J-S56038-16


                                  2016 PA Super 163

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

HARRY GORDON NORTON, JR.,

                            Appellee                  No. 2242 MDA 2015


              Appeal from the Order Entered December 18, 2015
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000765-2015

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

OPINION BY STEVENS, P.J.E.:                            FILED JULY 22, 2016

       The Commonwealth appeals from the December 18, 2015, order

entered in the Court of Common Pleas of Centre County denying the

Commonwealth’s motion for a trial continuance.1 After a careful review, we

affirm.

       The relevant facts and procedural history are as follows: On April 6,

2015, Appellee was charged with one count of materially false written

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1
  In its timely notice of appeal, the Commonwealth has certified that “the
order will terminate or substantially handicap the prosecution pursuant to
Pa.R.A.P. 311.” Thus, we agree with the Commonwealth that this matter is
properly before us. See Pa.R.A.P. 311; Commonwealth v. Matis, 551 Pa.
220, 710 A.2d 12 (1998) (indicating the Commonwealth may properly
appeal from an order denying its motion for a continuance to secure a
necessary witness where it includes a certification pursuant to Rule 311).




*Former Justice specially assigned to the Superior Court.
J-S56038-16


statement-purchase,   delivery,   transfer   of   firearm,   18   Pa.C.S.A.   §

6111(g)(4)(ii), and one count of unsworn falsification to authorities, 18

Pa.C.S.A. § 4904(a)(1).    These charges stemmed from Appellee’s alleged

attempt to purchase a firearm at a store in Philipsburg, Centre County on

September 15, 2014, and his alleged false statement made on ATF Form

4473 (“the ATF Form”) in connection therewith.

     Specifically, Trooper Richard Hoover, the affiant of the criminal

complaint, alleged that, on the ATF Form, Appellee indicated he “was not

subject to a court order restraining him from harassing, stalking, or

threatening his child or an intimate partner or child of such partner.”

Criminal Complaint, filed 4/6/15. However, the trooper further alleged that,

in Florida, on November 19, 2013, Appellee was served with a protection

from abuse (“PFA”) order with regard to his then wife, and the PFA order did

not expire until November 19, 2014.    Accordingly, Trooper Hoover alleged

Appellee knowingly made a false statement on the ATF Form.

     After Appellee waived his preliminary hearing, a pre-trial conference

was held on July 16, 2015, and jury selection was scheduled for August 3,

2015. However, later in the day on July 16, 2015, Appellee’s counsel filed a

motion seeking a trial continuance due to “ongoing plea negotiations,” and

the Commonwealth did not oppose the motion.           The trial court granted

Appellee’s motion for a continuance and scheduled trial for October 2015.




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     On September 22, 2015, Appellee’s counsel filed another motion

seeking a trial continuance due to “ongoing negotiations,” and the

Commonwealth did not oppose the motion.            The trial court granted

Appellee’s motion for a continuance and scheduled trial for December 2015.

     On December 7, 2015, jury selection occurred, and trial was scheduled

to commence on December 22, 2015.         However, on December 17, 2015,

the Commonwealth filed a motion seeking a trial continuance. Specifically,

the Commonwealth averred, in relevant part, the following:

           At the time of jury selection, [Appellee’s counsel] raised
     for the first time that [Appellee] believed that he was only
     evicted from the residence and was not subject to a provision
     that prevented him from abusing, harassing, and/or stalking [his
     former wife] pursuant to a [PFA] order issued against him in the
     State of Florida.
           The Commonwealth began to investigate [Appellee’s]
     claims and believes that evidence exists to refute those claims.
          The Commonwealth has received a certified copy of the
     [PFA order] and a copy was provided to [Appellee’s counsel] on
     December 16, 2015.
           The Commonwealth has requested a certified copy of an
     Affidavit of Service of the [PFA order], however, the
     Commonwealth has not yet received this document.
           [Appellee’s counsel] has not advised whether he will
     stipulate to these documents or whether he will require a witness
     to authenticate these documents.
          A hearing was held on the [PFA application] on or about
     November 19, 2013, wherein the Commonwealth believes
     [Appellee] attended and participated in said hearing.
          The Commonwealth has made an expedited request for
     that transcript from the Florida courts[;] however[,] the
     Commonwealth has not yet received this document.
          Furthermore, the Commonwealth has been in contact with
     [Appellee’s ex-wife,] who is a critical witness in this matter, and

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        she has advised that she is unavailable for trial on Tuesday,
        December 22, 2015.
               The Commonwealth continues to attempt contact with
        [Appellee’s ex-wife’s attorney] who was present at the PFA
        hearing and had contact with [Appellee] at that time and will be
        a critical witness at trial.
               The court or issuing authority may, in the interests of
        justice, grant a continuance, on its own motion, or on the motion
        of either party. Pa.R.Crim.P. 106.
              [Appellee] has previously asked for and received two prior
        continuances.
              [Appellee] would not suffer any prejudice as a result of the
        continuance.
             [I]n light of the foregoing, the Commonwealth respectfully
        requests that [the court] grant a one-term continuance in this
        matter.

Commonwealth’s Motion for a Continuance, filed 12/17/15.2

        On December 18, 2015, the trial court held a hearing on the

Commonwealth’s motion for a trial continuance.            At the hearing, the

assistant district attorney (“ADA”) confirmed the Commonwealth had in its

possession a certified copy of the PFA order, which had been issued against

Appellee in Florida. N.T., 12/18/15, at 5. However, the ADA indicated that,

inasmuch as it appeared Appellee planned to allege at trial that he “was only

advised that [the PFA order] evicted [him] from the house,” id. at 6, the

Commonwealth made efforts to procure various documents and witnesses to

refute his claims.     Id.   The ADA argued the witnesses and documents are

____________________________________________


2
    The motion was not paginated.



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“critical” to proving that Appellee was advised in Florida that he was

restrained from abusing, harassing, or stalking his ex-wife. Id.

      In response, Appellee’s counsel argued that he already informed the

Commonwealth he would stipulate to the authenticity and admissibility of

the PFA order. Id. at 7. Furthermore, he indicated that, just prior to the

instant hearing, the ADA provided him with a non-certified copy of the

transcript from Appellee’s Florida PFA hearing, and he informed the ADA that

he would stipulate to the authenticity and admissibility of the transcript.

Appellee’s counsel noted that Appellee has been experiencing anxiety in

connection with the instant charges, and he was ready to proceed to trial.

Id. at 10. Additionally, Appellee’s counsel noted that, if the Commonwealth

was going to present the testimony of new witnesses, including Appellee’s

ex-wife, it would be necessary to litigate a motion in limine to exclude

certain testimony. Id.

      The ADA responded that “[t]here are witnesses that are needed to

testify as to what was done at that [PFA] hearing, what those conversations

were with [the ex-wife’s] attorney, because apparently [Appellee] had

conversations as to what the conditions were. That’s critical to this [case],

as to what he knew.” Id. at 12.

      The following relevant exchange then occurred between the ADA and

the trial court:

      THE COURT: Is that critical?
      [ADA]: Yes, it is, Judge. It’s critical to what he knew.

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      THE COURT: Does the statue say—
      [ADA]: He claims that he didn’t know he was subject to the
      provisions.
      THE COURT: Sure he’s going to claim that. Of course. It’s the
      only thing he can claim. “I didn’t know it.”
      [ADA]: That’s critical, and we need those witnesses, Your
      Honor.
      THE COURT: Motion for a continuance is denied. We’ll be ready
      on Tuesday.

Id.

      The Commonwealth filed a motion for reconsideration, and following a

hearing on December 21, 2015, the trial court denied the motion for

reconsideration. This timely appeal followed on December 21, 2015, and all

Pa.R.A.P. 1925 requirements have been met.

      On appeal, the Commonwealth alleges the trial court erred in denying

its motion for a trial continuance.

      Initially, we note the following:

            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, 628 Pa. 524, 104 A.3d 466, 529-30 (2014)

(quotations marks, quotation, and 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


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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 (Pa.Super.

2013) (quotation omitted). 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[.]” Id. at 672 (quotation marks and quotation omitted).

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. See id.

      As indicated supra, the Commonwealth asserted that, during jury

selection, it “discovered” Appellee’s anticipated defense, i.e., that he did not

have notice of and/or did not understand the terms of the Florida PFA order.

The Commonwealth further asserted that, in order to disprove Appellee’s

anticipated trial defense, it sought to secure various documents and

witnesses related to the Florida PFA proceedings.

      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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Commonwealth v. Micelli, 573 A.2d 606, 607 (Pa.Super. 1990) (quotation

and footnote omitted). A similar inquiry as to the documents is appropriate

in this case.

      In its opinion, the trial court set forth the following reasons for denying

the Commonwealth’s motion for a trial continuance:

             The Commonwealth has alleged that on September 15,
      2014, [Appellee] attempted to purchase a gun while being
      subject to an active [PFA order] in Florida. Trooper Richard
      Hoover. . .was assigned to investigate the PICS Firearms
      Rejection on November 4, 2014[,] at the request of the PA State
      Police Firearms Division. Included in the investigation request
      was a copy of the ATF Form [ ] completed and signed by
      [Appellee] in which he indicated on question 11(h) that he was
      not subject to a court order restraining him from harassing,
      stalking, or threatening his child or an intimate partner or child
      of such partner. Also included in the investigation request was a
      copy of the CLEAN response, which indicated [Appellee] was
      subject to such an order in the state of Florida until November
      19, 2014. On February 22, 2015, Trooper Hoover was able to
      interview [Appellee] at PSP Phillipsburg barracks. [Appellee]
      voluntarily agreed to participate in the interview.            He
      acknowledged having an order placed on him restraining him
      from his residence in Florida, but stated that he was not aware
      the order also restrained him from his then wife[.]
             It is clear from the affidavit of probable cause that the
      Commonwealth had been put on notice of [Appellee’s] defense
      since the charges were filed. This [c]ourt’s denial of the motion
      for trial postponement and denial of the motion to reconsider
      said decision did not substantially hinder the Commonwealth’s
      ability to prosecute the case. From the information available to
      this [c]ourt, it respectfully submits that it was the
      Commonwealth’s own oversight that created a last minute
      search for witnesses.      This [c]ourt does not believe that
      [Appellee], who was ready to proceed to trial, should be forced
      to wait with these charges hanging over his head while the
      Commonwealth secures witnesses it should have known it would
      require at the time charges were filed more than eight months
      earlier.


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            Furthermore, in order for the Commonwealth to prove
      [Appellee] guilty beyond a reasonable doubt of the materially
      false written statement charge, it would have to prove that he
      knowingly and intentionally made a materially false written
      statement, including a statement on any form promulgated by
      Federal or State agencies, in connection with the purchase,
      delivery, or transfer of a firearm. The Commonwealth would
      thus need evidence that [Appellee] knew he was subject to an
      order preventing him from harassing and/or stalking [his ex-
      wife]. It appears that the same witnesses the Commonwealth
      now felt were necessary after jury selection would have been
      necessary to prove [Appellee’s] knowledge all along. It is for
      these reasons that the [c]ourt respectfully submits that it did not
      err in denying the Commonwealth’s motion for trial
      postponement.

Trial Court Opinion, filed 1/22/16, at 2-3.

      Here, the trial court’s denial of the continuance is based upon the

Commonwealth’s lack of diligence in procuring the witnesses and documents

for trial.   The trial court rejected the Commonwealth’s allegation that it

“discovered”    Appellee’s   defense,   and   corresponding   need   to   present

documents and witnesses to refute the defense, for the first time during jury

selection. Rather, the trial court reasoned that, since the evidence related to

the elements of the offenses and/or rebutted a defense that should have

been anticipated by the Commonwealth, the Commonwealth should have

been aware of the need for the documents and witnesses from the time it

filed the charges against Appellee.

      Accordingly, the trial court concluded the Commonwealth’s “last

minute search” for the documents and witnesses was not sufficient to

demonstrate the Commonwealth exercised due diligence in attempting to


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procure the evidence, and thus, the trial court denied the request for a

continuance. In light of our deferential standard of review, we conclude the

trial court did not abuse its discretion.3         Brooks, supra.   Accordingly, we

affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




____________________________________________


3
  We note the Commonwealth argues the trial court abused its discretion in
denying its request for a trial continuance since, under Pa.R.Crim.P. 600,
had the continuance been given, Appellee’s trial would still have been
prompt and Appellee would not have otherwise suffered prejudice. See
Commonwealth’s Brief at 12-14. To the extent such an inquiry is relevant to
the instant matter, we conclude the trial court did not abuse its discretion in
this regard. As indicated supra, trial judges are afforded great latitude in
scheduling trials, and our review of trial judges’ continuance decisions is
deferential. See Brooks, supra; Sandusky, supra.



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