Commonwealth, Aplt. v. Brooks, W. ( 2014 )

[J-76-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 7 MAP 2014
:
Appellant : Appeal from the order of Superior Court at
: No. 1135 EDA 2012 dated April 10, 2013,
: reconsideration denied June 12, 2013,
v. : reversing and remanding the Delaware
: County Court of Common Pleas, Criminal
: Division, judgment of sentence at No.
WILLIE LEE BROOKS, : 23-CR-0000811-2009 dated October 25,
: 2011.
Appellee :
: ARGUED: September 9, 2014
OPINION
MR. CHIEF JUSTICE CASTILLE DECIDED: November 20, 2014
This is an appeal by the Commonwealth of Pennsylvania from the order of the
Superior Court which reversed the judgment of sentence imposed on appellee Willie Lee
Brooks and remanded for a new trial on grounds that the trial judge erred in denying a
continuance request made by appellee, on the day scheduled for jury selection, on the
ground that he wanted to represent himself pro se. The case involves the intersection of
principles involving the right to self-representation and the discretionary authority of the
trial court in managing trial schedules. Because we find that the trial court did not abuse
its discretion in the circumstances which we further examine below, we vacate the
Superior Court’s order and remand for that court to consider appellee’s remaining
appellate issues.1
On December 6, 2006, officers from the Radnor Township Police Department
responded to a report of a suspicious person in the rear yard of a private residence.
When the officers arrived, an unknown individual discharged a weapon in their direction
and fled the scene. The shooter remained at large until July 13, 2007, when appellee
was arrested for another offense. During their investigation of the other offense, the
police found evidence that linked appellee to the 2006 Radnor shooting and, on January
30, 2009, appellee was charged with crimes related to that shooting. After a preliminary
hearing in the Delaware County Court of Common Pleas, appellee was bound over for
trial, and counsel was appointed to represent him. 2 The pre-trial conference was
repeatedly continued, and a scheduled July 18, 2011 trial date (nearly two and one-half
years following the lodging of charges) was continued to August 15, 2011. On August
16, 2011, the day jury selection was to begin, appellee asked for leave to represent
himself, and for a continuance in order to prepare his defense. After a colloquy, the trial
judge, the Honorable Michael F. X. Coll, concluded that the request was a delaying tactic,
and denied a continuance. Given the denial, appellee acceded to being represented by
appointed counsel, a jury was selected, and the case proceeded to trial as scheduled.
On August 19, 2011, the jury found appellee guilty of various counts of criminal attempt to
commit homicide, possession of firearm prohibited, possession of an instrument of crime,
1 Because the panel awarded a new trial on the continuance issue, it did not reach
appellee’s additional issues, which included challenges to the jury selection process and
the trial court’s ruling regarding the admissibility of prior convictions.
2 At the time, appellee was incarcerated in the Federal Detention Center in Philadelphia.
[J-76-2014] - 2
and loitering and prowling at night.3 Appellee was sentenced on October 25, 2011; a
post-sentence motion was filed and denied. Appellee then filed a notice of appeal to the
Superior Court.
In its Rule 1925(a) opinion,4 the trial court explained that it properly denied a
continuance because appellee’s “stated desire to represent himself was a mere ploy for a
delay of the trial.” Tr. Ct. Opinion at 6. The court noted that appellee’s trial counsel
“had a year to prepare for trial, during which time he gathered quite a bit of evidence,” and
counsel had declared himself to be “extraordinarily well-prepared.” Id. at 7, citing N.T.
8/16/11, 5, 8. The court further stated that the “dockets indicate that the pre-trial
conference was continued six times and trial was continued from July 18, 2011 to August
15, 2011.” The court also deemed it significant that: “Once [appellee] learned that this
Court would not continue the matter again, he withdrew his request to represent himself.
It is clear to this Court that [appellee’s] request was a mere gambit for a delay of the trial.”
Id.
The Superior Court reversed in a published panel opinion authored by Judge
Lazarus, and joined by Judges Ott and Strassburger. Commonwealth v. Brooks, 66
A.3d 352 (Pa. Super. 2013). The panel ruled that the trial court erred in denying
appellee’s request for a continuance in order to represent himself. The panel reasoned
that appellee’s request was made before jury selection, and was therefore timely. The
panel further explained its view that consideration of intent in making a continuance
request was “critical, and the trial court must determine if the motion to proceed pro se
with a continuance is a reasonable attempt to delay the proceedings for the legitimate
3 18 Pa.C.S. §§ 901, 907, 6105, 5506.
4 See Pa.R.A.P. 1925(a) (upon receipt of notice of appeal judge shall file opinion of
reasons for rulings on errors complained of by appellant).
[J-76-2014] - 3
purpose of preparing a defense, or if it is intended to obstruct the process of justice and
frustrate the operation of the court.” 66 A.3d at 356. The panel determined that there
was little support in the record for the trial court’s determination that appellee’s request
was a “mere ploy” to delay his trial:
While we must give deference to the trial court, we can find little
support in the record for the contention that Brooks was engaged in an
improper attempt to delay his trial. Of the six continuance motions, three
suggested that Brooks was not even in the courtroom, as in the place of
Brooks' signature is written “ATTY WILL NOTIFY DEF.” Much of the
documentation regarding these motions is incomplete, and thus it is difficult
for this Court to discern from the original record the reasons for each
continuance. There is, however, evidence on the record that the
proceedings were delayed by waiting for federal authorities to forward
relevant records. . . . On the first day of trial, Brooks' counsel told the court
that four days earlier he had received “140 pages of transcripts from
Federal Court which [Brooks] had not had a chance to read.” This also
supports a finding that there was delay in obtaining documentation
regarding the related federal prosecution of Brooks. None of this suggests
Brooks was engaged in an improper attempt to delay or frustrate the
proceedings.
Id. at 358 (record citations omitted).
The panel then held that “[w]here the court finds that the defendant is engaging in
improper delay, the court must place sufficient evidence on the record to support this
conclusion.” Id. at 359. After concluding that the trial court here abused its discretion
when it failed to place such evidence on the record, the panel further held that “absent a
compelling reason supported by the record,” the denial of appellee’s continuance request
violated his Sixth Amendment right to represent himself under Faretta v. California, 422
U.S. 806 (1975). The panel thus reversed the judgment of sentence and remanded for a
new trial. Id.
The Commonwealth filed a petition for allowance of appeal, which this Court
granted to consider the following issue: “Where the trial court concludes a continuance
[J-76-2014] - 4
request was made solely for purpose of delay, must the court support its decision by
placing evidence on the record or articulating ‘compelling reasons’?” Commonwealth v.
Brooks, 86 A.3d 830, 831 (Pa. 2014).
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. Randolph, 873 A.2d 1277, 1281 (Pa.
2005) (quoting Commonwealth v. McAleer, 748 A.2d 670, 673 (Pa. 2000) (internal
citations omitted)). In contrast, our review of the Superior Court’s determination that the
trial court abused its discretion here is not deferential, for we are identically situated to the
Superior Court when reviewing the exercise of the trial court’s discretion.
The Commonwealth argues that the Superior Court erred because the party
requesting the continuance (here, appellee) has the burden to justify the request, and the
trial court has no burden. According to the Commonwealth, appellee had a year to
prepare for trial and his last-minute request for continuance was untimely, insincere, and
pursued only for purposes of delay. The Commonwealth posits that appellee asserted
his right to represent himself only as a bargaining device for a continuance. The
Commonwealth contends that the published Superior Court decision here devised a new
standard that: 1) creates a presumption that a last-minute request to proceed pro se
should be granted; 2) requires the trial court to demonstrate a “compelling reason” for
[J-76-2014] - 5
denying such continuance; and 3) assigns to the trial court the burden of placing
“sufficient evidence” on the record to support its conclusion that the defendant is
engaging in improper delay. The Commonwealth acknowledges the right of a defendant
to represent himself at trial as recognized in Faretta, but notes that the invocation of the
right to self-representation must be timely and unequivocal, and further stresses that,
unlike appellee, the defendant in Faretta made his request to represent himself “weeks
before trial.” See 422 U.S. at 835.
The Commonwealth further stresses that the trial court has the discretion to grant
or deny a continuance; in exercising that discretion, the court must weigh the defendant’s
right to self-representation against the governmental interest in the efficient
administration of justice. See Randolph, 873 A.2d at 1281-82. See also Morris v.
Slappy, 461 U.S. 1, 11-12 (1983) (Circuit Court of Appeals granted federal habeas corpus
relief to state court prisoner on ground that state trial court’s denial of continuance to
defendant six days before trial in order to substitute newly appointed counsel violated
right to counsel; in reversing, Supreme Court observes: “broad discretion must be
granted trial courts on matters of continuances; only an unreasoning and arbitrary
‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the
right to the assistance of counsel.”). The Commonwealth argues that here, where
appellee requested a continuance on the morning of trial, the court’s denial of that request
was well within its discretion, and the Superior Court’s reversal erroneously established a
new “presumption in favor of last-minute continuance requests to proceed pro se.”
Commonwealth’s Brief at 17. The Commonwealth further stresses that the Superior
Court’s new standard is not rooted in this Court’s rules or precedents, but rather is
[J-76-2014] - 6
bottomed upon an outdated, non-binding decision from the U.S. Court of Appeals for the
Ninth Circuit. See Armant v. Marquez, 772 F.2d 552 (9th Cir. 1985) (in certain
circumstances denial of continuance renders right to self-representation meaningless).
The Commonwealth adds that Armant does not even control in the Ninth Circuit any
longer. See, e.g., Kincaid v. Runnels, 450 F. Appx. 649, 650-51 (9th Cir. 2011) (no
violation of Sixth Amendment right to self-representation where trial court denied request
for continuance made six days before jury selection); U.S. v. Garrett, 179 F.3d 1143, 1145
(9th Cir. 1999) (finding no abuse of discretion and affirming trial court’s denial of
day-of-trial continuance request).
The Commonwealth also argues that the Superior Court mistakenly determined
that the denial of a continuance interfered with appellee’s right to proceed pro se.
Indeed, the Commonwealth claims, appellee’s request to represent himself was
equivocal: it was employed as a bargaining tool, and notably, when the court denied the
continuance, appellee abandoned his attempt to represent himself. Commonwealth’s
Brief at 19-20 (citing Commonwealth v. Davido, 868 A.2d 431, 439-40 (Pa. 2005) for
proposition that defendant’s request to represent himself is deemed equivocal where
request was tied to request for new counsel, and where, when continuance was denied,
defendant clearly stated he did not wish to proceed pro se). Along these lines, the
Commonwealth adds, appellee’s asserted need to review his own statements reflected
in the transcript of the sentencing allocution in a related federal criminal matter5 did not
present a compelling reason for a continuance, and the trial court correctly recognized
5 Appellee was subject to federal firearms charges related to his illegal possession of a
handgun during the incident involved in this appeal, to which appellee pled guilty and for
which he was sentenced.
[J-76-2014] - 7
appellee’s request as the “gambit for delay” that it was. Commonwealth’s Brief at 21,
citing Tr. Ct. Opinion at 7. And, adverting to the standard for assessing discretionary
decisions, the Commonwealth argues that it is clear that the trial court’s ruling was not
motivated by prejudice, bias or any other improper factor that would call into question its
discretionary judgment. Id. at 22-23 & n.1 (citing, inter alia, Commonwealth v.
Sandusky, 77 A.3d 663, 672 (Pa. Super. 2013) (trial court’s explanation for denying
continuance “denotes a careful consideration of the matter” and “does not reflect a
myopic insistence upon expeditiousness in the face” of request; it was not arbitrary
denial) and U.S. v. Wright, 682 F.3d 1088, 1090 (8th Cir. 2012) (denial of last-minute
continuance request which created “Hobson’s choice between either proceeding with
appointed counsel or representing himself with no time to prepare” was predicament of
defendant’s own making)).
Appellee responds that case law and the Pennsylvania Rules of Criminal
Procedure require that the trial court support a decision to deny a continuance. In
appellee’s view, the trial court’s explanation that appellee’s request came just before the
scheduled jury trial commenced, that counsel had represented appellee for almost a year,
and that counsel was well-prepared, is insufficient support for the denial. Appellee
argues that the trial court should have discussed the reasons appellee cited for his
dissatisfaction with his counsel, as well as a “discrepancy” respecting discovery materials
delivered to counsel before trial. 6 Appellee also agrees with the Superior Court’s
holdings that the trial court should have placed evidence supporting its decision to deny a
6 The discrepancy to which appellee refers concerns the length of a transcript from
appellee’s related federal criminal trial. See infra n.8.
[J-76-2014] - 8
continuance on the record, and that in the absence of such further explanation, the trial
court’s ruling was insufficiently supported.
Appellee relies on Pa. R. Crim. P. 106(C), which states, in part, that “the judge
shall on the record identify the moving party and the reasons for granting or denying the
continuance.” 7 Appellee further places heavy reliance on the panel decision in
Commonwealth v. Prysock, 972 A.2d 539 (Pa. Super. 2009), where, among other points,
the Superior Court observed that prior decisions noted that detailed factual findings by the
trial court to support its denial of a continuance are to be “commended,” and “in their
7 In relevant part, Rule 106 provides:
Rule 106. Continuances in Summary and Court Cases
(A) 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.
****
(C) When the matter is in the court of common pleas, the judge shall on the
record identify the moving party and state of record the reasons for granting
or denying the continuance. The judge also shall indicate on the record to
which party the period of delay caused by the continuance shall be
attributed and whether the time will be included in or excluded from the
computation of the time within which trial must commence in accordance
with Rule 600.
(D) A motion for continuance on behalf of the defendant shall be made not
later than 48 hours before the time set for the proceeding. A later motion
shall be entertained only when the opportunity therefor did not previously
exist, or the defendant was not aware of the grounds for the motion, or the
interests of justice require it.
****
Pa. R. Crim. P. 106.
[J-76-2014] - 9
absence,” this Court had found an abuse of discretion. Id. at 544 (citing Commonwealth
v. Tyler, 360 A.2d 617 (Pa. 1976)); see also U.S. v. Welty, 674 F.2d 185, 188-89 (3d Cir.
1982) (where defendant requests new counsel or seeks to waive right to counsel on eve
of trial, court must engage in at least “minimal inquiry” to determine whether reasons for
request constitute good cause and are thus sufficiently substantial to justify continuance;
reversal warranted because district court made no inquiry “as to the reason for Welty's
dissatisfaction with his assigned counsel and little inquiry into whether Welty's decision to
proceed pro se was made knowingly and intelligently.”).
Appellee asserts that the matter could be remanded to the trial court for a further
consideration of appellee’s request to represent himself; appellee further indicates that if
the matter is remanded, “cooler heads might prevail” and lead to some form of non-trial
final disposition. Appellee’s Brief at 17. But, his primary position is that the Superior
Court should be affirmed. In appellee’s view, the record does not support the trial court’s
decision because: 1) this was appellee’s first request for a continuance; 2) he indicated a
legitimate concern about his attorney, which was not resolved by the trial court; 3) no
prejudice or opposition was stated by the Commonwealth; 4) he could not have perceived
that his counsel was not doing enough for him until trial was approaching; 5) the period of
time from arraignment to the continued trial listing was approximately ten months, a
relatively short time for a serious crime; 6) the trial court did not inquire about how much
time he might need to prepare; and 7) he did not act in a disruptive fashion. Appellee
argues that these circumstances outweigh the trial court’s stated reasons for denying the
continuance.
[J-76-2014] - 10
In reply, the Commonwealth notes that Prysock and most of the other cases cited
by appellee are not binding on this Court, and, in any event, they are unpersuasive. The
Commonwealth argues instead that Commonwealth v. Novak, 150 A.2d 102 (Pa. 1959),
is apt. In that case, the defendant made a day-of-trial motion to change counsel. This
Court affirmed the trial court’s decision to deny the request, holding that requiring the
court to grant the request “would shackle, not promote, justice.” Id. at 110. The
Commonwealth also argues that there is no need for remand, where the record and the
trial court’s Rule 1925(a) opinion are sufficient for appellate review.
Our review of the record reveals the following. The initial July 18, 2011 trial date
was continued for four weeks, until August 15. On August 16, the day set for jury
selection, appellee appeared in court with his appointed counsel and presented a waiver
of counsel document, about which the trial judge proceeded to colloquy appellee. When
asked whether he would proceed to trial with counsel in the absence of a continuance in
order to prepare to proceed pro se, appellee decided that he would not represent himself:
“I have to, I have no option but to. . . . what I want to do I can’t do.” N.T. 8/16/11, 4.
When the court requested confirmation that appellee was seeking “to have a delay in the
beginning of this trial so that you can prepare in your own estimation as a private attorney
to represent yourself,” appellee responded “Yes.” Id. at 5. The following exchange then
occurred:
THE COURT: Q You have already had well over a year as far as I know
working with Mr. Taggart [appointed trial counsel] who has obtained a lot of
evidence, a lot of discovery and has prepared for trial and you have
prepared with him. So I am not going to give you a continuance or a delay
at this point.
[APPELLEE]: I understand that, that is why I said I have no option but to go
with Mr. Taggart at this point in time.
[J-76-2014] - 11
THE COURT: All right, Mr. Taggart are you able and willing to step in and
represent and have Mr. Brooks be your client?
MR. TAGGART: I am ready to proceed as I always have been. We
reviewed Rule 121 this morning. My only hesitation with proceeding is that
he does have a right to represent himself. As I have said before, though, I
am ready to proceed.
Id. at 6.
The court then asked appellee several times more if he wanted to proceed with
counsel’s representation, and appellee stated each time that he had no option given that
he was not allowed a continuance to prepare to represent himself, and to have additional
access to the prison law library. On further questioning, counsel again advised that he
was ready to proceed, and added that appellee’s request to proceed pro se was “news” to
him, although appellee had told counsel that he had written to the court “several weeks”
earlier regarding his request. (The record, including the trial court’s opinion, contains no
indication that appellee had contacted the court prior to the day of trial regarding his
purported desire to proceed pro se.) The court reiterated that the case had been on the
trial list and counsel reiterated his preparedness. Id. at 8-9.
The court again asked appellee if he was ready to proceed with counsel, and the
following exchange took place:
[APPELLEE]: If Mr. Taggart has prepared my case to a fine degree how
come we have never had a conference pertaining to (inaudible) what is
going to be - asked of the witnesses or anything of - that nature?
THE COURT: Mr. Taggart have you talked these things over with your
client?
MR. TAGGART: Your Honor [appellee] and I have discussed what I believe
the evidence in the case will be, who I believe some of the witnesses will be,
what I believe those witnesses will have to testify to. And what my
[J-76-2014] - 12
responses or my questions to those people will be. We have talked in that
sense all aspects of what I expect the Commonwealth to represent and how
I expect to respond to it. And we have spoken about that several times.
THE COURT: Have you spoken with him about any possible defense that
he might have?
MR. TAGGART: Yes.
THE COURT: Does he have any witnesses that he wants to call?
MR. TAGGART: No.
THE COURT: All right you are going to proceed with Mr. Taggart as your
attorney.
MR. TAGGART: Your Honor may I place a couple of comments on the
record before we go on?
THE COURT: Sure.
MR. TAGGART: Your Honor [appellee] as you know expressed to me on
Friday and to the Court earlier that he wished to proceed in this case
representing himself. Friday was the first I heard about that.
Commonwealth versus [El] which is at 977 A.2d [1158,] it is a Pennsylvania
Supreme Court case from 2009, says that a criminal Defendant has the
right to represent himself and that he has a right -- in a jury trial he has a
right to make that pronouncement up until the time where meaningful
proceedings have taken place in the case. The case describes meaningful
proceedings as the selection of a jury. We are not at that point yet. As I
said, this morning we went through the Rule 121 colloquy on the record.
[Appellee] had as I understand it two concerns today. First he wanted to
represent himself. Second, this morning he was presented by me with at
least 140 pages of transcripts from Federal Court which he had not had a
chance to read. I only read them myself on Sunday, received them on
Friday. As I said he had two concerns. One was that he wanted to be
able to represent himself and two, he wanted to have ample opportunity to
prepare to represent himself. He continues to express that desire today
and it seems to me he is only going ahead because he is not being afforded
the opportunity to prepare.
THE COURT: All right. What about the materials that were handed over to
you?
MR. TAGGART: I gave them to him this morning.
[J-76-2014] - 13
THE COURT: And Mr. Dugan [the trial prosecutor] did you narrow down the
scope of what you intended to present to the jury?
MR. DUGAN: I did, Your Honor, it was basically a transcript of the allocution
that [appellee]....
THE COURT: Right it was composed of [appellee]'s own words in Federal
Court?
MR. DUGAN: It was about seven pages. The Assistant United States
Attorney as well as [appellee].
THE COURT: Okay, all right, we are going to proceed. Mr. Taggart you
are going to represent [appellee].
Id. at 10-14.8
In light of this record, and mindful that our review is cabined by an abuse of
discretion standard, we find that the Superior Court erred in reversing the trial court. Just
as a criminal defendant has a constitutional right to counsel, so too does the defendant
have “a long-recognized constitutional right to dispense with counsel and to defend
himself before the court.” Commonwealth v. Starr, 664 A.2d 1326, 1334 (Pa. 1995),
citing Faretta v. California, 422 U.S. at 821. The right to self-representation, however, is
not absolute. See Commonwealth v. Staton, 12 A.3d 277, 282 (Pa. 2010);
Commonwealth v. Jermyn, 709 A.2d 849, 863 (Pa. 1998). Thus, to exercise this right,
the defendant must demonstrate that he knowingly, voluntarily and intelligently waives his
right to counsel. Starr, 664 A.2d at 1335. Moreover, the U.S. Supreme Court has held
8 There is a discrepancy between defense counsel’s account of the length of the
referenced federal transcript (140 pages) and that of the Commonwealth (7 pages). The
certified record contains a single transcript from federal proceedings, dated January 26,
2009, in the case of United States v. Brooks, which arose out of federal firearms charges
related to appellee’s illegal possession of a handgun during the incident involved in this
appeal, to which appellee pled guilty and for which he was sentenced. That transcript is
45 pages, consisting of the District Court’s guilty plea colloquy and appellee’s guilty plea.
There is no 140-page transcript containing appellee’s allocution prior to federal
sentencing in the certified record. As our explication below will make clear, the details
regarding such a transcript are not material to our determination in this appeal.
[J-76-2014] - 14
that the States do not infringe the right to self-representation by insisting upon
representation by counsel for those who are competent enough to stand trial but who still
suffer from severe mental illness to the point where they lack the mental capacity to
conduct trial proceedings by themselves. Indiana v. Edwards, 554 U.S. 164, 177-78
(2008).
In addition, as we noted at the outset, this appeal is not simply about the right to
self-representation; it also involves the timing of such requests, and the trial court’s
authority to manage its docket and trial schedule. This Court has recognized that a
request to proceed pro se must be made in a timely fashion, and not for purposes of
delay, and the request must be clear and unequivocal. See Davido, 868 A.2d at 438-40
(although timely, made well before trial was scheduled to begin, defendant’s request to
proceed pro se was equivocal; defendant had asked for new counsel and stated that his
request to proceed pro se was his “only alternative” if new counsel was denied, but on first
day of trial defendant agreed to proceed with current counsel). Accord Staton, 12 A.3d
at 283 (discussing timeliness in context of asserted right to self-representation on appeal;
noting that request for self-representation occurred after substantial delay, and as
appointed counsel was prepared to file timely appellate brief); Jermyn, 709 A.2d at 863
(discussing timeliness in context of request for self-representation for purposes of penalty
phase of capital trial; noting that courts have refused continuances based on need to
minimize disruptions, avoid inconvenience and delay, maintain continuity, and avoid
confusing jury). Obviously, defendants should not be permitted to unreasonably “clog
the machinery of justice” or hamper and delay the effort to administer justice effectively.
McAleer, 748 A.2d at 674, quoting from Commonwealth v. Baines, 389 A.2d 68, 70 (Pa.
1978). This Court has also noted that if a request to proceed pro se is “employed as a
[J-76-2014] - 15
bargaining device rather than as a clear demand for self representation,” its denial is not
an abuse of discretion. Davido, 868 A.2d at 440.
Appellee argues that there were unresolved issues between himself and counsel
that underlay his request to proceed pro se, apparently referring to his statement in the
transcript that he had not had a “conference” with counsel to discuss witnesses. But, as
our summary of the notes of testimony above reveals, the court had the benefit of specific
reassurances from trial counsel on that very subject. Counsel represented that he had
discussed such matters related to his representation with appellee, and after questioning
counsel, the court determined that counsel indeed was well-prepared; counsel, an officer
of the court, in fact pronounced himself “extraordinarily well prepared.” N.T. at 8. In this
regard, Morris v. Slappy, supra, involving the right to counsel and a continuance request,
is instructive. In Morris, the U.S. Supreme Court decided that a state trial court did not
abuse its discretion when it denied a continuance requested by the defendant, on the
third day of trial, so that he might be represented by a different lawyer, despite the fact
that his current trial counsel represented that he was prepared, and did not require
additional time. “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. On this record, it would have been
remarkable had the trial court not accepted counsel’s assurances.” 461 U.S. at 12. The
High Court added that “[n]ot every restriction on counsel’s time or opportunity to
investigate or to consult with his client or otherwise to prepare for trial violates a
defendant’s Sixth Amendment right to counsel.” Id. at 11.
Appellee also argues that he did not have sufficient time to review the transcript of
his own allocution prior to sentencing in his federal firearms possession case, the
transcript of which had apparently been provided by the federal court only just before the
[J-76-2014] - 16
rescheduled trial date below. The trial court also engaged this particular point, ultimately
dismissing the necessity to review the federal transcript as a ground for a continuance so
that appellee could represent himself. The court noted that the transcript merely
memorialized appellee’s own words and therefore any delay in securing the transcript
from that proceeding did not justify a further delay in the state court proceedings set to
begin. Moreover, appellee’s counsel told the court that he had an opportunity to review
the transcript, and in fact did so before appearing in court for trial, and was ready to try the
case. N.T. at 13.
The Superior Court’s decision in Sandusky, 77 A.3d 663, which is cited by the
Commonwealth, is also instructive. In that case, the trial court’s decision to deny a
counseled request for continuance (there was no issue involving self-representation) was
upheld on appeal despite the appellant’s claim that he had insufficient time to review
voluminous discovery from the Commonwealth – 9450 pages of documentation, 674
pages of grand jury transcripts, and 2140 pages from subpoenas duces tecum. Id. at
672. In its opinion, the trial court stated that “the defense team was assuredly capable”
of reviewing the discovery, and furthermore, that “the reality of our system of justice is that
no date for trial is ever perfect, but some dates are better than others. . . . on balance and
considering all the interests involved — the defendant's right to a fair trial, the alleged
victims' right [to] their day in court, the Commonwealth's obligation to prosecute promptly,
and the public's expectation that justice will be timely done — no date will necessarily
present a better alternative.” Id. The Sandusky court concluded that the trial court’s
explanation “denote[d] a careful consideration of the matter,” rather than a “myopic
insistence on expeditiousness,” and that the trial court had not abused its discretion or
acted arbitrarily in denying the continuance. Id. See also Randolph, 873 A.2d at 1282
(no abuse of discretion in denial of continuance where defendant waited until two
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business days before start of trial to apprise court of desire to have private counsel; trial
court properly weighed defendant’s right to counsel of his choice against state’s interest
in efficient administration of justice); Commonwealth v. Robinson, 364 A.2d 665, 672-76
(Pa. 1976) (after two continuances and fair opportunity to obtain private counsel, and
where retained private counsel failed to meet with defendant or appear for trial, no abuse
of discretion in denying additional continuance and allowing trial to proceed with
appointed counsel who was prepared to go forward); Commonwealth v. Novak, 150 A.2d
at 110 (defendant’s right to choose counsel must be exercised in reasonable time and
manner; defendant had two years in which to procure counsel to his liking and would not
be permitted to wait until very day of trial to choose new counsel).
Nor does the Superior Court’s decision in Prysock, repeatedly cited by appellee,
support a finding that the trial court abused its discretion here. In Prysock, the panel
noted that a trial judge, when faced with a defendant’s day-of-trial request for a
continuance to obtain new counsel, should conduct an “extensive inquiry” into the
underlying causes of the defendant’s expressed dissatisfaction with his counsel, and
whether the two had “irreconcilable differences.” 972 A.2d at 543. The panel further
determined that the trial record did not establish “that any of the factors which we rely on
in ascertaining whether the swift administration of justice would be vitiated by granting the
continuance were present.” Id. at 544. For example, the panel noted that counsel was
not appointed until thirty days before the originally scheduled trial date, and that there was
nothing in the record to show that the defendant was ever “personally warned that he
needed to retain [private] counsel by a specific date or that no further continuances would
be granted after the trial was initially continued.” Id. Moreover, the panel opined that
because the defendant was incarcerated, it was difficult for him to secure private counsel,
and it was thus “apparent that [the defendant] was not attempting to unreasonably delay
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the trial proceedings by claiming that he was going to retain private counsel when he had
no means or intention of doing so.” Id. The panel further faulted the trial court for not
inquiring into the nature of the asserted dispute between the defendant and his appointed
counsel, or how lengthy a continuance was required, and the panel also noted that the
Commonwealth had not objected to a continuance. The panel concluded that “while a
jury had already been partially chosen when retained counsel attempted to enter his
appearance, that fact is not dispositive.” Id. at 545. Because the record established
that the defendant’s “difficulties with appointed counsel pervaded every aspect of the
trial,” the Superior Court held that the trial court had abused its discretion when it denied a
continuance. Id.
Even assuming that Prysock was correctly decided – an issue we need not, and do
not, pass upon – that case is distinguishable. First, nothing in the record here shows that
appellee had “irreconcilable differences” with his appointed counsel, or received less than
competent representation. Rather, appellee claimed that his counsel had not met with
him to discuss the case to his satisfaction. The trial court inquired into that very point.
In fact, the record shows that counsel had discussed the case with appellee, and the trial
court concluded that counsel was well-prepared; there was no indication that any alleged
ongoing differences between appellee and appointed counsel would “pervade” the trial
here as they did in Prysock.
In addition, although appellee argues – as did the defendant in Prysock – that the
Commonwealth presented no opposition to the requested continuance, and that the trial
court did not inquire into how much time appellee would need to prepare to represent
himself, these points do not prove an abuse of discretion. The trial court is authorized to
manage its own trial schedule; the silence of the Commonwealth, or even the agreement
of the Commonwealth, does not control a judge’s exercise of discretion in such matters;
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and, in this case, the lawyers for both sides were ready to proceed to trial on this already
continued trial date. Moreover, there is some force to the Commonwealth’s argument on
appeal that the burden is upon the party requesting a continuance to support that request;
the trial court does not have an obligation to assume that the request must be granted,
and then probe the party (here, a defendant represented by counsel) for support for the
request, or to find weaknesses in the request. This is particularly so if the trial court –
which has the advantage of familiarity with the case and its history, and of observing in
person the defendant requesting a continuance to represent himself – believes that
further delay is the real reason for a day-of-trial request to represent oneself, a motivation
the defendant is unlikely to simply admit. That the trial court should not bear this burden
is even more so the case where, as commonly occurs and occurred here, the request to
self-represent is tied to an expression of dissatisfaction with appointed counsel.
In any event, the record in this case reveals that the trial court did more than simply
deny the request for a continuance. The court was aware of the circumstances
surrounding appellee’s request; the court’s colloquy of appellee, and its exchanges with
counsel, properly informed its exercise of discretion. Cf. Commonwealth v. El, 977 A.2d
1158, 1166 (Pa. 2009) (inquiry into defendant’s mid-trial request to proceed pro se was
not necessary before court denied continuance; court able to rule on request because it
had observed defendant with his counsel, was familiar with counsel's representation, and
defendant had never expressed any dissatisfaction with counsel).
Furthermore, notwithstanding the Prysock court’s determination that the fact that
the defendant’s request for a continuance there was made after a jury “had already been
partially chosen” was “not dispositive,” 972 A.2d at 545, this Court has repeatedly held
that the timing of requests relating to self-representation is an important factor in
considering whether a trial court abused its discretion in denying the request. See, e.g.,
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Davido, supra; McAleer, supra; Jermyn, supra. See also El, 977 A.2d at 1165 (request
to take on one's own legal representation after meaningful trial proceedings have begun
does not trigger automatic constitutional right to proceed pro se; decision instead is left to
sound discretion of trial court). Accord Staton, supra. Although the continuance
request here preceded jury selection, it is notable that it was not timely under Criminal
Rule 106(D), which specifically provides that a “motion for continuance on behalf of the
defendant shall be made not later than 48 hours before the time set for the proceeding.
A later motion shall be entertained only when the opportunity therefor did not previously
exist, or the defendant was not aware of the grounds for the motion, or the interests of
justice require it.” Pa. R. Crim. P. 106(D). Thus, the timing of a request, combined with
other circumstances, may support an experienced trial judge’s determination that a
request for a continuance was made for purposes of delay.
We are similarly unpersuaded by appellee’s argument that the “relatively short”
period of time from his preliminary hearing and arraignment to trial -- approximately
eleven months, beginning with the preliminary hearing in September 2010 and ending
with the continued trial date in August 2011 – shows that the trial court abused its
discretion. Appellee’s Brief at 23. Even if it is assumed that this was a “relatively short”
period in light of the nature of the crimes charged, appellee in that time had been
represented by the same appointed counsel, who had discussed the case with appellee,
and who had become “extraordinarily well prepared” to try the matter on the day set aside
by the court, the defense and the Commonwealth for trial. Respecting appellee’s
assertion that he “never acted in a disruptive fashion,” it is true that disruptive behavior
might affect a trial judge’s exercise of discretion, but the lateness of a continuance
request itself can be disruptive, as is recognized by the restriction in Rule 106(D); the
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defendant’s conduct need not be contumacious for a request to be disruptive and the
absence of such behavior does not warrant granting an eleventh-hour continuance.
Finally, appellee notes that this was his first request for a continuance, but even if
that were true, it would not mandate granting the request under the totality of the
circumstances here. In any event, the record does not support appellee’s claim that this
was his only request for a continuance; the record is at best ambiguous in this regard.
The Superior Court stated that “of the six continuance motions, three suggested that
Brooks was not even in the courtroom, as in the place of [appellee’s] signature is written
‘ATTY WILL NOTIFY DEF.’” 66 A.3d at 358. But, the fact that appellee may not have
been in the courtroom at the time of a continuance request does not necessarily mean
that one or more of the requests was not made by his counsel. The Superior Court
further indicated that part of the delay was due to the parties waiting for the arrival of
federal transcripts, but as we have noted, defense counsel reviewed those transcripts in
advance of trial and was not hampered in his preparation by their relatively late arrival.
Considering the totality of these circumstances, we cannot say that the trial court
abused its discretion in determining that appellee’s day-of-trial request for a continuance,
so that he could represent himself, should be denied, and the Superior Court erred in
concluding otherwise. It is clear that the Superior Court would have ruled differently than
the trial court here, and perhaps members of this Court would have, too; but that does not
establish an abuse of discretion. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007). Moreover, although there certainly is something to be said for more thorough trial
court explanations of the grounds for a decision – a practice that can obviate appeals and
narrow issues on appeal, and that creates a better record for review -- the Superior
Court’s approach was problematic to the extent it could be read as: creating a
presumption that a last-minute continuance request to proceed pro se should be granted,
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and to the extent that the decision appears to assign a burden upon the trial court to place
“sufficient evidence” of “compelling reasons” on the record to support a conclusion that a
defendant seeking a continuance in order to represent himself was engaged in an attempt
to delay the proceedings. 66 A.3d at 359. Even if not an optimum expression, the
record and the circumstances here, as we have described them above, are sufficient to
make clear that the trial court’s denial of the continuance request was not an abuse of
discretion.
Accordingly, we vacate the order of the Superior Court and remand to that court for
consideration of appellee’s remaining appellate issues. Jurisdiction is relinquished.
Former Justice McCaffery did not participate in the decision of this case.
Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice
Stevens join the opinion.
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