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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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