J-A18029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

MICHAEL BERTIN

                            Appellee                 No. 1859 MDA 2014


                 Appeal from the Order Entered October 9, 2014
               In the Court of Common Pleas of Lycoming County
                       Criminal Division at No: 14-20, 424


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 17, 2015

       Appellant, the Commonwealth, appeals from the order of the Court of

Common Pleas of Lycoming County entered October 9, 2014.1                   The

Commonwealth argues the trial court abused its discretion in refusing a

continuance based on the absence of a witness.       The Commonwealth also

argues the trial court abused its discretion in dismissing the petitions giving

rise to the underlying actions. We affirm.

       The trial court summarized the relevant background as follows:

       A temporary Protection [f]rom Abuse [(PFA)] order was entered
       between Tineesha Harris (hereinafter Plaintiff) and Michael Bertin
       (hereinafter [Appellee]) on March 31, 2014. At the Plaintiff’s
       request on June 27, 2014 the [order] was amended to allow
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1
  The trial court’s October 8, 2014 order was entered on the docket on
October 9, 2014. The caption has been amended to reflect the date of entry
of the order.
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      contact between the parties regarding Plaintiff’s pregnancy and
      child care. At the time set for the PFA hearing, August 25, 2014,
      [Appellee failed to appear. Consequently, the trial court entered
      a final PFA order].

      Plaintiff filed two separate criminal complaints alleging [Appellee]
      had contacted her in violation of the [PFA] order. The first
      complaint was made July 18, 2014 and alleged text messages
      were received from [Appellee]. The second complaint was made
      September 9, 2014 and alleged [Appellee] had sent text
      messages to [Plaintiff]. Contained in the [a]ffidavit of [p]robable
      cause dated September 4, 2014 is the Plaintiff’s statement that
      the [Appellee] was out of the state and not expected back until
      the end of September.

      [Appellee] was arraigned on October 3, 2014. On October 3,
      2014, notice went to both the Commonwealth and [Appellee] as
      to the hearing scheduled for October 8, 2014. [Plaintiff] did not
      appear on October 8, 2014. [Appellee] and his counsel were
      present as well as a police officer present as a witness. At the
      time of hearing, no testimony was taken. Both the attorney for
      the Commonwealth and [Appellee]’s attorney made argument.
      The Commonwealth made argument as to their request for a
      continuance and outlined the efforts made by their office to
      secure the presence of [Plaintiff]. The Commonwealth sent a
      subpoena by mail to [Plaintiff] on October 6, 2014.          The
      Commonwealth also attempted to contact [Plaintiff] by a
      telephone number contained in the most recent police report,
      but were informed the number was incorrect.                   The
      Commonwealth did not attempt to contact [Plaintiff]’s attorney
      or pull the PFA file to obtain information on [Plaintiff].
      [Appellee]’s attorney objected to the continuance request and
      asked the [c]ourt to dismiss the charges. [Appellee]’s attorney
      cited the responsibility of the Commonwealth to bring forward
      witnesses and [its] responsibility to have used hand service to
      locate and properly serve [Plaintiff].

Trial Court Opinion, 1/5/15, at 2-4 (citations to record omitted).

      On appeal, the Commonwealth raised the following issues for our

review:




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      1. Did the trial court abuse its discretion in denying the
         Commonwealth’s continuance request at the time of the PFA
         contempt hearing, and dismissing the contempt petitions and
         denying the motion for reconsideration, when the victim failed
         to appear for the hearing, which had only been scheduled
         three business days prior, because she had not received
         notice of the hearing despite the Commonwealth’s reasonable
         efforts to notify her by mailing a subpoena and attempting to
         call her using the most recent phone number in its records?

      2. Did the trial court abuse its discretion in dismissing the PFA
         contempt petitions, and denying reconsideration, even if the
         Commonwealth’s efforts were unreasonable and even if the
         Commonwealth should have requested a continuance prior to
         the hearing, when the Commonwealth did not engage in
         willful misconduct and the remedy of dismissal was a sanction
         out of proportion to the violation, and where other sanctions
         that did not harm the public interest could have been imposed
         even if the Commonwealth’s conduct constituted willful
         misconduct?

Appellant’s Brief at 7.

      Regarding the first claim, our Supreme Court summarized the

controlling standard as follows:

      We have said that the considerations which underlie the exercise
      of a trial judge’s discretion to grant or refuse a continuance
      based on the absence of a material witness include whether the
      witness is essential to the defense or necessary to strengthen
      the defendant’s case, the diligence exercised to procure his
      presence at trial, the facts to which the witness could testify, and
      the likelihood that the witness could be produced at the next
      term of court.




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Commonwealth v. Howard, 353 A.2d 438, 439 (Pa. 1976) (citing

Commonwealth v. Smith, 275 A.2d 98 (Pa. 1971)).2

       Here, the thrust of the trial court’s denial of continuance rests upon

the Commonwealth’s inadequate effort to secure the witness’s presence at

the PFA hearing. Specifically, the trial court found as follows:

       The Commonwealth simply mailed the subpoena [to Plaintiff]
       three days after their receipt of [n]otice of the hearing. The
       Commonwealth depended on an overnight delivery although no
       expedited postal service was requested. Further, when the
       Commonwealth learned the number they called was incorrect the
       office made no attempt to pull the file, contact [Plaintiff]’s
       attorney or reach [Plaintiff] by any other means.

                                           ....

       The Commonwealth did not file a continuance request as soon as
       the issue of the wrong phone number became known. Instead,
       the Commonwealth allowed for [Appellee], his attorney and at
       least one police officer to appear in [c]ourt and depended on the
       [c]ourt allowing for a continuance. . . .

Trial Court Opinion, 1/5/15, at 6.

       In light of the foregoing, despite the trial court’s acknowledgement of

the short notice given to the parties, see N.T. 10/8/14, at 5-6, we are

constrained to agree with the trial court that the “Commonwealth did not

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2
  “Although the factors are stated in relation to a defense motion for
continuance, they are equally applicable when the prosecution requests a
continuance.” Commonwealth v. Micelli, 573 A.2d 606, 607 n.3 (Pa.
Super. 1990).

It is worth noting that the trial court’s authority to continue a PFA hearing is
also statutorily provided in 23 Pa.C.S.A. § 6107(c).



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exercise due diligence in their attempts to have [Plaintiff] present as a

witness.”     Id.    Accordingly, while we might have reached a different

conclusion, in light of our standard of review, we conclude that the trial court

did not abuse its discretion in denying the Commonwealth’s request for a

continuance.3

       Next, the Commonwealth argues the dismissal of the PFA petitions was

unwarranted given that the Commonwealth’s conduct was not willful and

that less severe sanctions were available.       In support, the Commonwealth

relies on decisions (e.g., Commonwealth v. Burke, 781 A.2d 1136 (Pa.

2001), and Commonwealth v. Shaffer, 712 A.2d 749 (Pa. 1998)) dealing

with dismissal of charges because of prosecutorial misconduct.              The

Commonwealth’s reliance on these cases is misplaced.

       The trial court did not dismiss the PFA petitions at issue here as a

sanction for the Commonwealth’s conduct, but as a consequence of the

Commonwealth’s inability to meet its burden at the hearing. See Trial Court

Opinion, 1/5/15, at 6 (“The charges were dismissed based on the
____________________________________________


3
  “An abuse of discretion may not be found merely because an appellate
court might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.”               Commonwealth v.
Dengler, 890 A.2d 372, 379 (Pa. 2005) (citation omitted); see also Ferko-
Fox v. Fox, 68 A.3d 917, 925 (Pa. Super. 2013) (citation omitted) (“An
abuse of discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion unless the
record discloses that the judgment exercised was manifestly unreasonable,
or the results of partiality, prejudice, bias or ill-will.”).



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Commonwealth’s inability to meet its burden at the time set for the hearing.

Both [a]ffidavits of [p]robable [c]ause allege [Appellee]’s violation was

communicating with [Plaintiff] in violation of the [PFA] Order. Plaintiff was

not present to testify to the alleged communications.”). Indeed, the PFA Act

provides that at the hearing on a PFA petition, “the plaintiff must prove the

allegation of abuse by a preponderance of the evidence.” 23 Pa.C.S.A.

§ 6107(a).    Because the Commonwealth did not meet its burden at the

hearing—a point not disputed by the Commonwealth—the trial court

dismissed the PFA petitions. In light of the foregoing, we conclude the trial

court did not abuse its discretion in dismissing the PFA petitions.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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