Com. v. Rock, Z. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZACHARY ANDREW ROCK :
:
Appellant : No. 203 WDA 2020
Appeal from the Judgment of Sentence Entered December 13, 2019
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000861-2019
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 05, 2021
Zachary Andrew Rock (Appellant) appeals from the judgment of
sentence imposed after the trial court convicted him of two counts of driving
under the influence of alcohol (DUI), and the summary offense of disregarding
a traffic lane.1 Upon review, we are constrained to vacate Appellant’s sentence
and remand for further proceedings.
On January 6, 2019, at approximately 4:28 a.m., Pennsylvania State
Trooper Shaun Milkovich was dispatched to a single vehicle crash at 777 East
Butler Road in Butler County. Affidavit of Probable Cause, 4/3/19. While en
route, Trooper Milkovich was advised that Appellant, the operator of the
vehicle, was at his grandfather’s house where he had walked to report the
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1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), and 3309(1).
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crash, because he did not have a cell phone. Id. Trooper Milkovich responded
to the residence and transported Appellant back to the crash scene. Id.
Trooper Milkovich noted that Appellant had an odor of alcohol on his
breath, as well as bloodshot eyes and slurred speech. Id. Trooper Milkovich
had Appellant undergo standard field sobriety tests, which indicated Appellant
“was under the influence of alcohol to the extent that he was unable to safely
operate a motor vehicle.” Id. Appellant was transported to the State Police
barracks, where a chemical breath test was administered at 5:43 a.m., and
revealed a blood alcohol content of .142%. Id. On May 13, 2019, the
Commonwealth filed a complaint charging Appellant with the above offenses.
Appellant appeared for a non-jury trial on November 12, 2019. At the
outset, Appellant’s counsel verbally requested a continuance because “a key
defense witness is unavailable.” N.T., 11/12/19, at 3. Counsel identified the
witness as Appellant’s grandfather, James Rock. Id. Counsel stated that Mr.
Rock was “eighty years old and is very sick.” Id. The Commonwealth
objected, stating that they normally would not object, but had “brought the
Trooper in today specifically.” Id. The trial court, without pause or
explanation, immediately and summarily denied the request and the case
proceeded to trial. Id. at 3-4. Two witnesses, Trooper Milkovich and
Appellant, testified. The trial court found Appellant guilty of all three charges.
On December 13, 2019, the trial court sentenced Appellant to 30 days
to 6 months of incarceration. Appellant filed a timely post-sentence motion,
which the trial court denied on January 7, 2020. This timely appeal followed.
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Both the trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925.
Appellant presents two issues for review:
I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND
PREJUDICED APPELLANT’S RIGHT TO A FAIR TRIAL BY
DENYING DEFENSE COUNSEL’S MOTION FOR A
CONTINUANCE WHICH WAS REQUESTED DUE TO THE
UNAVAILABILITY OF APPELLANT’S GRANDFATHER, JAMES
ROCK, A KEY DEFENSE WITNESS?
II. WHETHER THE COMMONWEALTH PRESENTED SUFFICIENT
EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT
THE APPELLANT WAS GUILTY OF DRIVING UNDER THE
INFLUENCE OF ALCOHOL SINCE THE COMMONWEALTH
FAILED TO PROVE THAT APPELLANT WAS IMPAIRED BY
ALCOHOL AT THE TIME OF THE ACCIDENT AND FAILED TO
REFUTE EVIDENCE THAT HE CONSUMED ALCOHOL
BETWEEN THE TIME OF THE ACCIDENT AND THE TIME OF
THE BREATH TEST?
Appellant’s Brief at 9.
In his first issue, Appellant claims the trial court abused its discretion
when it denied his request for a continuance. After careful consideration, we
agree.
The Rules of Criminal Procedure provide a trial court “may, in the
interests of justice, grant a continuance, on its own motion, or on the motion
of either party.” Pa.R.Crim.P. 106(A). Rule 106(D) states:
(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 motion, or the interests of justice
require it.
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Pa.R.Crim.P. 106(D).
“Appellate review of a trial court’s continuance decision is deferential.”
Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016) (citation
omitted). “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.” Id. “[W]e will not reverse a denial of a motion for a
continuance in the absence of prejudice.” Commonwealth v. Ross, 57 A.3d
85, 91 (Pa. Super. 2012) (citations omitted).
We have explained:
. . . trial 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.
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. . . .
When deciding a motion for a continuance to secure a material
witness the trial court is guided by the following factors:
(1) the necessity of the witness to strengthen the party’s case;
(2) the essentiality of the witness to the party’s case; (3) the
diligence exercised to procure the witness’ presence at trial; (4)
the facts to which the witness could testify; and (5) the likelihood
that the witness could be produced at the next term of court.
Norton, 144 A.3d at 143-44 (citation omitted).
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It is not disputed that Appellant sought a continuance because his 80-
year-old grandfather was “very sick” and unavailable to testify on the day of
trial.2 Appellant argues:
[T]he trial court abused its discretion when it denied
[defense counsel’s] request to continue the trial due to the fact
that [Mr. Rock], a key defense witness, was medically unable to
attend the hearing and testify on the day of trial. Specifically,
[defense counsel] was not aware of Mr. Rock’s medical condition
until the day before the trial so his request to continue the trial
was still timely under Pa.R.Crim.P. Rule 106(D).
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2 We note that the issue of witness availability is not uncommon. Most case
law arises in the context of Rule 600 prompt trial claims; we cite the cases
below simply to illustrate this Court’s treatment of various instances that
caused a trial to be continued:
“The Commonwealth cannot be held to be acting without due diligence
when a witness becomes unavailable due to circumstances beyond its
control.” Commonwealth v. Hyland, 875 A.2d 1175, 1191 (Pa. Super.
2005). See also Commonwealth v. Kostra, 502 A.2d 1287, 1291 (Pa.
Super. 1985) (“So long as [a] witness[’s] unavailability is through no fault
of the Commonwealth, ... an extension is proper.”). The Superior Court
has explained that, “[i]t is well settled that when a witness becomes
unavailable ... due to illness, vacation or other reason not within the
Commonwealth’s control ... an extension of time is warranted.”
Commonwealth v. Corbin, 568 A.2d 635, 638 (Pa. Super. 1990).
Specifically, the Superior Court has determined that a witness’
unavailability to testify was beyond the control of the Commonwealth in
a variety of circumstances. See Commonwealth v. Staten, 950 A.2d
1006, 1010 (Pa. Super. 2008) (unavailability of the arresting police
officer who had been placed on a separate, specific work assignment for
date of trial was beyond control of the Commonwealth and did not defeat
a record of due diligence for speedy trial purposes); Kostra, 502 A.2d at
1291 (illness of Commonwealth witness); Commonwealth v. Reihart,
449 A.2d 35 (Pa. Super. 1982) (Commonwealth witness seriously ill);
Commonwealth v. Caden, 473 A.2d 1047, 1052 (Pa. Super. 1984)
(Commonwealth’s essential eyewitness ill and hospitalized); Hyland,
supra (military deployment of police officer).
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In addition, the factors that the trial court must consider in
granting or denying a continuance request favor a continuance.
For instance, Mr. Rock was necessary and essential to strengthen
[] Appellant’s defense because Mr. Rock would have provided
exculpatory facts that corroborated Appellant’s version of events.
Moreover, [defense counsel] was diligent in procuring Mr. Rock’s
presence for trial because he had an investigator interview Mr.
Rock prior to trial and he anticipated that he would appear at trial
and testify. It was also the first time the defense had requested
a continuance for a new trial date. It’s also important to note that
the trial court never made any inquiries about Mr. Rock’s medical
condition or his anticipated testimony and the trial court never
stated on the record its reasons for denying the continuance in
contravention to Pa.R.Crim.P. Rule 106(C). . . .
[Defense counsel] was not aware of [Mr. Rock’s] medical
condition until the day before the non-jury trial date[.]
Consequently, it was impossible for [defense counsel] to have
requested a continuance at least 48 hours before the trial date
because that information was not available to him in that
timeframe.
Appellant’s Brief at 17, 20.
Appellant is correct that the trial court, in contravention of Rule 106 (C),
failed to state on the record its reasons for denying Appellant’s request for
continuance. The Rule states:
(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.
Pa. R. Crim. P. 106 (emphasis added).
The trial court offered no explanation when it denied Appellant’s request
for a continuance. See N.T., 11/12/19, at 4 (trial court stating, “Okay. I’ll
deny the request for continuance. Commonwealth, do you want to call your
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witness[?]”). The following exchange reflects the entirety of the record on
this issue:
[DEFENSE COUNSEL]: Your Honor, this is the time set for a non-
jury trial in the case of Commonwealth of Pennsylvania versus
[Appellant], at 861 of 2019. At this time, the defense is
requesting a continuance for this reason. There’s a key witness
that is unavailable. I just received the statement from my
investigator yesterday actually, Mr. Melder, concerning a witness
who is [Appellant’s] grandfather who would be providing
exculpatory testimony in this case. His name is James Rock. He
is 80 years old and is very sick. That’s why he’s unavailable. I’m
moving to continue this matter to allow the defense an opportunity
to bring Mr. Rock in to provide testimony on behalf of his
grandson.
[TRIAL COURT]: Commonwealth[?]
[COMMONWEALTH]: Obviously, Your Honor, most of the time I
would not object. But we brought the trooper in today specifically.
I believe [defense counsel] knew about this witness. This witness
has always been -- this is where [Appellant] went to after this
happened -- this alleged accident happened. And so, he’s always
been available to the defense. That’s one of our reasons for not
consenting to the continuance.
[DEFENSE COUNSEL]: Well, Your Honor, I knew of the name of
Mr. Rock and I asked my investigator to interview this gentleman.
And I just received the witness statement yesterday.
[TRIAL COURT]: Okay. I’ll deny the request for continuance.
Commonwealth, do you want to call your witness[?] . . .
N.T., 11/12/19, at 3-4.
The above excerpt, in addition to confirming that the trial court did not
state on the record its reasons for denying the continuance in contravention
of Rule 106(C), supports Appellant’s contention that defense counsel learned
that Mr. Rock was sick less than 48 hours before trial, thus obviating the 48
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hour requirement in Rule 106(D) (“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 motion, or the interests of justice require it.”).
After Appellant appealed, the court stated it denied the continuance
because “it was untimely and violated R. 106(D).” Trial Court Opinion,
4/27/20, at 3. The court continued:
[Appellant] knew of the identity of his key witness, his
grandfather, from the day when this alleged incident occurred on
January 6, 2019. Furthermore, he failed to explain why he waited
until the day of trial to request a continuance. Specifically, the
Commonwealth stated that its witness was present and that
defense counsel knew of [Appellant’s] grandfather’s role early in
the case.
Id.The trial court’s explanation is not persuasive given that counsel learned
of Mr. Rock being sick less than 48 hours before trial, and the court failed to
state any reasons on the record when it denied the request.
Furthermore, Appellant’s defense was that he did not drink prior to the
crash. Rather, he claimed he swerved to miss a deer, crashed his car, walked
to his grandfather’s house, and because his head was hurting and “just the
reality of my car probably being totaled and everything else,” he quickly drank
his grandfather’s whiskey and became intoxicated. See N.T., 11/12/19, at
21-22.
Appellant maintained that Mr. Rock was home at the time, and asserts
that Mr. Rock’s “testimony was both necessary and essential to strengthen
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[his] defense that he consumed alcohol after the accident and not
beforehand.” Appellant’s Brief at 21. Appellant states:
[Mr. Rock] would have been able to corroborate Appellant’s
version of events by providing important, exculpatory facts with
respect to approximately what time the accident occurred, what
time Appellant had arrived at his residence, Appellant’s sobriety
at the time of his arrival, Appellant’s appearance and extent of his
head injury, the timeframe in which Appellant telephoned his
insurance company and the police, as well as when Appellant
drank the whiskey located in his grandfather’s freezer.
Id.Although we are mindful of the trial court’s “burden in scheduling trials
. . . which counsels against continuances except for compelling reasons,” this
case is one in which Appellant expressed a “justifiable request for delay,” while
the trial court’s terse denial gave the appearance of being arbitrary. Norton,
supra. To reiterate, 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. Factors to be considered include:
(1) the necessity of the witness to strengthen the party’s case;
(2) the essentiality of the witness to the party’s case; (3) the
diligence exercised to procure the witness’ presence at trial; (4)
the facts to which the witness could testify; and (5) the likelihood
that the witness could be produced at the next term of court.
Norton, 144 A.3d at 143-44.
As Appellant observes, “at the time of the continuance request, the trial
court made no inquiries regarding Mr. Rock’s medical condition or whether
any prior defense continuances for a new trial date had been granted.”
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Appellant’s Brief at 21. Nor did the trial court “request a proffer of evidence
with respect to Mr. Rock’s testimony before denying the request.” Id.
We agree that record is devoid of any reasons for the trial court’s denial
of a continuance, and conclude that the denial was contrary to “the interests
of justice” referenced in Pa.R.C.P. 106(D), and prejudicial. Ross, 57 A.3d at
91.
Finally, we note both the trial court and the Commonwealth cited
Trooper Milkovich’s presence the day of trial as a basis for opposing a
continuance. N.T., 11/12/19, at 3 (Commonwealth opposing continuance
because “we brought the Trooper in today specifically.”); Trial Court Opinion,
4/27/20, at 3 (“Specifically, the Commonwealth stated that its witness was
present”). We are cognizant that “trial courts require a great deal of latitude
in scheduling trials,” and their “burden” of “assembling the witnesses, lawyers,
and jurors at the same place at the same time[.]” Norton, 144 A.3d at 143.
However, in this case, the court could have proceeded with trial, allowed the
Trooper, and possibly Appellant, to testify, and continued the trial for a second
day for Appellant to present the testimony of Mr. Rock. See Pa.R.Crim.P.
106(A). If necessary, the Trooper could be recalled for rebuttal.
For the above reasons, we are constrained to find that the trial court
abused its discretion in denying Appellant’s request for a continuance. We
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therefore vacate the judgment of sentence and remand for further
proceedings.3
Judgment of sentence vacated. Case remanded for further proceedings
consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2021
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3 Our disposition renders Appellant’s second issue moot.
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