J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA, 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

, 201 8

In the Court of Common Pleas of Jefferson County

Criminal Division at No(s): CP

- 33

- CR

- 000 0571

- 201 7

BEFORE: BENDER, P.J.E., OTT

, J., and STRASSBURGER, J. *

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 26, 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 o rganization s , 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 substanc e, 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 motion s to continue. After careful

review, we affirm.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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Appellant was arrested on Au gust 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 app eal 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 “a dditional

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 me dical testing[.]” Id.

Furthermore, the motion indicated that “additional medical records had to be

obtained.” Id. This motio n was denied on February 21, 201 8, the same day

it was filed. The trial took place as scheduled and resulted in Appellant’sJ

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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 a buse it’s [ sic ] discretion by denying [Appellant’s ]

motions to continue the trial?

Appellant’s brief at 4. 2

On May 21, 2019, this Court filed a memorandum decision affirming

Appellant’s judgment of sentence. Appellant thereafter filed a petition for

reconsideration, which the panel granted. After careful review, we again

affirm for the reasons set forth infra

.

Initially, we note the following:

Appellate review of a trial court’s continuance decision is

deferential. The grant or denial of a motion fo r 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[.]

_________________ __________ ______ ____ _______

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 t his issue by failing to include it in his brief to this

Court.J

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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.”

Commonwealth v. Sandusky

, 77 A.3d 663, 671 (Pa. Sup er.

2013) (quotation omitted). However, the trial court exceeds the

bounds of its discretion when it denies a con tinuance on the basis

of “ an unreasonable and arbitrary insistence upon expeditiousness

in the face of a j ustifiable 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 continua nce, 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 motion s 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 investigat ion of the items seized and wit nesses 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 thisJ

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matter f or 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.

In its opinion, the court noted that the initial request for a continuance

occurred more than a month before the scheduled trial. Thus, r elative 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. T he 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, recomme nded 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 w hich [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 discreditJ

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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 additi onal testing beyond

Dr. Martone’ s evaluation.

There bei ng 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

st and trial, therefore, it was no[t] error to do so. Accordingly,

neith er 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 requ est 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 hi s right to a fair trial. The co urt’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 files a concurring statement.

Judge Strassburger files a dissenting memorandum.J

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/26/2019