J-S26045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 MARCUS D. BROOKING                        :
                                           :
                    Appellant              :   No. 3172 EDA 2017

                Appeal from the PCRA Order August 24, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012983-2013


BEFORE:    BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 03, 2018

      While present in open court on another case, and with full knowledge of

a looming Rule 907 dismissal date in Appellant’s PCRA matter, present counsel

accepted an appointment as replacement counsel to represent Appellant in

filing a response to both prior counsel’s Turner/Finley letter and the court’s

notice of dismissal.   Counsel never filed a response, however, but only a

motion for continuance, which the PCRA court denied.

      The learned majority reasons that replacement PCRA counsel was

entitled to a continuance because it was his first request and he filed it prior

to the announced dismissal date. The majority cites no case law that a first

request for a continuance is automatic. Indeed, such a policy completely

eviscerates the discretion of the trial judge, who is familiar with the facts and

circumstances of the individual case.



____________________________________
* Former Justice specially assigned to the Superior Court.
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      I respectfully disagree with the majority, as our standard of review

requires a greater showing from counsel that there was an abuse of discretion

by the lower court before we may upset its denial of a motion to continue:

      “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.”          Commonwealth v.
      Boxley, 596 Pa. 620, 948 A.2d 742, 746 (2008) (citing
      Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277,
      1281 (2005)). “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[.]” Id. (internal quotation
      marks omitted). Moreover, “[a] bald allegation of an insufficient
      amount of time to prepare will not provide a basis for reversal of
      the denial of a continuance motion.” Commonwealth v. Ross,
      57 A.3d 85, 91 (Pa.Super. 2012) (citing Commonwealth v. Ah
      Thank Lee, 389 Pa.Super. 201, 566 A.2d 1205, 1206 (1989)).
      “An appellant must be able to show specifically in what manner he
      was unable to prepare for his defense or how he would have
      prepared differently had he been given more time. We will not
      reverse a denial of a motion for continuance in the absence of
      prejudice.” Id. (quoting Commonwealth v. Brown, 351
      Pa.Super. 119, 505 A.2d 295, 298 (1986)).

Commonwealth v. Antidormi, 84 A.3d 736, 745–46 (Pa.Super. 2014). In

effect, the majority is usurping the role of the PCRA judge and enabling

counsel's failure to act in a timely manner.

      Counsel claims the PCRA court gave him inadequate time to prepare a

response to Attorney Baraldi’s no-merit letter and the court’s Rule 907 Notice.

He fails, however, to plead and prove with any specificity that there was a

reasonable probability a continuance would have enabled him to present a

case of ineffective assistance of prior counsel occurring at earlier stages of



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Appellant’s case. Instead, he relies on mere supposition to conclude that a

meritorious case of ineffectiveness simply depended on the allowance of more

time to prepare.

      Given this Court’s prior determination that Appellant’s guilty plea was

constitutionally sound, more is needed from counsel than a statement devoid

of any explanation of what was necessary to avoid Rule 907 dismissal. Indeed,

counsel fails to demonstrate why he needed more time than the seven weeks

the court gave him after he chose to accept the appointment on July 13, 2017,

in open court, knowing there was a pending Rule 907 notice and an ultimate

dismissal date of August 24.

     The record in the present matter is not particularly large, nor is there

any indication the matter involves complexities atypical of a guilty plea to

third-degree murder, followed by a direct appeal.     Ultimately, Appellant’s

underlying claim states that guilty plea counsel should be brought to an

evidentiary hearing and asked about the advice he gave to Appellant on the

day of his plea. Seven weeks is ample time for PCRA counsel to have prepared

an argument in support of such a claim and submitted it for the PCRA court’s

consideration.

     Counsel is presumed to have known the state of his caseload and

whether he was in a position to accept appointment to the present case, which

was already at a critical stage. Yet, counsel inexplicably allowed one month

to pass before asking the court for a continuance, knowing less than two

weeks remained before the Rule 907 dismissal date.

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      Under such facts, and without any specific explanation from counsel as

to why more time was necessary to prepare an argument against dismissal, I

find no error with the court’s decision to deny counsel’s motion to continue.

Accordingly, I would affirm.




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