### J-A17008- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARL SMITH

Appellant No. 2178 EDA 2013

Appeal from the Judgment of Sentence March 25

, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP

- 51

- CR -0008870-2011

BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 16, 2014

Appellant, Carl Smith, appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas, fo llowing his jury trial

convictions for first-degree murder, firearms not to be carried without a

license, carrying firearms on public streets in Philadelph ia, and possessing

instruments of crime; 1 

### and bench trial conviction for persons not to possess

firearms. 2 

### We affirm.

In its opinion, the trial court fully and correctly set s forth the relevant

facts of this case. Therefore, we have no reason to rest ate them.

Procedurally, the Commonwealth charged Appellant with murder, attempted

____________________________________________

1 

### 18 Pa.C.S.A. §§ 2502(a); 6106(a)(1); 6108; 907(a), respectively.

2 

### 18 Pa.C.S.A. § 6105.

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murder, aggravated assault, recklessly endangering ano ther person, persons

not to possess firearms, firearms not to be carried withou t a license,

carrying firearms on public streets in Philadelphia, and possessing

instruments of crime. Appellant retained private counse l to represent

Appellant at his preliminary hearing. Following th e preliminary hearing

,

however, Appellant lacked funds to retain private cou nsel for trial.

Subsequently, the court assigned “appointed counsel” on Au gust 30, 2011.

Appointed counsel represented Appellant through all p re-trial proceedings

since his appointment.

On February 19, 2013, one month before Appellant’s scheduled tria l

date of March 18, 2013, private counsel appeared befor e the court at a

status listing conference and informed the court Appella nt had retained him

as counsel for trial. Nevertheless, private counsel state d he was unable to

proceed to trial as scheduled, due to his caseload. The court told private

counsel that trial would not be delayed, and private counsel should enter his

appearance only if he would be ready for trial as sche duled. Private counsel

did not enter his appearance. Meanwhile, appointed counsel continued to

represent Appellant until the scheduled trial date. Between the status listing

conference and trial, Appellant made no further attem pts to secure private

counsel for trial.

On March 18, 2013, the first day of trial, private cou nsel and

appointed counsel appeared before the court and again stated Appellant’s

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request to go forward with private counsel. The court asked private counsel

if he was prepared to begin trial that day, and priv ate counsel said he was

not. Consequently, the court told the parties that tr ial would begin as

scheduled, and Appellant commenced trial with appoint ed counsel.

On March 25, 2013, the jury convicted Appellant of fi rst-degree

murder, firearms not to be carried without a license, ca rrying firearms on

public streets in Philadelphia, and possessing instrumen ts of crime; and the

court convicted Appellant of persons not to possess firearm s. 3 

### That same

day, the court sentenced Appellant to life imprisonment for the first-degree

murder conviction and imposed no further penalty for t he remaining

convictions. Appellant timely filed post-sentence motion s on March 28,

2013, which he amended on June 27, 2013. 4 

### The court denied Appellant’s

post-sentence motions by operation of law on July 29, 2 013, and Appellant

timely filed his notice of appeal that same day. On August 2, 2013, the

court ordered Appellant to file a concise statement of errors complained of

on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his concise

statement on August 7, 2013.

Appellant raises the following issues for our review:

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3 

### The court entered nolle prosequi on the remaining charges at the

Commonwealth’s request.

4 

### Private counsel represented Appellant for post-sentence motion filings and

continues to represent Appellant on appeal.

### J-A17008- 14

- 4 - WAS THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW

TO SUPPORT A CONVICTION INSOMUCH AS THE

COMMONWEALTH DID NOT OFFER RELIABLE, BELIEVABLE

EVIDENCE THAT [APPELLANT] HAD THE REQUISITE

INTENT TO COMMIT A MURDER IN THE FIRST DEGREE?

WAS THE VERDICT AGAINST THE WEIGHT OF THE

EVIDENCE FOR THE REASONS DISCUSSED IN [ISSUE

ONE] AND WAS THE VERDICT AGAINST THE WEIGHT OF

THE EVIDENCE BECAUSE NO REASONABLE JURY WOULD

DISBELIEVE [APPELLANT’S] TESTIMONY?

DID THE COURT ABUSE ITS DISCRETION BY PREVENTING

[APPELLANT] FROM HAVING THE LAWYER OF HIS

CHOOSING BY FAILING TO GRANT A TIMELY,

REASONABLE, AND UNOPPOSED CONTINUANCE REQUEST

AND INSTEAD FORCING [APPELLANT] TO GO TO TRIAL

WITH A COURT-APPOINTED LAWYER?

DID THE COURT ERR BY FAILING TO SCHEDULE AN

EVIDENTIARY HEARING SO THAT THE NATURE AND

TIMING OF [APPELLANT’S] CONTINUANCE REQUEST

COULD BE ADDITIONALLY FLESHED OUT ON THE RECORD

AND SO THAT [APPELLANT] COULD PUT EVIDENCE ON THE

RECORD THAT THE COURT ABUSED ITS DISCRETION

BECAUSE HAD THE CONTINUANCE BEEN GRANTED, THE

COURT WOULD HAVE BEEN ABLE TO HANDLE OTHER

CASES?

(Appellant’s Brief at 7). 5



### After a thorough review of the record, the briefs o f the parties, the

applicable law, and the well-reasoned opinion of the Honorable Lillian H.

Ranso m, we conclude Appellant’s first and second issues on app eal merit no

relief. The trial court opinion comprehensively discusse s and properly

disposes of those questions. ( See Trial Court Opinion, filed December 24,

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5 

### We have reordered Appellant’s issues.

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2013, at 4-9) (finding: (1) Commonwealth presented testimony from

several witnesses who identified Appellant as person who killed Victim;

Julian Morales gave signed statement to police stating h e heard argument in

alleyway behind his house prior to shooting and saw “C” fire gun; Mr.

Morales ide ntified Appellant as “C” in photo array; Evan Claude, Victim’s

brother, testified he broke up fight between Appella nt and Victim several

days before shooting; Mr. Claude and Victim saw Appella nt with gun on day

of shooting, and Victim told Appellant to put gun dow n and fight him; Mr.

Claude witnessed Appellant open fire on Victim; Mr. C laude gave police

description of Appellant and told police that Appellan t shot Victim in head;

Detective Grebolski testified that U.S. Marshals apprehe nded Appellant in

Macon, Georgia four days after shooting, and Appellant supplied authorities

with false name when taken into custody; viewing evid ence in light most

favorable to Commonwealth as verdict winner, evidence was sufficient to

support Appellant’s first -degree murder conviction; (2) jury was free to

credit Mr. Claude’s testimony that Appellant intentio nally shot and killed

Victim, and to reject Appellant’s testimony that he sh ot near Victim as

“warning” and did not intend to shoot Victim; Appellant ’s guilty verdict does

not shock one’s conscience; thus, Appellant’s weight of ev idence claim fails).

Therefore, with respect to Appellant’s first and second i ssues on appeal, we

affirm on the basis of the trial court’s opinion.

We have combined Appellant’s third and fourth issues for purposes of

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disposition. Appellant argues the court failed to expl ain its reasons for

denying Appellant’s request to proceed with private cou nsel at trial.

Appellant asserts the court did not conduct an inquiry into the disputes

between Appellant and appointed counsel or give Appel lant a deadline for

retaining private counsel. Appellant insists the court m ade no mention of

whether a continuance would delay the swift administrat ion of justice in this

case. Appellant also complains the court improperly use d the amount of

time appointed counsel had represented Appellant prior to trial to justify the

denial of Appellant’s continuance request. Appellant maintains he requested

a continuance to ensure he would have competent represen tation at trial,

not to delay the proceedings. Appellant contends the co urt’s denial of his

continuance request deprived Appellant of his right to counsel of his

choosing.

Alternatively, Appellant claims the court erred by d enying his postsentence motion for an ev identiary hearing to flesh out whether Appellant’s

request to go forward with private counsel was timely a nd the circumstances

surrounding Appellant’s continuance request. Appellant indicates the

February 19, 2013 proceeding (where private counsel in itially appeared

before the court) was not transcribed. Appellant empha sizes the

Commonwealth made no objection to his request to procee d with private

counsel but concedes the record fails to reflect the Common wealth’s lack of

objection because the February 19, 2013 proceeding was n ot transcribed.

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Appellant avers he wrote three letters to the court co mplaining about

appointed counsel, some of which are missing from the cert ified record. Due

to these deficiencies, Appellant contends the record was i nadequate to deny

Appellant’s post -sentence motion without a hearing. Appellant conclude s

this Court should vacate Appellant’s conviction and reman d for a new trial or

alternatively, remand for a hearing so Appellant can supplement the record

with regard to this issue. 6 

### We disagree.

Our standard of review is as follows:

The grant or denial of a motion for a continuance is w ithin

the sound discretion of the trial court and will be rev ersed

only upon a showing of an abuse of discretion. An abuse

of discretion is not merely an error of judgment; rat her

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.

Commonwealth v. Antidormi , 84 A.3d 736, 745 (Pa.Super. 2014), appeal

denied , ___ Pa. ___, ___ A.3d ___ (July 7, 2014) (interna l citations and

quotation marks omitted).

____________________________________________

6 

### The Commonwealth argues Appellant waived his third a nd fourth issues on

appeal because he did not formally request a continuance . Because the

February 19, 2013 proceeding was not transcribed, we a re unable to verify

whether private counsel made an oral motion for a con tinuance on

Appellant’s behalf at that time. Nevertheless, the cou rt treated Appellant’s

request to proceed with private counsel as a motion for a continuance, as a

logical extension of private coun sel’s statement that he would be unprepared

to proceed at trial as scheduled. The record makes clear Appellant

preserved these issues in his post-sentence motions and in hi s Rule 1925(b)

statement. Thus, we decline to waive the issues and will treat Appe llant’s

claims in the context of a denial of a continuance re quest.

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With respect to the right to counsel, our Supreme Cou rt has stated:

The right to counsel is guaranteed by both the Sixth

Amendment to the United States Constitution and by

Article I, Section 9 of the Pennsylvania Constitution. In

addition to guaranteeing representation for the indi gent,

these constitutional rights entitle an accused to choose at

his own cost and expense any lawyer he may desire. The

right to counsel of one’s own choosing is particularly

significant because an individual facing criminal sanction s

should have great confidence in his attorney.

Commonwealth v. McAleer , 561 Pa. 129, 136, 748 A.2d 670, 673 (2000)

(internal citations, quotation marks, and footnote om itted). Nevertheless:

[T]he constitutional right to counsel of one’s own choice is

not absolute. Rather, the right of the accused to choo se

his own counsel, as well as the lawyer’s right to choose his

own clients, must be weighed against and may be

reasonably restricted by the state’s interest in the swift

and efficient administration of criminal justice. Thus, this

Court has explained that while defendants are entitle d to

choose their own counsel, they should not be permitted to

unreasonably clog the machinery of justice or hamper a nd

delay the state’s efforts to effectively administer jus tice.

Commonwealth v. Randolph , 582 Pa. 576, 584, 873 A.2d 1277, 1282

(2005), cert. denied , 547 U.S. 1058, 126 S.Ct. 1659, 164 L.Ed.2d 402

(2006) (internal citations and quotation marks omitte d).

Additionally, a defendant has no absolute right to a particular counsel,

so a request for continuance to secure the services of a par ticular counsel

may, in the court’s discretion, be denied. Commonwealth v. Thomas , 879

A.2d 246, 261 (Pa.Super. 2005). When considering whe ther to grant or

deny a continuance based on a defendant’s request for ne w private counsel,

courts have looked to, inter alia , whether the defendant’s dissatisfaction with

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current counsel constitutes irreconcilable differences, the n umber of prior

continuances in the matter, the timing of the defendan t’s continuance

request, whether private counsel was actually retained, and the readiness of

private counsel to proceed in a reasonable amount of ti me.

Commonwealth v. Prysock , 972 A.2d 539 (Pa.Super. 2009). See also

Commonwealth v. Brewington , 740 A.2d 247 (Pa.Super. 1999), appeal

denied , 563 Pa. 626, 758 A.2d 660 (2000) (holding court act ed within its

discretion in denying defendant’s continuance request to retain private

counsel, where court had previously granted ten defense continuances and

further delay would hinder swift administration of ju stice); Commonwealth

v. Gray , 608 A.2d 534 (Pa.Super. 1992) (holding trial court ’s denial of

continuance request to retain private counsel was proper, where appointed

counsel represented defendant for almost two years, defe ndant did not

request private counsel until four days before jury sel ection, and private

counsel’s appointment would have disrupted schedules of co urt, attorneys

for defendant’s co -defendants, as well as trial witnesses; court did not to tally

preclude defendant from exercising right to counsel of h is choosing where

court informed private counsel he could enter his appe arance if he was ready

to proceed after voir dire was complete, but private counsel declined; it was

necessary to place limits on defendant’s right to counsel i n light of late stage

of prosecution at which defendant made request to change counsel and

burden to efficient administration of justice that conti nuance at that juncture

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would cause); Commonwealth v. Boettcher , 459 A.2d 806 (Pa.Super.

1983) (holding court properly denied defendant’s conti nuance request to

proceed with private counsel, where defendant made req uest on day of trial,

appointed counsel was well-prepared to represent defend ant at trial, and

when private counsel appeared in courtroom during jury selection, court

advised counsel he could begin participation in trial im mediately but private

counsel declined to do so).

Instantly, the trial court explained its reasons for denying Appellant’s

continuance request as follows:

In the instant matter, [appointed] counsel entered hi s

appearance on August 30, 2011. On February 1, 2012,

this case was listed for a status hearing on February 1 5,

2013, and listed for a five (5) day jury trial schedul ed for

March 18, 2013. On February 15, 2013, the matter wa s

continued until February 19, 2013, at which point [pr ivate

counsel] appeared before this [c]ourt on behalf of

Appellant. [Private counsel] advised this [c]ourt that he

had been retained to represent Appellant but would b e

unavailable to go forward to trial on March 18, 2013

. [Private counsel] again appeared before this [c]ourt o n the

trial date, March 18, 2013, and requested a continuanc e

which was properly denied.

At the time of trial, [appointed counsel] had been ass igned

to Appellant’s matter for over one and one -half (11⁄2)

years. This [c]ourt was satisfied that [appointed] counsel

was prepared to provide Appellant effective assistance o f

counsel. This [c]ourt did receive letters regarding

Appellant’s wish to have new counsel, making claims of

ineffective assistance of counsel. However, this [c]ourt

also received a letter on November 7, 2012, claiming t hat

[private counsel, who had initially represented Appell ant at

the preliminary hearing], was also ineffective. Appel lant

claimed that [private counsel] had previously failed to

advise Appellant regarding the filing of a Motion to Quash

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- that would have been beneficial to Appellant at his

Preliminary Hearing. Based on this finding and this

[c]ourt’s calendar of availability to adjudicate this ma tter,

this [c]ourt properly denied Appellant’s request for a

continuance and proceeded with trial.

(Trial Court Opinion at 10) (internal footnote omit ted). We agree.

The record reveals the following chronology of events. Appointed

counsel represented Appellant throughout the pre-trial proceedings since his

appointment on August 30, 2011. At a scheduling confer ence on February

1, 2012, the court put Appellant on notice that tria l would begin on March

18, 2013. During 2012, Appellant wrote two letters to the court complaining

about appointed counsel. In the two letters mentionin g appointed counsel,

Appellant requested the appointment of new counsel but did not indicate

that he planned to retain private counsel. 7 

### Appellant likewise wrote letters

criticizing private counsel’s earlier representation of Appellant. Specifically,

in a letter to the court dated October 31, 2012, App ellant complained private

counsel had failed to advise Appellant about a motion to quash. In another

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7 

### Notwithstanding Appellant’s contention that his lette rs concerning

appointed counsel are missing from the certified record, the record contains

two letters from Appellant discussing appointed counsel. Appellant claims he

wrote the court a third letter specifically stating his i ntention to retain

private counsel. Nevertheless, this letter is not in the certified record; and it

is Appellant’s responsibility to ensure that the document s he wants this

Court to review are included in the certified record. See Commonwealth

v. Manley , 985 A.2d 256 (Pa.Super. 2009), appeal denied , 606 Pa. 671,

996 A.2d 491 (2010) (stating appellant has duty to e nsure all documents

essential to his case are included in certified record; o therwise, this Court

cannot consider those documents).

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letter to the District Attorney’s Office dated Novembe r 5, 2012, Appellant

alleged private counsel incorrectly informed Appellant that he was facing a

capital charge.

On February 19, 2013, over a year after the schedulin g conference,

private counsel appeared before the court, stating Appe llant wished to retain

him for trial. The court acknowledged Appellant’s re quest and indicated it

would allow private counsel to enter his appearance if he could proceed on

the scheduled trial date. Private counsel stated he was unable to do so due

to preparation for another case. Private counsel did not enter his

appearance. Additionally, Appellant made no formal request for a

continuance at that time. Between February 19, 2013 and March 18, 2013,

Appellant made no attempts to secure a continuance and se nt no additional

letters to the court complaining about appointed counse l or asking

permission to proceed with private counsel at trial.

On March 18, 2013, appointed counsel and private counse l appeared

before the court on the scheduled trial date. At that time, private counsel

again requested to represent Appellant at trial. Th e court informed private

counsel that trial was ready to begin, but the court wo uld allow private

counsel to enter his appearance if he was ready to try the case. Private

counsel stated he was still unprepared to go forward and gave no indication

as to when he would be prepared for trial. Consequen tly, trial began as

scheduled with appointed counsel representing Appellant

.

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-

Under the facts of this case, Appellant failed to ex ercise his right to

counsel of his choosing within a reasonable time. Appell ant was fully aware

of the scheduled trial date as of February 1, 2012, ye t he waited until one

month before trial to express his desire to retain priv ate counsel. Moreover,

the court did not completely preclude Appellant from exercising his right to

counsel of his choosing, where it informed private counse l he could enter his

ap pearance if he was ready to proceed with trial as schedu led, but private

counsel failed to do so. See Gray, supra . Notably, private counsel made

no mention of when he would be ready to try Appella nt’s case. Private

counsel knew on February 19, 2013, that the court inte nded to proceed with

trial as scheduled, yet private counsel failed to prepar e for trial over the next

month and did nothing more to demonstrate his intent to represent

Appellant at trial as scheduled. Instead, private coun sel appeared in court

on the day of trial to request a continuance. The cour t reasonably denied

the request under these circumstances. 8 

### See Antidormi, supra

. See also

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8 

### Appellant relies on Prysock, supra . The facts of Prysock , however, are

distinguishable from the current case because the record i n Prysock

demonstrated how defendant’s difficulties with appoint ed counsel pervaded

every aspect of the criminal proceedings including appoi nted counsel’s

handling of the suppression hearing, jury selection, que stioning of witnesses

at trial, and refusal to call requested character witnesse s. In Prysock , each

of the defendant’s quarrels with appointed counsel requ ired judicial

intervention, side-bar conferences, recesses, and consultati ons by both the

Commonwealth and appointed counsel with their respectiv e senior

colleagues. See id. at 545. Thus, this Court determined the trial court had

abused its discretion when it denied the defendant’s req uest for a

(Footnote Continued Next Page)

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-

Randolph, supra ; Gray, supra ; Boettcher, supra . The record supports

the court’s decision, even withou t a transcript from the February 19, 2013

proceeding; thus, Appellant’s alternative plea for an evidentiary hearing

affords no relief. Therefore, Appellant’s third and fourth issues on appeal

merit no relief. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2014

(Footnote Continued)

_______________________



### continuance to proceed with private counsel. Id. Given the stark

differences between Prysock and the present case, Prysock is not

dispositive.Circulated 08/20/2014 04:01 PMCirculated 08/20/2014 04:01 PMCirculated 08/20/2014 04:01 PMCirculated 08/20/2014 04:01 PMCirculated 08/20/2014 04:01 PMCirculated 08/20/2014 04:01 PMCirculated 08/20/2014 04:01 PM