Com. v. Dean, L. ( 2019 )

J-S13012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
LARRY J. DEAN,
Appellant No. 667 WDA 2018
Appeal from the Judgment of Sentence Entered April 9, 2018
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000571-2017
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 21, 2019
Larry J. Dean (Appellant) appeals from the judgment of sentence of an
aggregate term of 65 to 193 years’ incarceration following a jury trial at which
Appellant was found guilty of two counts of corrupt organizations, 18 Pa.C.S.
§ 911(b)(3); two counts of criminal conspiracy to engage in corrupt
organizations, 18 Pa.C.S. § 911(b)(4); sixteen counts of delivery of a
controlled substance, 35 P.S. § 780-113(a)(30); and two counts of possession
with intent to deliver a controlled substance, 35 P.S § 780-113(a)(30).
Appellant challenges the denial of two motions to continue. After careful
review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S13012-19
Appellant was arrested on August 2, 2017, in connection with a
Pennsylvania State Police investigation that began in 2016 and involved the
shipment of methamphetamines from Arizona to Pennsylvania. Appellant was
one of many individuals arrested. A preliminary hearing took place on
November 3, 2017, and all charges were held for court. The court scheduled
an omnibus pre-trial hearing for February 8, 2018. Jury selection was
scheduled for March 2, 2018, and a five-day trial was to begin on March 19,
2018.
At the center of this appeal are Appellant’s two motions to continue jury
selection. On February 6, 2018, the first of these motions was filed,
requesting that Appellant’s attorney needed additional time to review the
“thousands of pages of discovery” already received plus the “additional
discovery yet to be received[.]” Appellant’s brief at 6. This motion also
claimed that the Commonwealth’s many witnesses had not been investigated
by the defense. This motion was denied on February 9, 2018. The second
motion to continue jury selection was filed on February 21, 2018, alleging that
Appellant “was evaluated by Louis S. Martone, M.D. and [Appellant’s] ability
to participate in his own defense cannot be definitively determined and that
[Appellant] required [] formal neurological medical testing[.]” Id.
Furthermore, the motion indicated that “additional medical records had to be
obtained.” Id. This motion was denied on February 21, 2018, the same day
it was filed. The trial took place as scheduled and resulted in Appellant’s
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conviction on 21 of the 22 counts initially charged.1 Sentencing took place on
April 4, 2018, and the court imposed the term of incarceration noted supra.
This appeal followed with Appellant raising the following single issue on
appeal:
Did the court abuse it’s [sic] discretion by denying [Appellant’s]
motions to continue the trial?
Appellant’s brief at 4.2
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, 529-30, 104 A.3d 466(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 assembling the witnesses, lawyers, and jurors
at the same place at the same time, and this burden counsels
against continuances except for compelling reasons.”
____________________________________________
1 One count charged under 35 P.S. § 780-113(a)(30) had been withdrawn.
2 In his concise statement of errors complained of on appeal, Appellant also
alleged error by the trial court “by requiring pretrial motions to be submitted
before the time allowed by rule[.]” See Appellant’s Concise Statement.
Appellant has abandoned this issue by failing to include it in his brief to this
Court.
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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.Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016).
Appellant argues that the two motions requesting continuances were
reasonable in that the court’s order requiring pretrial motions to be filed within
14 days after arraignment and trial to begin two months thereafter did not
provide enough time for counsel to prepare in light of the Commonwealth’s
year-long investigation. In essence, Appellant contends that “the trial court
did not allow enough time for [Appellant] to review the discovery and conduct
his own investigation of the items seized and witnesses who would be called
to testify against him.” Appellant’s brief at 10. Moreover, Appellant asserts
that his requests were reasonable, but that the court’s orders denying the
motions did not provide reasons for the denials, except to state that not
denying the motions would have caused unjustifiable expense and delay
without further explanation. Appellant concludes his argument by stating that
“[t]he Commonwealth spent a year gathering information and preparing this
matter for trial and [Appellant] got less than two months to review the
discovery and prepare for his defense, all the while being evaluated by [a]
doctor to determine his ability to participate in his own defense.” Id. at 11.
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In its opinion, the court noted that the initial request for a continuance
occurred more than a month before the scheduled trial. Thus, relative to the
first motion, the court determined that it was speculative that counsel “would
not have adequate time to prepare for trial thus [it] did not strike the [c]ourt
as ‘good cause’ for granting a continuance.” Trial Court Opinion (TCO),
9/21/18, at 1. The court further stated:
As for the second motion, [Appellant] sought additional time to
establish whether he was competent to stand trial. Dr. Louis S.
Martone evaluated him for that purpose and, finding the evidence
to be inconclusive, recommended formal neurological medical
testing. [Appellant] requested a continuance so he could
accomplish that[.] He renewed his motion immediately before
jury selection, at which time the [c]ourt explained why it was not
going to continue the trial for that speculative endeavor. Dr.
Martone certainly could not say [Appellant] was incompetent, and
during his pre-jury selection colloquy, [Appellant] all but
disproved his own claim in that regard. Explaining his decision
not to be present during voir dire, he stated that he became
confused under pressure, not because of an underlying
neurological disorder, but because he sometimes experienced
loud ringing in his ears and headaches so severe that they affected
his cognitive abilities. He thus confirmed, albeit inadvertently,
that the circumstances which led his attorney to request a
competency evaluation in the first place did not stem from the sort
of psychological disorder that may render one unable to aid in his
own defense.
Also telling was the manner in which [Appellant] conducted
himself at trial, where he repeatedly demonstrated that he
understood what was happening, who the witnesses were and
what they were saying, and, in at least one instance, what
particular evidence his attorney could use to attempt to discredit
them. Even throughout four very long and arduous days of trial,
therefore, [Appellant] showed no signs of incompetency such that
a continuance was necessary to allow for additional testing beyond
Dr. Martone’s evaluation.
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There being no basis to conclude that the [c]ourt’s denial of
[Appellant’s] continuances meant either that he had insufficient
time to prepare for trial or that it forced an incompetent man to
stand trial, therefore, it was no[t] error to do so. Accordingly,
neither of his issues warrants relief and the judgment of sentence
should be affirmed.
TCO at 2 (citations to record omitted).
Our review of the record reveals support for the court’s findings as to
the reasons it asserted for denying Appellant’s motions for continuances.
Particularly, the court’s determination that Appellant evidenced an ability to
aid in his own defense overcame the allegation that Appellant was not
competent to stand trial. Moreover, the court’s conclusion that Appellant’s
counsel’s request for more time to prepare was not supported by any
allegation that anything differently would have been done in preparation for
trial. Appellant only suggests that the manner in which the case moved
forward prejudiced his right to a fair trial. The court’s conclusion that this
assertion was speculative at best is not belied by anything Appellant argues.
Accordingly, we conclude that the trial court did not abuse its discretion in
denying the two motions for continuances.
Judgment of sentence affirmed.
Judge Ott joins this memorandum.
Judge Strassburger files a dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2019
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