J-S23013-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: S.D., A MINOR                     : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                                         :
                                         :
                                         :
APPEAL OF: S.D., A MINOR                 : No. 936 EDA 2014

             Appeal from the Dispositional Order March 21, 2014,
                 Court of Common Pleas, Philadelphia County,
               Juvenile Division at No. CP-51-JV-0000345-2014

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED MAY 14, 2015

       S.D. appeals from the March 21, 2014 dispositional order of the

Philadelphia County Court of Common Pleas following her adjudication of

delinquency for simple assault.1   On appeal, S.D. challenges the juvenile

court’s denial of her request for a continuance, made on the day of trial, for

her counsel to investigate three alleged eyewitnesses who could potentially

testify in support of her defense.    S.D. also contests the basis for the

juvenile court’s finding that she committed simple assault, asserting that the

juvenile court “improperly shift[ed] the burden of proof” to the defense to

disprove that she committed the delinquent act.     Upon review, we vacate

and remand for a new adjudicatory hearing.

       On February 5, 2014, police arrested S.D. and charged her with simple

assault, recklessly endangering another person and conspiracy. On February

18, 2014, the juvenile court held a pretrial conference attended by S.D., her


1
    18 Pa.C.S.A. § 2701(a)(1).


*Retired Senior Judge assigned to the Superior Court.
J-S23013-15


mother, Attorney Emily Murbarger from the Office of the Public Defender,

and an assistant district attorney.        The record reflects that at that

proceeding, S.D. rejected an offer made to her by the Commonwealth and

that the discovery process was complete. The juvenile court set March 21,

2014 for the adjudicatory hearing.

       At the March 21, 2014 proceeding, Attorney Stacey Greenspan from

the Office of the Public Defender (“Attorney Greenspan”) was representing

S.D.   Prior to the commencement of the hearing, off the record, Attorney

Greenspan apparently requested a continuance on her client’s behalf. Once

on the record, the juvenile court queried why Attorney Greenspan was not

prepared to proceed. Thereafter, the following exchange took place between

Attorney Greenspan and the juvenile court:

            MS. GREENSPAN: Your Honor, we found out about
            the three witnesses yesterday.

            THE COURT: There’s no we, counsel.        I’m asking
            you why you’re not ready for trial.

            MS. GREENSPAN: I am not ready for trial[] because
            I received this file yesterday.

            THE COURT:       You received it yesterday from
            who[m]?

            MS. GREENSPAN: I guess from the attorney who
            handled it from pretrial in A Court and when I --

            THE COURT: You guess from the attorney who
            handled it. … Something is missing here. I have
            been given a good one. Standing right there, there’s




                                     -2-
J-S23013-15


          never any guesses. You were assigned by somebody
          or not?

          MS. GREENSPAN: Yes, Your Honor.

          THE COURT: To represent this child?

          MS. GREENSPAN: Yes.

          THE COURT: Okay. I’m asking you why you’re not
          ready because we’re going to trial now, and I’m just
          asking you why you’re not ready?

          MS. GREENSPAN: And my answer is that there has
          not been contact with my client. When I spoke with
          my --

          THE COURT: You mean your client hadn’t been in
          contact with you?

          MS. GREENSPAN:       That’s correct.   And when I
          reached out --

          THE COURT: Why is that?

          MS. GREENSPAN: I can’t say. I don’t know.

          THE COURT: But she got a form when she was
          arrested saying that she had to get in touch with
          you, your office to prepare a defense in her case.
          She did get that, didn’t she?

          MS. GREENSPAN: Yes, Your Honor.

          THE COURT: And did she get in touch with you to
          prepare for your case?

          MS. GREENSPAN:       Not me personally, no, Your
          Honor.

          THE COURT: Did she get in touch with anyone from
          your office to prepare for this case?




                                 -3-
J-S23013-15


            MS. GREENSPAN: I don’t believe so, Your Honor.

            THE COURT: Well, you’re going to have to do the
            best you can.

            MS. GREENSPAN: Would Your Honor bifurcate for the
            defense witnesses?

            THE COURT: Why should I do that?

            MS. GREENSPAN: Because there are three witnesses,
            three eyewitnesses.

            THE COURT: That may be so. When did you learn
            about the witnesses?

            MS. GREENSPAN: Yesterday.

            THE COURT: From who?

            MS. GREENSPAN: From my client.

            THE COURT: Your client had an obligation to tell you
            about her witnesses and preparing her for trial some
            time ago. And [the prosecutor] is going to put on his
            case, and then you’re going to have to put on yours.
            If she was not willing to follow the directions of the
            [c]ourt, she gets what she gets but all we can do is
            our best.

N.T., 3/21/14, at 4-6.

      The Commonwealth then called its first and only witness, the alleged

victim in the case, D.C.       She testified that she was walking home from

school when friends of S.D. came up to her and asked if she was the person

S.D. wanted to fight.       D.C. then approached S.D., who was also walking

home from school, and asked if S.D. wanted to fight her, to which S.D.

replied that she did not.



                                      -4-
J-S23013-15


      D.C. then walked to the corner of 54th and Delancey Streets and

waited for a friend, not knowing that S.D. resided there. D.C. stated that

S.D.’s mother came outside, asked, “is this the girl?” to which S.D. replied

“yeah.”   Id. at 11.       According to D.C., S.D.’s mother proceeded to strike

D.C., and S.D. “charged in.”       Id.   D.C. testified that S.D. and her mother

pulled D.C.’s hair, resulting in D.C. having a bald spot on her head.       S.D.

also reportedly kicked D.C., splitting D.C.’s lip.        D.C. testified that she

believed several of S.D.’s friends witnessed the fight.

      Following D.C.’s testimony, the Commonwealth rested.              Attorney

Greenspan began the presentation of S.D.’s case by stating a stipulation on

the record that if called to testify, S.D.’s uncle would testify that S.D. has a

reputation in the community as “being a peaceful and law-abiding citizen.”

Id. at 22. S.D. then testified on her own behalf, and agreed with D.C. that

D.C. asked if S.D. had said she wanted to fight her, but stated that upon

telling D.C. “no,” D.C. told S.D. that she wanted to fight S.D. S.D. stated

that it went so far as to require the mother of a friend of S.D. to step in and

ensure that S.D. received a ride home to protect S.D. from D.C.

      Upon arriving home, S.D. testified that she told her mother what

happened.     Her mother went outside, saw D.C., asked, “is this her?” and

upon receiving confirmation from S.D., verbally confronted D.C. According

to S.D., D.C. struck S.D.’s mother, following which S.D. admitted that she

hit D.C. in retaliation.



                                         -5-
J-S23013-15


      At the conclusion of the hearing, the juvenile court stated the

following:

             The reason I’m finding you guilty of simple assault is
             because you were involved in activity that is illegal.

             You were given an attorney to prepare your defense
             and to assure that everything in this incident was
             exposed to light, and you took no action to prepare.
             You did nothing.

             I find simple assault. This is an adjudication of
             delinquency. I’m putting her on probation.

Id. at 27.   Attorney Greenspan requested that the juvenile court state on

record the reasons for the adjudication, and the juvenile court responded:

“She has a disrespect for the process of law. She was prepared to fight in

the street, and I believe that she lied under oath.” Id. at 28.

      S.D. filed a timely notice of appeal, followed by a court-ordered

concise statement of errors complained of on appeal. On October 9, 2014,

the juvenile court issued a responsive opinion pursuant to Rule 1925(a) of

the Pennsylvania Rules of Appellate Procedure.

      S.D. raises the following issues for our review:

             1. Did not the juvenile court err when it denied
             [S.D.] her constitutional right to present a defense,
             when, at the first trial listing in juvenile court, it
             denied a continuance request by the defense to
             further investigate and secure attendance of
             essential witnesses?

             2. Did not the juvenile court err by improperly
             shifting the burden of proof to [S.D.] and by drawing
             improper adverse inferences from [S.D.]’s failure to



                                     -6-
J-S23013-15


              present evidence, blaming her for not sufficiently
              preparing her defense, thereby violating [S.D.]’s
              rights to the presumption of innocence, due process
              and fundamental fairness?

S.D.’s Brief at 3.

      In support of her first issue raised on appeal, S.D. asserts that by

denying her request for a continuance, the juvenile court precluded her from

presenting witnesses in her favor, thus violating her right to due process

guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United

States Constitution. Id. at 11-14. The juvenile court denies this claim. It

states that its reason for denying the request for a continuance was based

upon its desire to avoid the problems that arise from the grant of

continuances.    Juvenile Court Opinion, 10/6/14, at 2-3.   According to the

juvenile court, there was a historical backlog of cases in the Philadelphia

County Juvenile Court, which led to some cases never being tried for various

reasons. Id. at 2. The juvenile court points to the fact that S.D. had forty-

four days between the appointment of counsel until the date of trial to

prepare her case, and states that her failure to take advantage of that time

“does not equate to an abuse of discretion” by the juvenile court in denying

her request for a continuance. Juvenile Court Opinion, 10/6/14, at 3-4.

      We review a denial of a motion for continuance for an abuse of

discretion.   Commonwealth v. Ross, 57 A.3d 85, 91 (2012) (en banc).

“An abuse of discretion is not merely an error of judgment; rather, discretion




                                     -7-
J-S23013-15


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. (citations and

quotations marks omitted).

              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. Instead, [a]n
              appellant must be able to show specifically in what
              manner he was unable to prepare 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. (internal citations omitted).

      “[A] myopic insistence upon expeditiousness in the face of a justifiable

request for delay can render the right to defend with counsel an empty

formality.”   Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super.

2013) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). Therefore,

“[i]n reviewing the denial of a continuance, we have regard for the orderly

administration of justice as well as the right of a criminal defendant to have

adequate time to prepare his defense.”        Commonwealth v. Small, 741

A.2d 666, 682-83 (Pa. 1999) (citation omitted). “To determine whether a

constitutional violation occurred, we must examine the circumstances

present in the case, especially the reasons presented to the trial court for

requesting the continuance.” Sandusky, 77 A.3d at 672.




                                      -8-
J-S23013-15


      When reviewing a lower court’s denial of a request for a continuance to

secure the attendance of a defense witness we must consider the following:

            (1)   the necessity of the witness to strengthen the
                  defendant’s case;

            (2)   the essentiality of the witness to the
                  defendant’s defense;

            (3)   the diligence exercised to procure his or her
                  presence at trial;

            (4)   the facts to which he or she could testify; and

            (5)   the likelihood that he or she could be produced
                  at court if a continuance were granted.

Small, 741 A.2d at 683 (citation omitted).

      We have carefully reviewed the record in this case and can find no

abuse in the juvenile court’s discretion, as counsel for S.D. failed to create a

record in support of her continuance request. Counsel did not file a written

motion detailing the reasons for the requested continuance.             At the

adjudicatory hearing, she presented no information as to the identity of the

potential witnesses, what she believed their testimony would be, or how, if

at all, the testimony would aid in S.D.’s defense. Nor did she indicate the

efforts, if any, made by herself, other members of the Public Defender’s

Office, or S.D. to speak to the potential witnesses in advance of the

adjudicatory hearing. Although Attorney Greenspan stated that she did not

receive S.D.’s file until the day before the hearing, the record reflects that

the Office of the Public Defender had been representing S.D. since at least



                                     -9-
J-S23013-15


February 18, 2014.2 Counsel also did not request to put S.D.’s testimony on

the record so that S.D. could identify when she became aware of the identity

of the alleged witnesses and what she believed their testimony would be.

      We agree with counsel for S.D. that “the existence of discretion in the

[juvenile] court is not a license to trample underfoot the right of a person on

trial for a crime to call witnesses necessary to defend against that charge.”

S.D.’s Brief at 17. The defendant, however, has an obligation to present a

sufficient basis before the lower court for this Court to conclude that the

lower court abused its discretion by denying a continuance request.        See

Small, 741 A.2d at 683; Ross, 57 A.3d at 91; Sandusky, 77 A.3d at 671-

72. As counsel for S.D. failed to do so in this case, we are unable to find

that the juvenile court abused its discretion by denying her request for a

continuance of the adjudicatory hearing.

      Next, S.D. asserts that the juvenile court “deprive[d] [her] of her

constitutional right to the presumption of innocence, and by extension, to

due process and fundamental fairness,” by basing its finding of guilt upon

her failure to adequately prepare for the adjudication hearing. S.D.’s Brief

at 21-24.   According to S.D., in doing so, the juvenile court shifted the

burden of proof to her, requiring her to disprove her guilt, rather than


2
    The certified record on appeal does not contain a written entry of
appearance in this case. There is no indication when the Office of the Public
Defender began representing S.D. other than an attorney from that office
representing S.D. at the February 18, 2014 pretrial hearing. See Juvenile
Order, 2/18/14.


                                    - 10 -
J-S23013-15


forcing the Commonwealth to prove beyond a reasonable doubt her

responsibility for the crimes charged.           Id. at 21-23.      The juvenile court

disagreed, stating:

                While it is true that this [c]ourt found that [S.D.]
             had demonstrated disrespect for the process of law,
             this [c]ourt’s adjudication of the [sic] delinquency
             was based upon the determination that [S.D.] was in
             need of treatment, rehabilitation and supervision.
             This [c]ourt found that [S.D.] was engaged in a fight
             on the street during which she and her mother
             struck and kicked the [c]omplainant[,] causing her
             bodily injury. This [c]ourt also took into account its
             determination that [S.D.] lied under oath at her
             adjudicatory hearing. While this [c]ourt noted that
             [S.D.] did not take steps afforded to her to prepare
             for [c]ourt, this was not the basis of the adjudication
             of delinquency.

Juvenile Court Opinion, 10/6/14, at 4-5.

       Had the juvenile court based its decision to adjudicate S.D. delinquent

solely based upon its findings that she engaged in illegal activity and

provided testimony that was not credible, S.D. would not be entitled to relief

for   the   argument    raised on appeal.3           Despite   the    juvenile    court’s

protestations   to    the   contrary,   however,     the   record    reveals     that   in

adjudicating S.D. delinquent, it relied, in part, upon S.D.’s failure to prepare

for court and present a defense. When announcing its decision to adjudicate



3
   As we explain infra, an adjudication of delinquency requires a finding that
a juvenile committed a delinquent act and is in need of rehabilitation,
supervision or treatment. 42 Pa.C.S.A. § 6302. S.D. does not challenge,
and we therefore do not decide, whether the evidence presented supported
a finding that she was in need of rehabilitation, supervision or treatment.


                                        - 11 -
J-S23013-15


S.D. delinquent, the juvenile court stated it was doing so because in addition

to finding that she was involved in illegal activity, she “took no action to

prepare” her defense “and to assure that everything in this incident was

exposed to light[.]”      N.T., 3/21/14, at 27.        When asked by Attorney

Greenspan for clarification as to the basis for its decision to adjudicate S.D.

delinquent, the juvenile court responded:       “She has a disrespect for the

process of law. She was prepared to fight in the street, and I believe she

lied under oath.” N.T., 3/21/14 at 28.

        The Juvenile Act defines a “delinquent child” as “[a] child ten years of

age or older whom the court has found to have committed a delinquent act

and is in need of treatment, supervision or rehabilitation.” 42 Pa.C.S.A. §

6302.    A “delinquent act” is, in relevant part, “an act designated a crime

under the law of this Commonwealth[.]”         Id.     S.D.’s “disrespect for the

process of law” has nothing to do with whether she is a delinquent child.

Rather, as the juvenile court’s opinion makes clear, this is solely a

consideration of the adequacy of S.D.’s preparation for the hearing and the

presentation of her case.

        It is well-settled law that a criminal defendant has no duty to present

any evidence or witnesses on his or her behalf, “but may stand mute

protected    by   the   presumption   of   innocence    and   demand   that   the

Commonwealth sustain its burden of proving his guilt beyond a reasonable

doubt.” Commonwealth v. Miller, 208 A.2d 867, 870 (Pa. Super. 1965)



                                      - 12 -
J-S23013-15


(en banc).    Of relevance to this appeal, in Miller, the prosecutor in his

closing argument commented on the fact that the defendant did not testify

and called only one witness in his defense. Id. at 869. The en banc panel

found that this statement, standing alone, may not have required reversal:

                 If the remark is of such a character as to violate
             the accused's constitutional rights, such as a
             reference to his failure to take the witness stand, it
             cannot be cured by the trial judge and a new trial
             must be ordered; * * *’. However[,] it has been held
             permissible in criminal cases for the trial judge and
             the district attorney to comment to the jury on the
             defendant's failure to testify provided it is done fairly
             and does not attempt to raise any adverse inference
             in the mind of the jury. The statute prohibits adverse
             comment; not comment generally.

Id. (quoting Commonwealth v. Wilcox, 173 A. 653 (Pa. 1934)).

     During jury deliberations, however, the jury submitted a question,

asking, “Does a juror have the right to take into consideration the fact that

the defense made no attempt to defend the accused by witnesses?”         Id.

The trial court responded by stating:

                Yes, a juror does have a right to take into
             consideration the fact that the defense made no
             attempt to defend the accused by witnesses’, if that
             is what you found he did, if he made no attempt,
             but, as I say, he called one witness on his behalf. So
             obviously you can take that into account but you
             can't draw anything adverse to the defendant by the
             fact that he, the defendant, did not take the stand.

Id. at 870. This Court found that this was “fundamental error”:

                This answer was a clear affirmation not only that
             the jury could take into consideration the failure of



                                      - 13 -
J-S23013-15


             the defendant to attempt to get witnesses and that
             witnesses were not called by the defendant but
             because of the emphasis placed on the fact that they
             could not make an adverse inference in the case of
             the defendant’s election that they could make such
             an adverse inference because he failed to better
             defend himself.

                … With this charge the jury may draw an adverse
             inference from the defendant’s failure to produce
             evidence and, in effect, treat it as circumstantial
             evidence of guilt which, together with the
             Commonwealth’s evidence could convince the jury
             beyond a reasonable doubt.

                The trial judge’s answer in effect nullified the
             presumption of innocence, abrogated the right to
             remain silent and instructed the jury to make
             adverse inferences. … From the charge of the court
             in answer to the jury's question a reasonable
             inference can be made by the jury that the
             defendant would have called witnesses if he were not
             guilty.

Id. On that basis, we remanded the case for a new trial. Id. at 871.

        The case at bar was a bench trial, and thus, the lower court, not a

jury, served as the finder of fact, and we therefore presume that the juvenile

court    knew    the   law   and   applied    the   correct   burden   of   proof.

Commonwealth v. Smith, 97 A.3d 782, 789 (Pa. Super. 2014).                   This

presumption may be rebutted if there is evidence of record to support a

contrary conclusion. See Commonwealth v. Salter, 858 A.2d 610, 615-16

(Pa. Super. 2004).

        As stated in Miller, it is error for the factfinder to draw an adverse

inference from the defendant’s failure to present evidence in support of her



                                     - 14 -
J-S23013-15


defense. Miller, 208 A.2d at 870. Here, the juvenile court expressly stated

that when adjudicating her delinquent, it relied, in part, upon S.D.’s failure

to present evidence in her defense. This is a clear indication by the juvenile

court that it did not apply the proper burden of proof, effectively rebutting

the presumption that the lower court, sitting as finder of fact, applies the

correct law and burden of proof.     The juvenile court’s reliance upon her

failure to attempt to secure witnesses in advance of the hearing or to call

witnesses in support of her defense was improper. See id.

      We are therefore compelled to vacate S.D.’s disposition and remand

the case for a new adjudicatory hearing at which the proper burden of proof

is applied.

      Disposition vacated. Case remanded for a new adjudicatory hearing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/14/2015




                                    - 15 -
