Com. v. Thompson, J. ( 2021 )

J-A03002-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JARED JOSEPH THOMPSON : No. 872 MDA 2020
Appeal from the Order Entered June 22, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003760-2019
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 19, 2021
The Commonwealth appeals from the order denying its motion to
continue the non-jury trial of Jared Joseph Thompson (Appellee). We affirm.
The trial court summarized the procedural history as follows:
The alleged incident of driving under the influence,
possession of paraphernalia and small amount of marijuana, and
traffic summaries[1] involving [Appellee] occurred on or about
February 5, 2019. A complaint was filed on March 28, 2019 by
the Pennsylvania State Police. On July 3, 2020, [Appellee] waived
his Preliminary Hearing. A bench trial was originally scheduled for
April 7, 2020, but on March 30, 2020, at the request of both the
[Commonwealth and defense counsel], that trial was rescheduled
for May 4, 2020. The May 4th trial was rescheduled upon request
of [the Commonwealth] to which defense counsel acquiesced. On
May 5, 2020, the bench trial was rescheduled for June 23, 2020;
the Order to do so was time stamped and counsel received notice
that same day via email. On the morning of June 19, 2020, the
[Commonwealth] [orally] requested a continuance. Despite being
____________________________________________
175 Pa.C.S.A. § 3802, 35 P.S. § 780-113(a)(31)(i) and (32), 75 Pa.C.S.A. §§
1786(f), 3309(1), and 3361.
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out-of-state on vacation, this court held a telephone conference
with the [Commonwealth] and defense counsel that afternoon at
which time, the [Commonwealth] informed the court that the
Commonwealth needed a continuance because the prosecuting
trooper affiant had informed the Commonwealth on Ju[ne] 18,
2020, that he was going to be out-of-state on vacation on the day
of the trial. The Commonwealth had subpoenaed the trooper and
other necessary witnesses necessary to prosecute the case on May
18, 2020. Defense counsel opposed the continuance. Given the
lateness and the reason for the request, the court denied the
Commonwealth’s oral motion for continuance.
Trial Court Opinion, 7/21/20, at 2.
On June 22, 2020, the Commonwealth filed a written Motion for
Continuance of Trial, which the trial court denied by order dated the same
day. The next day, June 23, 2020, the trial court called the case to trial. The
Commonwealth informed the trial court that it would be appealing the court’s
denial of its continuance motion. See N.T., 6/23/20, at 2. Defense counsel
verbally requested that the trial court enter judgment of acquittal. See id.
In response, the trial court stated that because the Commonwealth was
appealing the order denying a continuance, “[t]here is nothing I can do at this
point other than sit back and see how their appeal process plays itself out.”
Id. at 7. The Commonwealth then requested the trial court reconsider its
denial of the continuance request, and the court replied:
Well, as I told the assistant district attorney when I spoke to her
on Friday, I would speak to President Judge Ashworth about the
situation. And here we are. I haven’t changed my mind after
speaking to him.
Id.
The trial court adjourned at 1:40 p.m. The Commonwealth’s notice of
appeal was time-stamped as filed in the Clerk of Court’s office at 1:41 p.m.
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Although the continuance order is interlocutory, the Commonwealth attached
to its notice of appeal a certification that the “attached Order . . . of June 22,
2020, will terminate or substantially handicap the prosecution,” in compliance
with Pennsylvania Rule of Appellate Procedure 311(d). Notice of Appeal,
6/23/20, at 2.
With regard to interlocutory appeals as of right, the Rule states:
Commonwealth appeals in criminal cases. In a criminal case,
under the circumstances provided by law, the Commonwealth
may take an appeal as of right from an order that does not end
the entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the
prosecution.
Pa.R.A.P. 311(d).
The parties do not dispute that Trooper Ciatto is a necessary and
material witness for the prosecution. Also, by stating “there is nothing I can
do at this point other than sit back and see how the appeal process plays itself
out,” the trial court appears to agree, or at least contemplate, that the order
is appealable as of right. Appellee, however, argues that this appeal is
interlocutory and should be quashed. Appellee asserts: “Trooper Ciatto, the
prosecuting officer, had already been subpoenaed; thus the Commonwealth
did not need to secure his presence by issuing a subpoena, it only needed to
require him to comply with the subpoena.” Appellee’s Brief at 15-16.
Appellee’s argument is one of semantics. The fact is that Trooper Ciatto,
although subpoenaed, was out of state and unavailable at the time of trial.
Therefore, the trial court’s order denying the Commonwealth’s continuance
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motion handicapped the prosecution. Accordingly, we decline to quash the
appeal as interlocutory.
On appeal, both the Commonwealth and the trial court have complied
with Pennsylvania Rule of Appellate Procedure 1925. The Commonwealth
presents a single issue for review:
I. WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION BY
DENYING THE COMMONWEALTH’S REASONABLE REQUEST FOR A
CONTINUANCE TO SECURE THE PRESENCE OF A CRITICAL
WITNESS?
Commonwealth Brief at 4.
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). “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.We have explained:
[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. 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. . . .
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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.
Id. at 143-44 (emphasis added, citation omitted).
The Commonwealth argues the trial court abused its discretion in
denying its “reasonable request for continuance to secure the presence of a
critical witness.” Commonwealth Brief at 10. In its motion, the
Commonwealth averred:
2. A bench trial before this [c]ourt is presently scheduled for
Tuesday, June 23, 2020.
3. Previously, this matter was scheduled for a bench trial on
April 7, 2020, and subsequently May 4, 2020. Both trial dates
were continued by the [c]ourt pursuant to the Administrative
Order issued by President Judge David L. Ashworth regarding the
ongoing Judicial Emergency due to the COVID-19 pandemic.
4. The current Administrative Order, extending the Judicial
Emergency through August 31, 2020, provides, in pertinent part,
that “[c]riminal nonjury trials may be scheduled with permission
of the President Judge.” A.D. 36-2020, 6/19/20. A previous
version of the Administrative Order, issued April 24, 2020,
provided the same. See A.D. 30-2020, 4/24/20.
5. On May 1, 2020, the [c]ourt rescheduled the bench trial
for June 23, 2020. Neither party was consulted regarding the date
or availability thereon.
6. On May 18, 2020, the Commonwealth issued subpoenas
to several witnesses for the June 23 trial date, including affiant,
Pennsylvania State Trooper Nicholas J. Ciatto. Subpoenas were
received by all witnesses.
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7. On June 18, 2020, Trooper Ciatto informed undersigned
counsel that he would be out of state from June 20, 2020 through
June 27, 2020, and [would be] unavailable for trial on June 23.
8. Trooper Ciatto is a necessary and material witness,
without whose testimony the Commonwealth cannot proceed to
trial. Specifically, in addition to filing the charges in this case,
Trooper Ciatto: arrived on scene at the accident in question;
interviewed a witness at the scene; interviewed [Appellee] at the
hospital; read DL-26B warnings to [Appellee], who consented to
a blood test; witnessed blood drawn from the [Appellee]; and
seized evidence the Commonwealth intends to introduce at trial.
9. The [c]ourt’s denial of the Commonwealth’s request for a
continuance to secure Trooper Ciatto’s presence and testimony at
trial would substantially handicap the prosecution.
Commonwealth Motion for Continuance of Trial, 6/22/20, at ¶¶ 2-9; see also
Commonwealth Brief at 5-10.
Appellee has responded:
Trooper Ciatto, the prosecuting officer, had already been
subpoenaed; thus the Commonwealth did not need to secure his
presence by issuing a subpoena, it only needed to require him to
comply with the subpoena. The Commonwealth knew on June 19,
2020, prior to Trooper Ciatto leaving on vacation, that the court
had orally denied the Motion for Continuance; thus, the
Commonwealth was obligated at that point, in the exercise of due
diligence, to inform the Trooper that he was not being released
from the subpoena, and that it would seek to enforce the
subpoena if necessary. Once a subpoena has been served, “the
court may issue a bench warrant for any witness who fails to
appear in response to a subpoena.” 42 Pa.C.S. § 5904(d). A
continuance was not needed to secure Trooper Ciatto’s presence
at trial.
* * *
The Commonwealth argues that because it was not at fault
for the late request, and the witness was essential, the trial court
abused its discretion in denying its motion for a continuance. The
Commonwealth argues that the factors set forth in Norton must
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be considered by the trial court, but the Commonwealth ignores
the fact that these factors must be considered by the trial court
“[w]hen deciding a motion for a continuance to secure a material
witness.” Commonwealth v. Norton, 144 A.3d 139, 143 (Pa.
Super. 2016) (emphasis added). In this case, the material
witness had already been secured via subpoena, and it was up to
the Commonwealth to enforce its already-served subpoena.
Defense counsel acknowledges that the prosecuting officer’s
testimony was essential for the case, but the Commonwealth
disregards the fact that the exercise of due diligence in this case
meant refusing to release the Trooper from his subpoena and
informing him that because it could not get a continuance, he was
required to appear for trial. In other words, in this case, the
Commonwealth should have exercised due diligence to procure
Trooper Ciatto’s presence at trial by enforcing the subpoena. See
42 Pa.C.S. § 5904(d) (once a subpoena has been served, “the
court may issue a bench warrant for any witness who fails to
appear in response to a subpoena.”); Commonwealth v.
Norton, 144 A.3d 139, 143 (Pa. Super. 2016) (in considering
whether to grant a continuance, trial court should consider, inter
alia, “the diligence exercised to procure [the witness’s] presence
at trial”). Instead, the Commonwealth chose to permit the
Trooper to leave for vacation, and to appear at trial without him,
announcing its intent to appeal the court’s denial of its request for
a continuance. It is noted that the court held a video conference
while it was on vacation and specifically denied the request for a
continuance before the Trooper left on vacation. Thus, the
Commonwealth made the choice not to enforce its own subpoena.
...
If Trooper Ciatto wanted the court to reschedule the trial
because of his vacation, he should have promptly informed the
Commonwealth when he learned of the trial date, rather than wait
until 3 business days before trial to do so. Under the
circumstances, the trial court was not required to rearrange its
schedule when the prosecuting officer had been properly
subpoenaed for more than a month and the Commonwealth could
have required his appearance pursuant to the subpoena, rather
than request a continuance.
Appellee’s Brief at 15-23 (some citations and footnote omitted, italics in
original).
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The trial court explained its denial of the Commonwealth’s continuance
request as follows:
“Trial judges necessarily require a great deal of latitude in
scheduling trials.” Commonwealth v. Sandusky, 77 A.3d 663, 671
PA Super (2013). Ordinarily, this court is amenable to continue
trials for legitimate and unforeseen circumstances, i.e. required
training, medical, family, and/or double booking of a witness.
Here, the trooper, though subpoenaed on May 18, 2020, failed to
inform the [Commonwealth] of same until two working days prior
to trial. All other witnesses had been subpoenaed and
arrangements made for their testimony. This court should not be
held hostage to the whims of the Commonwealth’s witness.
Trial Court Opinion, 7/21/20, at 3.
Upon review, we discern no basis upon which to disturb the trial court’s
decision. The time and sequence of events are relevant. On May 1, 2020,
the trial was continued to June 23, 2020 as a result of the COVID-19
pandemic. The Commonwealth subpoenaed Trooper Ciatto on May 18, 2020.
On June 19, 2020, two business days prior to trial, the Commonwealth
verbally requested a continuance; it repeated its request in a written motion
filed on June 22, 2020.
In the Commonwealth’s words:
On June 18, 2020, Trooper Ciatto contacted [Assistant District
Attorney] Andracchio and informed her that he would be out of
the state from June 20, 2020, through June 27, 2020. On June
19, 2020, a telephone conference was held regarding the
Commonwealth’s request for a continuance given the essential
nature of Trooper Ciatto’s testimony. Defense counsel objected,
and despite understanding that Trooper Ciatto was on a ‘prepaid,
preplanned vacation and it could not be changed,’ the Lower Court
denied both the oral request for a continuance, as well as the
subsequent written request filed on June 22, 2020.
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Commonwealth Brief at 7-8.
As noted above, our review of a trial court’s continuance decision is
deferential, the decision is within the trial court’s sound discretion, and we will
only reverse the decision upon a showing of an abuse of discretion. Norton,
144 A.3d at 143 (noting trial court’s scheduling burden “counsels against
continuances except for compelling reasons.”). Our Supreme Court has
stated:
When a trial court comes to a conclusion through the exercise of
its discretion, there is a heavy burden on the appellant to show
that this discretion has been abused. An appellant cannot meet
this burden by simply persuading an appellate court that it may
have reached a different conclusion than that reached by the trial
court; rather, to overcome this heavy burden, the appellant must
demonstrate that the trial court actually abused its discretionary
power. An abuse of discretion will not be found based on a mere
error of judgment, but rather exists where the trial court has
reached a conclusion which overrides or misapplies the law, or
where the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will. Absent an abuse of
that discretion, an appellate court should not disturb a trial court’s
ruling.
Commonwealth v. Norton, 201 A.3d 112, 120 (Pa. 2019) (citations
omitted).
For the above reasons, we cannot conclude the Commonwealth met its
“heavy burden” of demonstrating that the trial court “exceeded the bounds of
its discretion.”
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/19/2021
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