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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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, following his jury trial 

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

license, carrying firearms on public streets in Philadelphia, 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 sets forth the relevant 

facts of this case. Therefore, we have no reason to restate 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 another person, persons 

not to possess firearms, firearms not to be carried without a license, 

carrying firearms on public streets in Philadelphia, and possessing 

instruments of crime. Appellant retained private counsel to represent 

Appellant at his preliminary hearing. Following the preliminary hearing, 

however, Appellant lacked funds to retain private counsel for trial. 

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

Appointed counsel represented Appellant through all pre-trial proceedings 

since his appointment. 

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

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

status listing conference and informed the court Appellant had retained him 

as counsel for trial. Nevertheless, private counsel stated 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 scheduled. 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 attempts to secure private 

counsel for trial. 

On March 18, 2013, the first day of trial, private counsel 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 private counsel said he was 

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

scheduled, and Appellant commenced trial with appointed counsel. 

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

murder, firearms not to be carried without a license, carrying firearms on 

public streets in Philadelphia, and possessing instruments of crime; and the 

court convicted Appellant of persons not to possess firearms.3

 That same 

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

murder conviction and imposed no further penalty for the remaining 

convictions. Appellant timely filed post-sentence motions 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, 2013, 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: 

____________________________________________ 

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. 
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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 of the parties, the 

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

Ransom, we conclude Appellant’s first and second issues on appeal merit no 

relief. The trial court opinion comprehensively discusses and properly 

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

____________________________________________ 

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 he heard argument in 

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

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

brother, testified he broke up fight between Appellant and Victim several 

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

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

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

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

Detective Grebolski testified that U.S. Marshals apprehended Appellant in 

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

with false name when taken into custody; viewing evidence 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 intentionally shot and killed 

Victim, and to reject Appellant’s testimony that he shot 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 evidence claim fails). 

Therefore, with respect to Appellant’s first and second issues 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 explain its reasons for 

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

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

between Appellant and appointed counsel or give Appellant a deadline for 

retaining private counsel. Appellant insists the court made no mention of 

whether a continuance would delay the swift administration of justice in this 

case. Appellant also complains the court improperly used 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 representation at trial, 

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

continuance request deprived Appellant of his right to counsel of his 

choosing. 

 Alternatively, Appellant claims the court erred by denying his postsentence motion for an evidentiary hearing to flesh out whether Appellant’s 

request to go forward with private counsel was timely and the circumstances 

surrounding Appellant’s continuance request. Appellant indicates the 

February 19, 2013 proceeding (where private counsel initially appeared 

before the court) was not transcribed. Appellant emphasizes the 

Commonwealth made no objection to his request to proceed with private 

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

objection because the February 19, 2013 proceeding was not transcribed. 
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Appellant avers he wrote three letters to the court complaining about 

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

to these deficiencies, Appellant contends the record was inadequate to deny 

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

this Court should vacate Appellant’s conviction and remand 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 within 

the sound discretion of the trial court and will be reversed 

only upon a showing of an abuse of discretion. 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. 

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

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

quotation marks omitted). 

____________________________________________ 

6

 The Commonwealth argues Appellant waived his third and fourth issues on 

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

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

whether private counsel made an oral motion for a continuance on 

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

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

logical extension of private counsel’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 his Rule 1925(b) 

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

claims in the context of a denial of a continuance request. 
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 With respect to the right to counsel, our Supreme Court 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 indigent, 

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 sanctions 

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 omitted). Nevertheless: 

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

not absolute. Rather, the right of the accused to choose 

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 entitled to 

choose their own counsel, they should not be permitted to 

unreasonably clog the machinery of justice or hamper and 

delay the state’s efforts to effectively administer justice.

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 omitted). 

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

so a request for continuance to secure the services of a particular counsel 

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

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

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

courts have looked to, inter alia, whether the defendant’s dissatisfaction with 
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current counsel constitutes irreconcilable differences, the number of prior 

continuances in the matter, the timing of the defendant’s continuance 

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

private counsel to proceed in a reasonable amount of time. 

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 acted 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 justice); 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, defendant did not 

request private counsel until four days before jury selection, and private 

counsel’s appointment would have disrupted schedules of court, attorneys 

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

preclude defendant from exercising right to counsel of his choosing where 

court informed private counsel he could enter his appearance 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 in light of late stage 

of prosecution at which defendant made request to change counsel and 

burden to efficient administration of justice that continuance 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 continuance request to 

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

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

when private counsel appeared in courtroom during jury selection, court 

advised counsel he could begin participation in trial immediately 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 his 

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

this case was listed for a status hearing on February 15, 

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

March 18, 2013. On February 15, 2013, the matter was 

continued until February 19, 2013, at which point [private 

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 be 

unavailable to go forward to trial on March 18, 2013. 

[Private counsel] again appeared before this [c]ourt on the 

trial date, March 18, 2013, and requested a continuance 

which was properly denied. 

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

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 of 

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 that 

[private counsel, who had initially represented Appellant at 

the preliminary hearing], was also ineffective. Appellant 

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 matter, 

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

continuance and proceeded with trial. 

(Trial Court Opinion at 10) (internal footnote omitted). 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 conference on February 

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

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

about appointed counsel. In the two letters mentioning 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, Appellant complained private 

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

____________________________________________ 

7 Notwithstanding Appellant’s contention that his letters 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 intention to retain 

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

is Appellant’s responsibility to ensure that the documents 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 ensure all documents 

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

cannot consider those documents). 
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letter to the District Attorney’s Office dated November 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 scheduling conference, 

private counsel appeared before the court, stating Appellant wished to retain 

him for trial. The court acknowledged Appellant’s request 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 sent no additional 

letters to the court complaining about appointed counsel or asking 

permission to proceed with private counsel at trial. 

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

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

again requested to represent Appellant at trial. The court informed private 

counsel that trial was ready to begin, but the court would 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. Consequently, trial began as 

scheduled with appointed counsel representing Appellant. 
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 Under the facts of this case, Appellant failed to exercise his right to 

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

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

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

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

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

appearance if he was ready to proceed with trial as scheduled, but private 

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

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

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

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

month and did nothing more to demonstrate his intent to represent 

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

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

the request under these circumstances.8

 See Antidormi, supra. See also

____________________________________________ 

8

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

distinguishable from the current case because the record in Prysock

demonstrated how defendant’s difficulties with appointed counsel pervaded 

every aspect of the criminal proceedings including appointed counsel’s 

handling of the suppression hearing, jury selection, questioning of witnesses 

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

of the defendant’s quarrels with appointed counsel required judicial 

intervention, side-bar conferences, recesses, and consultations by both the 

Commonwealth and appointed counsel with their respective senior 

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

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

(Footnote Continued Next Page) 
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Randolph, supra; Gray, supra; Boettcher, supra. The record supports 

the court’s decision, even without 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. 
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