Com. v. Bertin, M.

J-A18029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MICHAEL BERTIN
Appellee No. 1859 MDA 2014
Appeal from the Order Entered October 9, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No: 14-20, 424
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 17, 2015
Appellant, the Commonwealth, appeals from the order of the Court of
Common Pleas of Lycoming County entered October 9, 2014.1 The
Commonwealth argues the trial court abused its discretion in refusing a
continuance based on the absence of a witness. The Commonwealth also
argues the trial court abused its discretion in dismissing the petitions giving
rise to the underlying actions. We affirm.
The trial court summarized the relevant background as follows:
A temporary Protection [f]rom Abuse [(PFA)] order was entered
between Tineesha Harris (hereinafter Plaintiff) and Michael Bertin
(hereinafter [Appellee]) on March 31, 2014. At the Plaintiff’s
request on June 27, 2014 the [order] was amended to allow
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1
The trial court’s October 8, 2014 order was entered on the docket on
October 9, 2014. The caption has been amended to reflect the date of entry
of the order.
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contact between the parties regarding Plaintiff’s pregnancy and
child care. At the time set for the PFA hearing, August 25, 2014,
[Appellee failed to appear. Consequently, the trial court entered
a final PFA order].
Plaintiff filed two separate criminal complaints alleging [Appellee]
had contacted her in violation of the [PFA] order. The first
complaint was made July 18, 2014 and alleged text messages
were received from [Appellee]. The second complaint was made
September 9, 2014 and alleged [Appellee] had sent text
messages to [Plaintiff]. Contained in the [a]ffidavit of [p]robable
cause dated September 4, 2014 is the Plaintiff’s statement that
the [Appellee] was out of the state and not expected back until
the end of September.
[Appellee] was arraigned on October 3, 2014. On October 3,
2014, notice went to both the Commonwealth and [Appellee] as
to the hearing scheduled for October 8, 2014. [Plaintiff] did not
appear on October 8, 2014. [Appellee] and his counsel were
present as well as a police officer present as a witness. At the
time of hearing, no testimony was taken. Both the attorney for
the Commonwealth and [Appellee]’s attorney made argument.
The Commonwealth made argument as to their request for a
continuance and outlined the efforts made by their office to
secure the presence of [Plaintiff]. The Commonwealth sent a
subpoena by mail to [Plaintiff] on October 6, 2014. The
Commonwealth also attempted to contact [Plaintiff] by a
telephone number contained in the most recent police report,
but were informed the number was incorrect. The
Commonwealth did not attempt to contact [Plaintiff]’s attorney
or pull the PFA file to obtain information on [Plaintiff].
[Appellee]’s attorney objected to the continuance request and
asked the [c]ourt to dismiss the charges. [Appellee]’s attorney
cited the responsibility of the Commonwealth to bring forward
witnesses and [its] responsibility to have used hand service to
locate and properly serve [Plaintiff].
Trial Court Opinion, 1/5/15, at 2-4 (citations to record omitted).
On appeal, the Commonwealth raised the following issues for our
review:
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1. Did the trial court abuse its discretion in denying the
Commonwealth’s continuance request at the time of the PFA
contempt hearing, and dismissing the contempt petitions and
denying the motion for reconsideration, when the victim failed
to appear for the hearing, which had only been scheduled
three business days prior, because she had not received
notice of the hearing despite the Commonwealth’s reasonable
efforts to notify her by mailing a subpoena and attempting to
call her using the most recent phone number in its records?
2. Did the trial court abuse its discretion in dismissing the PFA
contempt petitions, and denying reconsideration, even if the
Commonwealth’s efforts were unreasonable and even if the
Commonwealth should have requested a continuance prior to
the hearing, when the Commonwealth did not engage in
willful misconduct and the remedy of dismissal was a sanction
out of proportion to the violation, and where other sanctions
that did not harm the public interest could have been imposed
even if the Commonwealth’s conduct constituted willful
misconduct?
Appellant’s Brief at 7.
Regarding the first claim, our Supreme Court summarized the
controlling standard as follows:
We have said that the considerations which underlie the exercise
of a trial judge’s discretion to grant or refuse a continuance
based on the absence of a material witness include whether the
witness is essential to the defense or necessary to strengthen
the defendant’s case, the diligence exercised to procure his
presence at trial, the facts to which the witness could testify, and
the likelihood that the witness could be produced at the next
term of court.
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Commonwealth v. Howard, 353 A.2d 438, 439 (Pa. 1976) (citing
Commonwealth v. Smith, 275 A.2d 98 (Pa. 1971)).2
Here, the thrust of the trial court’s denial of continuance rests upon
the Commonwealth’s inadequate effort to secure the witness’s presence at
the PFA hearing. Specifically, the trial court found as follows:
The Commonwealth simply mailed the subpoena [to Plaintiff]
three days after their receipt of [n]otice of the hearing. The
Commonwealth depended on an overnight delivery although no
expedited postal service was requested. Further, when the
Commonwealth learned the number they called was incorrect the
office made no attempt to pull the file, contact [Plaintiff]’s
attorney or reach [Plaintiff] by any other means.
....
The Commonwealth did not file a continuance request as soon as
the issue of the wrong phone number became known. Instead,
the Commonwealth allowed for [Appellee], his attorney and at
least one police officer to appear in [c]ourt and depended on the
[c]ourt allowing for a continuance. . . .
Trial Court Opinion, 1/5/15, at 6.
In light of the foregoing, despite the trial court’s acknowledgement of
the short notice given to the parties, see N.T. 10/8/14, at 5-6, we are
constrained to agree with the trial court that the “Commonwealth did not
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2
“Although the factors are stated in relation to a defense motion for
continuance, they are equally applicable when the prosecution requests a
continuance.” Commonwealth v. Micelli, 573 A.2d 606, 607 n.3 (Pa.
Super. 1990).
It is worth noting that the trial court’s authority to continue a PFA hearing is
also statutorily provided in 23 Pa.C.S.A. § 6107(c).
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exercise due diligence in their attempts to have [Plaintiff] present as a
witness.” Id. Accordingly, while we might have reached a different
conclusion, in light of our standard of review, we conclude that the trial court
did not abuse its discretion in denying the Commonwealth’s request for a
continuance.3
Next, the Commonwealth argues the dismissal of the PFA petitions was
unwarranted given that the Commonwealth’s conduct was not willful and
that less severe sanctions were available. In support, the Commonwealth
relies on decisions (e.g., Commonwealth v. Burke, 781 A.2d 1136 (Pa.
2001), and Commonwealth v. Shaffer, 712 A.2d 749 (Pa. 1998)) dealing
with dismissal of charges because of prosecutorial misconduct. The
Commonwealth’s reliance on these cases is misplaced.
The trial court did not dismiss the PFA petitions at issue here as a
sanction for the Commonwealth’s conduct, but as a consequence of the
Commonwealth’s inability to meet its burden at the hearing. See Trial Court
Opinion, 1/5/15, at 6 (“The charges were dismissed based on the
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3
“An abuse of discretion may not be found merely because an appellate
court might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.” Commonwealth v.
Dengler, 890 A.2d 372, 379 (Pa. 2005) (citation omitted); see also Ferko-
Fox v. Fox, 68 A.3d 917, 925 (Pa. Super. 2013) (citation omitted) (“An
abuse of discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion unless the
record discloses that the judgment exercised was manifestly unreasonable,
or the results of partiality, prejudice, bias or ill-will.”).
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Commonwealth’s inability to meet its burden at the time set for the hearing.
Both [a]ffidavits of [p]robable [c]ause allege [Appellee]’s violation was
communicating with [Plaintiff] in violation of the [PFA] Order. Plaintiff was
not present to testify to the alleged communications.”). Indeed, the PFA Act
provides that at the hearing on a PFA petition, “the plaintiff must prove the
allegation of abuse by a preponderance of the evidence.” 23 Pa.C.S.A.
§ 6107(a). Because the Commonwealth did not meet its burden at the
hearing—a point not disputed by the Commonwealth—the trial court
dismissed the PFA petitions. In light of the foregoing, we conclude the trial
court did not abuse its discretion in dismissing the PFA petitions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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