J-S65037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RASHEED J. ADAMS-SMITH

                            Appellant                No. 85 EDA 2015


            Appeal from the Judgment of Sentence August 1, 2014
             in the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003263-2013


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 24, 2015

        Appellant Rasheed Adams-Smith appeals from the judgment of

sentence entered in the Montgomery County Court of Common Pleas

following his jury trial convictions for rape of a child under the age of 13,1

involuntary deviate sexual intercourse with a child under the age of 13,2

indecent assault of a child under the age of 13,3 and indecent exposure.4

After careful review, we affirm.


____________________________________________


1
    18 Pa.C.S. § 3121(c).
2
    18 Pa.C.S. § 3123(b).
3
    18 Pa.C.S. § 3126(a)(7).
4
    18 Pa.C.S. § 3127(a).
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      The trial court set forth the relevant facts and procedural history of

this matter as follows:

            On April 1, 2014, following trial before the [trial court] and
      a jury, [Appellant] – then represented by William E. Moore,
      Esquire – was convicted of rape of a child under the age of
      thirteen, involuntary deviate sexual intercourse with a child
      under the age of thirteen, indecent assault of a child under the
      age of thirteen, and indecent exposure.

             At trial, the Commonwealth presented evidence that
      [Appellant] – a close friend of the victim’s family – began
      improperly touching the victim (A.G.) at a time when A.G. was
      approximately five (5) years old and [Appellant] was a
      teenager.5 This improper contact continued over a period of
      years, beginning with repeated touching by [Appellant] of A.G.’s
      bare buttocks and ultimately escalating to, inter alia, [Appellant]
      exposing himself and masturbating to ejaculation in front of A.G.
      and repeatedly penetrating A.G.’s anus with his penis. A.G.
      testified that these anal penetrations occurred “too many times
      to count.”
         5
           At the time of trial A.G. was ten (10) years old and
         [Appellant] was twenty (20).

            [Appellant] was charged with and convicted of crimes he
      committed after his eighteenth birthday, specifically the period
      between July 2011 and September 2012.               Evidence of
      [Appellant’s] earlier improper conduct with A.G. was admitted –
      upon the Commonwealth’s motion – solely to provide the jurors
      with the complete background and history of the case.

             On August 1, 2014, [Appellant] appeared before the [trial
      court] for a hearing to determine whether [Appellant] would be
      classified as a sexually violent predator. Following hearing, the
      [trial court] accepted the recommendation of the Pennsylvania
      Sexual Offenders Assessment Board and determined that
      [Appellant] was, in fact, a sexually violent predator.

            The case then proceeded immediately to sentencing.
      Following hearing, the [trial court] imposed a standard range
      sentence of not less than ten (10) nor more than twenty (20)
      years[’] imprisonment on [Appellant’s] conviction for rape of a
      child. The [trial court] imposed a consecutive standard range

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     sentence of not less than ten (10) and not more than twenty
     (20) years[’] imprisonment on [Appellant’s] conviction for
     involuntary deviate sexual intercourse with a child. The [trial
     court] further imposed a concurrent sentence of not less than
     one (1) nor more than two (2) years[’] imprisonment on
     [Appellant’s] conviction for indecent assault, and a sentence of
     two (2) years[’] probation on his conviction for indecent
     exposure.

           [Appellant] thus received an aggregate sentence of not
     less than twenty (20) nor more than forty (40) years[’]
     imprisonment, with the [trial court] explaining the reasons for
     the sentences imposed at some length on the record.

             On August 8, 2014, [Appellant’s] trial attorney – Mr. Moore
     – filed a motion to withdraw as [Appellant’s] counsel, averring
     that he had not been retained by [Appellant] for the purposes of
     litigating an appeal. On August 11, 2014, Mr. Moore filed on
     [Appellant’s] behalf a motion to modify sentence in order to
     preserve [Appellant’s] post-sentence and appellate rights. On
     September 9, 2014, following a hearing, the [trial court] granted
     Mr. Moore’s petition to withdraw as counsel on [Appellant’s]
     representation that he desired to engage new appellate counsel
     and would shortly do so. On November 3, 2014, Henry S. Hilles,
     III, Esquire, formally entered his appearance on behalf of
     [Appellant]. Mr. Hilles made no request to file any amended or
     supplemental post-sentence motions on [Appellant’s] behalf and,
     by order dated December 16, 2014, the Montgomery County
     Clerk of Courts entered an order denying [Appellant’s] post-
     sentence motion by operation of law.

           On January 5, 2015, Mr. Hilles filed on [Appellant’s] behalf
     a timely notice of direct appeal to the Superior Court of
     Pennsylvania. On January 28, 2015, Mr. Hilles filed a timely
     statement of errors complained of on appeal, pursuant to
     Pennsylvania Rule of Appellate Procedure 1925(b).

Trial Court Pa.R.A.P. 1925(a) Opinion, March 12, 2015 (“1925(a) Opinion”),

pp. 1-3 (record citations and some footnotes omitted).

     Appellant raises the following issues for our review:




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      1. Did the Honorable Court err by failing to fully consider the
      Appellant’s request, made during trial, to fire his attorney and
      engage alternate counsel?

      2.   Did the Honorable Court commit error by granting the
      Commonwealth’s Motion to Admit Prior Bad Acts Pursuant to
      P[a].R.E. 404(b) with respect to the Appellant’s alleged unlawful
      sexual contact with the victim on numerous occasions during
      several years prior to July 17, 2011 (which is the earliest date
      charged in the Bill of Information)?

Appellant’s Brief, p. 4.

      First, Appellant alleges the trial court erred by not allowing him to fire

privately retained defense counsel mid-trial and retain new counsel.             See

Appellant’s Brief, pp. 11-19. Because Appellant retained his own counsel, he

effectively     requested   a   mid-trial    continuance   to   seek   new   counsel.

Specifically, Appellant alleges the trial court did not engage in an adequate

inquiry of Appellant’s reasons why he wished to obtain new counsel. Id. He

is incorrect.

      Our Supreme Court has explained this Court’s standard of review for

examining a challenge to a trial court’s continuance decision as follows:

      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, 104 A.3d 466, 469 (Pa.2014) (internal

quotations and citation omitted).


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      As this Court has explained:

      [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.

Commonwealth v. Sandusky, 77 A.3d 663, 671-72 (Pa.Super.2013)

(quoting Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610 (1983)).

“Accordingly, a trial court exceeds its constitutional authority only when it

exercises its discretion to deny a continuance on the basis of ‘an

unreasoning and arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay....’”   Sandusky, 77 A.3d at 671-72 (quoting

Morris, 461 U.S. at 11-12, 103 S.Ct. 1610). To determine whether a trial

court erred in denying a continuance request, “we must examine the

circumstances present in the case, especially the reasons presented to the

trial court for requesting the continuance.” Id. at 672. Where a defendant

is unable to provide compelling reasons, the trial court does not abuse its

discretion in denying a continuance.     See Commonwealth v. Antidormi,

84 A.3d 736, 746 (Pa.Super.2014), appeal denied, 95 A.3d 275 (Pa.2014)

(trial court did not abuse its discretion in denying Appellant’s fifth request for

a continuance, which was based upon nothing more than an unsupported

allegation).




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       Here, nearing the end of the second day of trial, and after the victim

had testified, Appellant requested to be allowed to relieve trial counsel 5 of

his duties and seek new counsel. See N.T. 4/2/2014, pp. 84-96. The trial

court conducted an on-record inquiry into Appellant’s request during which

Appellant stated he no longer had confidence in his attorney. Id. However,

when asked by the trial court to explain in detail the reasons behind his

sudden lack of confidence in counsel, Appellant was unable to respond

adequately. Id.6 The two “reasons” Appellant was able to verbalize during
____________________________________________


5
 Trial counsel had represented Appellant for over a year in this matter. N.T.
4/2/2014, pp. 87, 91.
6
  The following exchanges typify Appellant’s inability to articulate adequate
reasons for the requested continuance:

       THE COURT: What is important for me to know is why is it, now
       that we’re three days into trial, that you are convincing yourself
       that [trial counsel] does not hold your confidence any longer.
       You need to explain to me in detail why that’s the case.

       [APPELLANT]: I can’t, Your Honor.

       THE COURT: You can’t?

       [APPELLANT]: No.

N.T. 4/2/2014, pp. 89-90.

       THE COURT: Can you offer any additional explanation for me as
       it concerns specifics or particulars as to why it is you are
       unhappy with [defense counsel’s] services at this point?

       [APPELLANT]: No.

Id. at 92.

(Footnote Continued Next Page)


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the colloquy were unconvincing. First, Appellant stated that it seemed that

the trial court had already made up its mind regarding Appellant’s guilt. Id.

at 85-86. The trial court correctly explained to Appellant that his concern

about the court’s perception of the evidence was unrelated to his confidence

in counsel, and was both unfounded and inaccurate.7          Id. at 89. Second,

                       _______________________
(Footnote Continued)

        THE COURT: Okay. So what I’m hearing, Mr. Adams-Smith, is
        that, for the first time, you are indicating to me that you don’t
        have confidence in your attorney, but you’re not able to tell me
        why.

        [APPELLANT]: Basically.

Id. at 93.
7
    The trial court explained thusly:

        [L]et me be very clear about a statement that you made at the
        outset. Okay?

        I have never said to anybody or given my own opinion as to
        whether or not you are guilty or not guilty. First of all, a jury is
        going to make that decision. I’m not going to make it. As the
        Judge in this case, my job is to be as objective and as fair as I
        can be to both sides, and, frankly, I don’t mind telling you, that’s
        precisely what I have done from the outset of this case.

                                           *****

        You sat here through the motions that were filed, as many as
        seven by the Commonwealth, and I ruled on every one of those
        motions objectively.

        Now, so first and foremost, I don’t have any idea where you’re
        coming from when you suggest that I might have some bias in
        this case. First of all, I’m not the fact finder. And second of all,
        that is certainly not so or not true.

N.T. 4/2/2014, p. 89.



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Appellant explained that his aunt had told him it did not seem as though

counsel had any confidence in Appellant’s prospects for success. Id. at 88.

However, trial counsel explained that throughout his representation of

Appellant, he had done everything professionally possible to safeguard

Appellant’s interests and that he was prepared to proceed with the trial.

See N.T. 4/2/2014, pp. 94-95; see also Morris, 461 U.S. at 12, 103 S. Ct.

at 1616 (“In the face of the unequivocal and uncontradicted statement by a

responsible officer of the court that he was fully prepared and ‘ready’ for

trial, it was far from an abuse of discretion to deny a continuance.”).

       Under these circumstances, the trial court did not err in denying

Appellant’s continuance motion. Appellant’s first claim fails.

       Next,   Appellant   claims   the   trial    court    erred   by   allowing    the

Commonwealth to introduce evidence of Appellant’s prior bad acts.                    See

Appellant’s Brief, pp. 19-27. This claim is waived.

       “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). Additionally, “the absence of

a   specific   contemporaneous      objection     renders    [an]   appellant’s     claim

waived.” Commonwealth v. Baumhammers, 960 A.2d 59, 84 (Pa.2008).

       Here, the Commonwealth filed a Pa.R.E. 404(b) motion in limine

seeking the introduction into evidence of Appellant’s earlier, non-charged

victim-grooming conduct in order to provide the jury with the full history of

the case. Appellant neither filed a written answer to the Commonwealth’s

motion nor argued against it at a hearing conducted by the trial court on

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pre-trial motions.8 See N.T. 3/31/2014. Additionally, Appellant offered no

objection when the Commonwealth introduced the prior bad acts evidence at

trial.   See N.T. 4/2/2014; see also Commonwealth v. Molina, 33 A.3d

51, 55 (Pa.Super.2011) (“a defendant’s failure to object to allegedly

improper testimony at the appropriate stage in the questioning of the

witness constitutes waiver.”).        As a result, Appellant has waived his claim

based on the trial court’s ruling on the Commonwealth’s Pa.R.E. 404(b)

motion.9

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2015



____________________________________________


8
  The trial court allowed Appellant a further opportunity to respond to the
Commonwealth’s motion by submitting argument after reviewing the
relevant law after the hearing. Appellant did not avail himself of this
opportunity.
9
  To the extent Appellant may wish to bring a claim of ineffective assistance
of counsel based on this waiver, such a claim must await collateral review.
See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.2013) (“claims of
ineffective assistance of counsel are to be deferred to PCRA review”).




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