Com. v. Ferrante, C. ( 2023 )

J-S40034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CHRISTOPHER FERRANTE :
:
Appellee : No. 1445 EDA 2022
Appeal from the Order Entered May 24, 2022
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000858-2021
BEFORE: BENDER, P.J.E., STABILE, J., and KING, J.
MEMORANDUM BY KING, J.: FILED APRIL 21, 2023
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Northampton County Court of Common Pleas, which denied the
Commonwealth’s request for a continuance of trial.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
December 25, 2020, police discovered the body of an unresponsive male
inside his vehicle. The coroner’s officer discovered three bags of Fentanyl on
the body. An autopsy revealed that the cause of death was “acute intoxication
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1 In its notice of appeal, the Commonwealth stated that “it takes this
interlocutory appeal pursuant to Pennsylvania Rule of Appellate Procedure
311(d), and herein certifies that the trial court’s May 24, 2022 order
substantially handicaps the prosecution.” (Notice of Appeal, 5/25/22). Thus,
we agree with the Commonwealth that this matter is properly before us. See
Pa.R.A.P. 311; Commonwealth v. Norton, 144 A.3d 139, 141 n.1 (Pa.Super.
2016) (explaining that Commonwealth may properly appeal order denying its
motion for continuance where it includes Rule 311 certification).
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due to the combined effects of Fentanyl, Methadone, Atarax, Rompun, and
Benadryl.” (Trial Court Opinion, 7/27/22, at 3). On February 8, 2021,
Appellee, Christopher Ferrante, was arrested and charged with one count of
drug delivery resulting in death, and two counts each of possession of a
controlled substance with intent to deliver, criminal use of a communication
facility, and possession of a controlled substance.2 The court held Appellee’s
preliminary hearing on March 26, 2021, and he was formally arraigned on July
8, 2021.
After numerous pretrial hearings, the court scheduled the case for a jury
trial commencing on April 4, 2022. On March 23, 2022, the court held a pre-
trial conference wherein counsel for each party stated they were ready for
trial. On March 28, 2022, the district attorney sent a letter to the court
indicating that he had some evidentiary issues concerning the toxicology
report and requesting a continuance of the trial date.
On March 30, 2022, the court discussed the Commonwealth’s request
during a hearing on a pending motion in limine filed by Appellee. The district
attorney explained that the Commonwealth became aware the week prior that
the toxicologist would be able to testify as to what was found in the victim’s
bloodstream but could not testify as to whether the fentanyl found in the blood
stream was a lethal dose. (N.T. Hearing, 3/30/22, at 19-20). Therefore, the
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218 Pa.C.S.A. § 2506(a); 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 7512(a);
and 35 P.S. § 780-113(a)(16), respectively.
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Commonwealth sought a continuance to engage another toxicologist to
interpret some of the data from the toxicology report. (Id. at 21). The court
granted the Commonwealth’s request, continuing trial to the May 31, 2022,
criminal trial term. The court made clear that it did not intend to grant any
more continuances in this case. (Id. at 23).
On May 19, 2022, the Commonwealth sent another letter to the court
requesting another continuance of trial. The next day, Appellee filed a petition
to modify bail in the event the court granted the continuance. On May 24,
2022, the court convened a hearing on the motion for continuance and motion
to modify bail. At the hearing, the following exchange took place:
THE COURT: All right. So, this is a request for a
continuance. Please articulate the basis of this continuance
in more detail.
[ASSISTANT DISTRICT ATTORNEY (“ADA”) PEPPER]: If I
may, Judge, this is a rather complicated case. As of late
last week, I took over responsibility as first chair or lead
counsel in this case with ADA Turzyn who will be second
chair. There have been certain adjustments made in the
DA’s Office such that [ADA] Thompson cannot continue with
this case.
In addition to that, there are certain tests that now that
[ADA] Turzyn has looked at the case we believe need to be
completed by, first, the State Police, and then we need to
hire a professional expert toxicologist as far as this case is
concerned. As the [c]ourt has noted, this case is currently
scheduled for trial on Monday, and clearly—
THE COURT: It’s actually Tuesday, May 31st.
[ADA PEPPER]: I’m sorry.
THE COURT: We have a holiday. It’s scheduled for jury
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selection on Tuesday, May 31st.
[ADA PEPPER]: That is correct, Judge. I’m sorry. And I
don’t believe that I can become familiar with the case or be
prepared for the case—
THE COURT: Well, you’ve created your own hardship. You
have [ADA] Thompson, who has had this case since day one.
This defendant was charged back in, what, February 8th of
2021, and he’s handled this case, at least as far as I know,
through the time period up until today, has appeared before
the [c]ourt numerous times for conferences, handled the
pretrial motion that was filed. And here we are, you know,
a week from trial and the Commonwealth decides to shuffle
the deck of who’s handling this case and then come in and
say, oh, we have a hardship because we decided internally
that [ADA] Thompson is going to be doing something else,
perhaps, I don’t know. So I’m taking over the case and
another [ADA], we don’t have time to be prepared. So you
created your own hardship. I don’t understand, you know,
why that’s done. It’s not my business, quite frankly. It’s
up to the DA to decide which cases are assigned to the
[ADA’]s. But you’re using that as part of a reason why you
need a continuance, and that’s a self-created hardship. Isn’t
it?
[ADA PEPPER]: I’m not saying it’s a hardship, Judge. I’m
saying the case is not ready for trial.
THE COURT: Well why isn’t it ready? Tell me why it’s not
ready. I mean, this has been going on since the time this
gentleman was arrested on February 8, 2021. The case was
scheduled for trial April 4th. At that time the
Commonwealth stated that they needed a continuance, I
think it was for two reasons. One was the issue with the
toxicologist who signed a report who wasn’t a toxicologist,
and there was also a witness, as I recall, that was not
available. So, the [c]ourt continued the case to this date of
May 31st. Now you’re telling me that the case isn’t ready
for trial. Why isn’t it ready? I don’t understand.
[ADA PEPPER]: The conversations with the toxicologist and
[ADA] Turzyn, we’ve come to the conclusion that we need
an additional expert toxicologist.
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THE COURT: But why[?] How do you come to this
conclusion a week from trial? That’s what I want to know.
Why isn’t this case—has this case not been given attention?
[ADA PEPPER]: It has.
THE COURT: Well, then why didn’t we know this sooner?
What is the issue? Tell me what the issue is.
[ADA PEPPER]: The issue is we need [an] additional
professional witness.
THE COURT: Why?
[ADA PEPPER]: Because we believe that’s how the case
should be tried.
THE COURT: Well, why wasn’t that done months ago?
[ADA PEPPER]: I can’t answer that.
THE COURT: So you’re saying that you need a new expert?
[ADA PEPPER]: We need an expert in toxicology.
THE COURT: And you don’t have that now?
[ADA PEPPER]: We do not.
THE COURT: Well, why don’t you have that now? That’s
what I’d like to know.
[ADA PEPPER]: I can’t answer that other than speculating
that the toxicologist who performs the test and spoke to us,
we don’t believe can qualify as an expert in the area we
specifically need her to do so. She will be a witness. But
we believe we need an additional—
THE COURT: And when—and how did you learn this?
[ADA PEPPER]: [ADA] Turzyn spoke with her directly last—
last week?
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[ADA TURZYN]: Your Honor, if I may, the original person
who ran the toxicology report we were under the
assumption was a toxicologist. It was not a toxicologist.
THE COURT: All right, well, we knew that a while ago.
[ADA] Thompson told us that.
[ADA TURZYN]: Correct.
THE COURT: When he learned about that, it’s over a month
ago.
[ADA TURZYN]: Right.
THE COURT: And I believe [ADA] Thompson became aware
of that. He informed the [c]ourt of that.
[ADA TURZYN]: Yes.
THE COURT: And the [c]ourt said, Okay, we’re going to give
you time to get someone else. I think the last time we met
we were assured that that person was in place and was
ready to issue a report. So what happened with the second
person?
[ADA TURZYN]: With that second person in the meeting we
discerned that she needed much more information to render
an expert opinion—
THE COURT: What information? What information?
[ADA TURZYN]: She would need the autopsy report.
THE COURT: Well, the autopsy report has been available
for how long?
[ADA TURZYN]: No, I understand, Your Honor, we just
weren’t aware that she needed that at that time.
THE COURT: Okay, so you send it to her, and then she’s
ready.
[ADA TURZYN]: Like I said, she needs her autopsy report.
She needs the medical records from the defense and the
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history—
THE COURT: Which we also had available for a long time?
[ADA TURZYN]: Correct. But we weren’t aware she needed
them. We did not provide them to her at that time.
THE COURT: Well, what I don’t understand, though, is
that—when did you learn this?
[ADA TURZYN]: We learned this in the initial consultation
which was about two weeks ago.
THE COURT: Okay. So she says, I need the autopsy report;
I need the medical reports. You have those, you zoom them
out on email. How much time does she need to review this
stuff?
[ADA TURZYN]: Your Honor, she said that it would take her
quite some time to render an expert report, so we haven’t
gotten a firm deadline from her and she’s not an expert in
drugs resulting in death so she would like to refer it out to
a different expert in the NMS Lab.
THE COURT: Is this the State Police?
[ADA TURZYN]: No, Your Honor. This is NMS Labs.
THE COURT: So this person works for the NMS Lab?
[ADA TURZYN]: Correct.
THE COURT: And she’s a second person that the
Commonwealth was dealing with relative to this case; is that
right? There was a State Police person that signed this
initially, isn’t that right?
[ADA TURZYN]: A State Police person signed the drug test
for what was found on [Appellee].
THE COURT: The toxicology report?
[ADA TURZYN]: No. That was always NMS Labs.
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THE COURT: It was. Okay. All right, so the first person at
the lab was not qualified?
[ADA TURZYN]: Was not a toxicologist, just a certifying
scientist.
THE COURT: Okay, now the second woman—is it a woman?
[ADA TURZYN]: Yes.
THE COURT: And she’s not qualified either?
[ADA TURZYN]: She was there to consult and she believes
that an expert from NMS Labs in drug deliveries resulting in
death would be more appropriate.
THE COURT: Well, I really am, you know, perplexed by this
whole thing, quite frankly. I mean these cases are not
unique to the criminal justice system. We’ve had, you know,
hundreds of them over the years, so I just don’t really know
what happened here. So you’re saying that you’re not ready
because you have no expert witness to testify? What are
they going to testify to? Tell me what they’re testifying to.
[ADA TURZYN]: She would be testifying to but for the
fentanyl being in his system that the victim would not have
died. But because of the circumstances of how much
fentanyl is in the system, the expert would need more
information to render such opinion.
THE COURT: And that information is what again? The
autopsy report, which they have. The medical records they
have. What other information do they need?
[ADA TURZYN]: She would need the investigative report,
the photos of the crime scene and everything else related to
render that opinion.
THE COURT: There was also something raised in this letter,
something to deal with an elephant tranquilizer agent. Is
that an issue also?
[ADA PEPPER]: One of the drugs that was found is an
animal tranquilizer. The toxicologist needs to also address
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that.
THE COURT: And was found where?
[ADA TURZYN]: In his blood.
[ADA PEPPER]: In his system.
THE COURT: Well, we knew that, right? That’s something
that—that just didn’t come up recently. That’s in the initial
toxicology report.
[ADA PEPPER]: It is listed.
THE COURT: Is that a surprise?
[ADA PEPPER]: No.
[ADA THOMPSON]: I’m sorry, Judge. If I may, the issue in
particular is when we received the initial Pennsylvania State
Police report, the substances that were located on the
deceased, that report simply reported the controlled
substances which would be the fentanyl that they
discovered in the substances. Working on another one of
these cases, I received a more recent report from the
Pennsylvania State Police lab.
THE COURT: I understand that. Go ahead.
[ADA THOMPSON]: The state police lab reported that not
only was the controlled substance found in the blood—
excuse me, in the substances, but now it also—because
they’re becoming more and more familiar with these cases,
they’re beginning to report the tranquilizer, the Rompun,
which is the name of the drug itself, commercial name, in
that report. So [ADA] Turzyn had followed up on that with
the lab person who indicated that they still had the original
notes. They would have to do an additional report, but that
report would indicate that this substance also was found in
those packages that were located on the deceased. This
impacts the case fairly broadly.
THE COURT: How? Tell me how.
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[ADA THOMPSON]: So the argument is essentially drug
delivery resulting in death. But if you can argue that it was
not just the fentanyl that killed him but its interaction with
this xylazine, was the name, that’s a potential defense and
a potential issue for the Commonwealth to grapple with.
However, if in truth, if the actual evidence now is that the
delivery was not just—at least the Commonwealth can argue
that the delivery was not just the fentanyl but also with the
xylazine that was included in the items found on the
deceased, I think that changes somewhat the complexion of
the case and the arguments for both sides.
* * *
THE COURT: All right, [defense counsel], do you oppose the
request for the continuance, or are you in agreement with
it?
[DEFENSE COUNSEL]: We do not consent.
(N.T. Hearing, 5/24/22, at 4-17).
After hearing the parties’ positions on both the request for continuance
and Appellee’s petition to modify bail if the court granted the continuance, the
court denied both motions. The next day, on May 25, 2022, the
Commonwealth filed the instant interlocutory appeal per Rule 311(d). The
trial court did not order the Commonwealth to file a concise statement of
errors complained of on appeal under Pa.R.A.P. 1925(b), and the
Commonwealth did not file one.
The Commonwealth raises one issue on appeal.
Did the trial court abuse its discretion by denying the
Commonwealth’s motion for a trial continuance?
(Commonwealth’s Brief at 4) (unnecessary capitalization omitted).
The Commonwealth argues that it sought a continuance of trial to obtain
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an additional expert witness. The Commonwealth claims that to prove
Appellee’s guilt concerning the charge of drug delivery resulting in death, its
expert was required to opine not only that fentanyl was found in the victim’s
blood, but also as to the amount of fentanyl and whether that was a fatal
dose. (Id. at 11-12). The Commonwealth explains that its original
toxicologist was unable to render an expert opinion on these points.
Therefore, the Commonwealth insists that it was entitled to a continuance to
secure a new toxicologist as a material witness for trial. The Commonwealth
concludes the court abused its discretion in denying a continuance, and this
Court must grant relief. We disagree.
“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.” Commonwealth v. Brooks, 628 Pa. 524, 529, 104
A.3d 466, 469 (2014) (quoting Commonwealth v. Randolph, 582 Pa. 576,
583, 873 A.2d 1277, 1281 (2005)).
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.” 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
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reasons for denying the request. See id.Norton, supra at 143. Additionally:
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.
Commonwealth v. Micelli, 573 A.2d 606, 607 (Pa.Super.
1990) (quotation and footnote omitted).
Id. at 143–44.
Instantly, the Commonwealth charged Appellee with, inter alia, drug
delivery resulting in death, which requires proof that an individual intentionally
distributed a controlled substance, and another person died as a result of using
that substance. See 18 Pa.C.S.A. § 2506(a). Section 2506 requires a “but-
for” test of causation, such that “the results of the defendant’s actions cannot
be so extraordinarily remote or attenuated that it would be unfair to hold the
defendant criminally responsible.” Commonwealth v. Kakhankham, 132
A.3d 986, 993 (Pa.Super. 2015), appeal denied, 635 Pa. 773, 138 A.3d 4(2016) (quoting Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa.Super.
2008), appeal denied, 599 Pa. 690, 960 A.2d 838 (2008)).
In evaluating the relevant factors, the trial court found no justifiable
basis for a continuance. (See Trial Court Opinion at 19). The court explained
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that it was neither “necessary” nor “essential” for the Commonwealth to have
another expert to prosecute its case. Specifically, the trial court reasoned:
In this matter, the toxicology report attached to the autopsy
report detailed the amount of Fentanyl found in the victim’s
system as 29 ng/ml. Dr. Hua, the forensic pathologist who
performed the autopsy, stated in his report that the victim
died from “acute intoxication due to the combined effects of
Fentanyl, Methadone, Ataiax, Rompun and Benadryl.” Dr.
Hua was prepared to testify, unequivocally, that it was the
Fentanyl that caused the victim’s death. At a hearing on
March 30, 2022, the Commonwealth’s attorney, [ADA]
Thompson, stated as follows:
[ADA] THOMPSON: Yeah, Dr. Hua. I met with him
the other day and that's essentially his testimony, its
Fentanyl that killed him.
THE COURT: Well, the level as set forth in the
toxicology report?
[ADA] THOMPSON: Well, that’s a very high level. He
will testify to that.
THE COURT: That’s what he'll say?
[ADA] THOMPSON: Yes.
THE COURT: That’s what he’ll say?
[ADA] THOMPSON: I think—yes. Absolutely.
(N.T., 3/30/2[2], at 15).
In short, the Commonwealth had available a qualified expert
witness, Dr. Hua, who was prepared to relate the level of
Fentanyl found in the victim as the cause of the victim’s
death. The anticipated testimony of Dr. Hua would have
been sufficient evidence to have the primary charge
submitted to the jury. We had previously indicated that we
would permit Dr. Hua to discuss the significance of the level
of Fentanyl in the victim’s system and to opine that it was
the cause of the victim’s death. (See id. 12-17).
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We recognize that the Commonwealth has the right to
present its case as it deems necessary, including but not
limited to, having more than one expert. We continued the
April 4, 2022 trial date specifically to grant the
Commonwealth the time to retain another toxicologist who
we were told would merely be signing the initial report and
testifying to its contents. (See N.T., 5/4/22, 8-12). The
Commonwealth had ample time from March 24, 2022 until
May 31, 2022 to bolster its case however they deemed
appropriate. However, even without another toxicologist
who would relate the amount of Fentanyl to the victim’s
death, the Commonwealth had sufficient evidence to get all
charges to a jury. In light of the anticipated testimony of
Dr. Hua, we did not find it necessary or essential for the
Commonwealth to secure another expert to relate the
amount of Fentanyl to the victim’s death.
Secondly, we found that the Commonwealth did not exercise
due diligence in procuring such testimony between March
24, 2022, when it identified its need, and the trial date. Due
diligence requires at least an attempted effort. Here,
despite repeated questions posed by us to the
Commonwealth attorneys as to why nothing was done
during the two (2) month period between March 24, 2022
and May 24, 2022 to secure their desired witness, we were
answered with repeated “I can’t answer that.” (N.T.,
5/24/22, at 7). Further, the Commonwealth could not even
assure us that they could be ready for Criminal Court terms
scheduled in July, August, or September. They sought a
continuance to October 2022.
Lastly, as we noted at the hearing, the Commonwealth
created its own additional hardship when it decided on the
eve of trial, without explanation, to replace [ADA]
Thompson, who had handled all matters related to this case
since February 2021. [ADA] Thompson is a Supervising
Deputy District Attorney who supervises the Drug Task
Force Unit of the Northampton County District Attorney’s
Office. He has been an Assistant District Attorney for over
20 years. He appears before this [c]ourt regularly and has
handled a number of serious cases. Although the
Commonwealth had every right to assign new prosecutors
to the case, such action did not justify a continuance. The
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new prosecutors had one (1) week to prepare themselves
and should have known that, if they were going to assume
responsibility for the case, they would have to be prepared
for the upcoming trial date.
(Trial Court Opinion at 20-23).
Our review of the record makes clear that the court evaluated the factors
relevant to whether to grant or deny a continuance, and the court denied the
Commonwealth’s request based on the lack of necessity of the witness to
prove the Commonwealth’s case and the Commonwealth’s failure to exercise
due diligence in preparing for trial. In light of our deferential standard of
review, we conclude the trial court did not abuse its discretion under these
circumstances. See Brooks, supra; Norton, supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2023
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