J-S34037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

LARRY R. SEBRING,

                            Appellee                 No. 3477 EDA 2016


               Appeal from the Orders Entered November 2, 2016
                in the Court of Common Pleas of Monroe County
               Criminal Division at No.: CP-45-CR-0000862-2016

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JUNE 27, 2017

        The Commonwealth appeals from the trial court’s orders denying its

motion for a continuance and granting, in part, Appellee, Larry R. Sebring’s,

motion to exclude the testimony of Detective Christopher Boheim.            We

affirm.

        We take the following facts from the trial court’s December 15, 2016

opinion:

              The Commonwealth presented evidence at the preliminary
        hearing that on November 8, 2015, while [Appellee] was walking
        his dog in a park, he encountered M.F. and her son N.F., who
        were also walking their dog in the park. The [F.s’] dog slipped
        out of his collar and approached [Appellee’s] dog. N.F. ran after
        the [F.]s’ dog, and later restrained the dog while crouching next
        to it. [Appellee] pulled out a revolver and pointed it in the

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*
    Retired Senior Judge assigned to the Superior Court.
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        general direction of [N.F.] and the [F.s’] dog, threatening to
        shoot the dog if it came near his dog again.

              On January 8, 2016, Stroud Area Regional Police filed a
        criminal complaint against [Appellee], charging him with simple
        assault, recklessly endangering another person [(REAP)], and
        disorderly conduct.[1] [Appellee] appeared for a preliminary
        hearing before Magisterial District Justice Thomas Olsen on April
        12, 2016, at which time the simple assault charge was dismissed
        and the other two charges were held for court. [The case was
        scheduled for the September 2016 trial term.]

                                        *      *   *

               On August 12, 2016, [Appellee] filed a motion to continue
        trial to the November 2016 trial term, with the concurrence of
        the Commonwealth, because he was having eye surgery on
        August 30, and was unsure how long his recovery would take.
        By order dated August 15, 2016, [Appellee’s] motion was
        granted and the case was continued to the November 2016 trial
        term, with jury selection scheduled to commence on November
        1[, 2016].

              Late in the afternoon on October 31, 2016, [Appellee] filed
        a motion for date certain, in which he requested his trial be held
        between November 15 and November 18, to accommodate the
        availabilities of witnesses. The Commonwealth concurred with
        [Appellee’s] motion. The dates requested by [the] motion were
        outside our normal two-week trial term. [Appellee also] filed a
        motion to exclude the testimony of Detective [] Boheim on
        November 1, 2016, in which he sought, inter alia, to prevent
        Detective Boheim from testifying about the appropriate level of
        care involved in the handling of a firearm.

              [The trial court] met with counsel in chambers on the
        morning of November 1 to discuss the trial schedule and
        [Appellee’s] motions. At the conclusion of the in[-]chambers
        discussion, [the trial court] directed counsel to raise the issues
        discussed in chambers on the record.
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1
    18 Pa.C.S.A. §§ 2701(a)(3), 2705, and 5503(a)(1), respectively.




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             After the discussion in chambers, jury selection occurred.
       At the conclusion of jury selection, the Commonwealth requested
       that the court not swear in the jury. Due to the absence of an
       alternate juror during the seating of the jury, [the trial court] did
       not swear in the jury.         [It] then proceeded to address
       [Appellee’s] motion for date certain and an oral motion by the
       Commonwealth for a continuance of trial. [The trial court]
       denied [Appellee’s] motion for date certain and the
       Commonwealth’s oral motion for continuance, and stated [its]
       reasons for doing so on the record. [The court] then addressed
       [Appellee’s] motion to exclude the testimony of Detective []
       Boheim, which [it] granted in part and denied in part. [The
       court] permitted Detective Boheim to testify about the
       mechanical operation of [Appellee’s] revolver, but did not permit
       any expert testimony regarding the safe handling of a firearm.
       [The Commonwealth timely appealed and attached a statement
       in compliance with Rule 311(d) asserting that the trial court’s
       decision will either terminate or substantially handicap the
       prosecution.    (See Statement in Compliance with Pa.R.A.P.
       311(d), 11/03/16).2, 3]

(Trial Court Opinion, 12/15/16, at 1-4) (footnotes and unnecessary

capitalization omitted).

       The Commonwealth raises three questions for our review:


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2
  On December 13, 2016, this Court issued a per curiam rule to show cause
why this appeal should not be dismissed as interlocutory. (See Per Curiam
Order, 12/13/16). This appears to have been a technical oversight because
“the Commonwealth may take an appeal as of right from an order that
does not end the entire case where the Commonwealth certifies in the notice
of appeal that the order will terminate or substantially handicap the
prosecution.” Pa.R.A.P. 311(d) (emphasis added).
3
  The trial court did not order the Commonwealth to file a statement of
errors complained of on appeal, but it filed an opinion on December 15,
2016. See Pa.R.A.P. 1925.




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    1. Did the trial court err by granting in part [Appellee’s] motion to
       exclude the testimony of Detective Christopher Boheim, where
       the testimony that would have been elicited would have been
       relevant and permissible expert testimony?

    2. Did the trial court err by denying the Commonwealth’s oral
       motion for continuance, when the Commonwealth indicated to
       the court that their expert witness would not be available for trial
       on the date set by the court?

    3. Did the Commonwealth satisfactorily show cause as to why this
       appeal should not be quashed?[4]

(Commonwealth’s Brief, at 5) (unnecessary capitalization omitted).

       In its first issue, the Commonwealth challenges the trial court’s

decision to grant Appellee’s motion to exclude the testimony of Detective

Boheim, in part, thereby limiting his testimony “to his expert opinion of the

operation of the firearm in question.” (Id. at 13; see id. at 13-17). This

claim does not merit relief.

       Our standard of review is well-settled:

              The standard of review for a trial court’s evidentiary
       rulings is narrow. The admissibility of evidence is solely within
       the discretion of the trial court and will be reversed only if the
       trial court has abused its discretion. An abuse of discretion is
       not merely an error of judgment, but is rather the overriding or
       misapplication of the law, or the exercise of judgment that is

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4
 The Commonwealth included the third question because this Court issued a
per curiam order referring the issue of whether the Commonwealth’s appeal
should be quashed as interlocutory to the panel. (See Per Curiam Order,
1/11/17; Commonwealth’s Brief, at 5, 20-21).          However, as stated
previously, the Commonwealth can appeal as of right because it included a
certification in compliance with Rule 311(d) with its notice of appeal.
Therefore, we need not review the quashal issue.



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      manifestly unreasonable, or the result of bias, prejudice, ill-will
      or partiality, as shown by the evidence of record.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013), appeal

denied, 87 A.3d 319 (Pa. 2014) (citation omitted).

      “[W]hile the general rule of the admissibility of relevant evidence is

subject to various exceptions, the rule that irrelevant evidence is not

admissible is categorical. Accordingly, the threshold inquiry with admission

of evidence is whether the evidence is relevant.”          Commonwealth v.

McGriff, 2017 WL 1424438, at *38 (Pa. Super. filed Apr. 21, 2017)

(citation, emphasis, and internal quotation marks omitted).        “Evidence is

relevant if it logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable or supports a reasonable

inference or presumption regarding a material fact.”       Commonwealth v.

Green, ____ A.3d ____, 2017 WL 1885394, at *4 (Pa. Super. filed May 9,

2017) (citation omitted).

      Here, the trial court limited Detective Boheim’s testimony to “the

mechanical operation of [Appellee’s] revolver, but did not permit any expert

testimony regarding the safe handling of a firearm[,]” unless Appellee

inadvertently “open[s] the door” to this subject at trial. (Trial Ct. Op., at 4;

N.T. Proceedings, 11/01/16, at 10). It based this ruling on its observation

that testimony about the safe handling of a firearm is irrelevant to the

determination of whether Appellee’s gun, at the time of the incident, had the




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actual ability to inflict harm on the F.s. (See Trial Ct. Op., at 8). We agree

with the court.

       Pursuant to      the   Crimes Code, REAP is defined as       “recklessly

engag[ing] in conduct which places or may place another person in danger

of death or serious bodily injury.” 18 Pa.C.S.A. § 2705.

       To sustain a conviction under section 2705, the Commonwealth
       must prove that the defendant had an actual present ability to
       inflict harm and not merely the apparent ability to do so.
       Danger, not merely the apprehension of danger, must be
       created.   The mens rea for recklessly endangering another
       person is a conscious disregard of a known risk of death or great
       bodily harm to another person. Brandishing a loaded firearm
       during the commission of a crime provides a sufficient basis on
       which a factfinder may conclude that a defendant proceeded with
       conscious disregard for the safety of others, and that he had the
       present ability to inflict great bodily harm or death.

Commonwealth v. Hopkins, 747 A.2d 910, 915-16 (Pa. Super. 2000)

(citations and quotation marks omitted; emphases added).

       In this case, the trial court found:

       [T]he question for the jury to determine, particularly in light of
       the crime charged and the anticipated defense,[5] is whether the
       mechanical operation of the firing mechanism in [Appellee’s]
       weapon prevented [his] conduct from placing [the F.s] in danger
       of death or serious bodily injury. Whether [Appellee] safely
       handled his firearm is simply not a fact of consequence in this

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5
  In the brief in support of his pre-trial motion, Appellee asserted that his
weapon was incapable of causing actual harm at the time of the incident
because “[h]e . . . had a safety mechanism in place for his firearm that day
by having an empty cylinder under the hammer of the revolver.” (Appellee’s
Brief in Support of Pre-Trial Motion, 1/17/16, at 11).




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       case, as [Appellee] does not seem            to   dispute   that   he
       intentionally brandished the weapon.[6]

(Trial Ct. Op., at 8-9).

       Based on our precedent, we agree with the reasoning of the trial court

that the relevant inquiry is not, if Appellee safely handled weapons, but

rather, if the gun used in this incident “had an actual present ability to inflict

harm.” Hopkins, supra at 915 (citation omitted). Therefore, we conclude

it did not abuse its discretion in excluding Detective Boheim’s testimony

about the safe handling of firearms, absent Appellee opening the door to

such testimony, and limiting it to “the functioning of the firearm itself.”

(N.T. Proceedings, at 10); see also Mendez, supra at 260.                      The

Commonwealth’s first issue lacks merit.

       In its second issue, the Commonwealth challenges the trial court’s

denial of its motion for a continuance. (See Commonwealth’s Brief, at 17-

20). This claim does not merit relief.7

       Our standard of review of this issue is well-settled:

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6
  At the November 1, 2016 proceedings, the trial court added the caveat that
“if [Appellee] slips in testimony that gives an opinion on safe handling, he’s
potentially opening the door, and then I’ll allow Detective Boheim to be re-
called.” (See N.T. Proceedings, at 10).
7
  We agree with Appellee’s observation that, as a practical matter, by
appealing to this Court, the Commonwealth availed itself of the requested
continuance in spite of its being denied by the trial court. (See Appellee’s
Brief, at 8 n.1). However, we conclude that the trial court did not abuse its
discretion in denying the continuance request.



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            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 that discretion. [A]n abuse of
      discretion is not merely an error of judgment. Rather, discretion
      is abused when the law is over-ridden or misapplied, or the
      result of partiality, prejudice, bias, or ill-will as shown by the
      evidence or the record.         The grant of a continuance is
      discretionary and a refusal to grant is reversible error only if
      prejudice or a palpable and manifest abuse of discretion is
      demonstrated.

Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011), appeal

denied, 32 A.3d 1275 (Pa. 2011) (citation omitted). Further, “[i]n reviewing

a denial of a continuance, the appellate court must have regard for the

orderly administration of justice[.]” Id. (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 assembling the witnesses, lawyers,
      and jurors at the same place at the same time, and this burden
      counsels against continuances except for compelling reasons.
      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[.] . . .

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016) (citations

and quotation marks omitted).

      Here, in August 2016, the trial court granted Appellee’s motion for a

continuance, with the concurrence of the Commonwealth, and scheduled the

trial for the November term, as requested. (See Motion to Continue Trial to

the November Trial Term, 8/12/16, at unnumbered page 5, Certificate of

Concurrence/Nonconcurrence; Order, 8/16/16). Nearly three months later,

on the day scheduled for jury selection, the Commonwealth requested a

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continuance due to the unavailability of Detective Bonheim during the trial

court’s November 2016 trial term. (See N.T. Proceedings, at 3-4; see also

Commonwealth’s Brief, at 9).          In denying the request, the trial court

observed:

     For multiple reasons I have to deny that.      This case was
     continued from at least September when it was previously listed,
     so this case is not coming as a surprise to anybody. Now, a
     motion for . . . a continuance on the eve of trial, my initial
     response is you’ve got to be kidding me. I’m booked out into
     January now, just for hearings─

                                  *      *   *

     . . . The other problem is that [Appellee] is a former supervisor
     in Stroud Township[.] . . . [I] think that is the genesis of all of
     the other judges’ [recusal] issues. . . . I would move this if I
     could, but I can’t, because I have a primarily civil docket. I have
     civil trials scheduled every month through September [2017.] . .
     . So, its not that I don’t want to move it, it’s just it can’t happen,
     and I’m not pushing this case out for some date come the fall of
     2017, that’s not happening. Again, this was continued from
     September, if somebody was going to have a problem you
     needed to find that out from your witnesses and so forth well in
     advance and you needed to address it in a more timely manner.
     I can’t move it[.] . . .

(N.T. Proceedings, at 4-5).

     Based on the foregoing and our liberal standard of review, we cannot

conclude that the trial court demonstrated “prejudice or a palpable and

manifest abuse of discretion” where the Commonwealth made the eleventh

hour continuance request months after concurring to the November trial

term, and a trial could not be re-scheduled for nearly a year due to the




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court’s docket.   Hansley, supra at 418 (citation omitted); see also

Norton, supra at 143. The Commonwealth’s second issue lacks merit.

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2017




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