, at unnumbered pages 5-7) (unnecessary

capitalization omitted).

      We conclude that the trial court did not abuse its discretion. On May

31, 2016, the day scheduled for trial, the Commonwealth requested a

continuance due to the unavailability of a witness.         In June 2016, the

Commonwealth filed a second continuance request, this time for a specific

date for which it had confirmed the affiant’s availability. Approximately four

months later, on the eve of trial, the Commonwealth made its third

continuance request based on the affiant’s sudden unavailability due to a

prepaid vacation.

      In light of our deferential standard of review, we conclude that the

court did not “exceed[] the bounds of its discretion” or demonstrate

“prejudice or a palpable and manifest abuse of discretion” when it denied the

Commonwealth’s third continuance request. Norton, supra at 143 (citation

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omitted); Hansley, supra at 418 (citation omitted). The Commonwealth’s

issue lacks merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017




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