Com. v. Broitman, S.

2019 Pa. Super. 247, 217 A.3d 297

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2019
• Docket: 2150 EDA 2018
• Status: Published

Opinion

J-A07025-19

2019 PA Super 247

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SETH BROITMAN : : Appellant : No. 2150 EDA 2018

Appeal from the Judgment of Sentence Entered May 18, 2018 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0001363-2017

BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY DUBOW, J.: FILED AUGUST 19, 2019

Appellant, Seth Broitman, appeals from the May 18, 2018 Judgment of

Sentence entered in the Montgomery County Court of Common Pleas after a

jury convicted him of Simple Assault and Harassment.1 After careful review,

we affirm.

A detailed recitation of the factual and procedural history is unnecessary

to our disposition. On December 8, 2016, the Ambler Borough Police

Department arrested Appellant and charged him with Terroristic Threats,

Simple Assault, and Harassment for threatening to kill his wife while handling

a loaded firearm. On December 5, 2017, the trial court issued an Order

scheduling Appellant’s trial for February 20, 2018. On February 15, 2018, five

days before trial and immediately before a holiday weekend, Appellant’s

counsel, David Keightly, Esq., alerted the trial court via email that Appellant ____________________________________________

1 18 Pa.C.S. § 2701(a)(3) and 18 Pa.C.S. § 2709(a)(4), respectively.

____________________________________ * Former Justice specially assigned to the Superior Court. J-A07025-19

wished to hire new counsel. On the day of trial, Appellant requested a

continuance so that newly retained counsel could represent him and informed

the court that he did not believe Attorney Keightly was prepared for trial,

disagreed with Attorney Keightly’s advice, and had already hired a new

attorney who would be prepared to proceed on March 1, 2018. Specifically,

Appellant informed the court that he preferred to proceed to a jury trial and

Attorney Keightly had advised him to agree to a bench trial or plead guilty.

N.T. Motion, 2/20/18, at 3.

Attorney Keightly motioned the court to withdraw as Appellant’s counsel

and informed the trial court that Appellant refused to communicate with him

over the weekend. Id. at 7. Attorney Keightly disagreed that he would have

told Appellant that he had to proceed in a certain way and instead stated that

he would have counseled Appellant on his options, including a bench trial or

guilty plea. Id.

The Commonwealth opposed a continuance, informed the trial court that

several witnesses were present in court to testify that day, and stated that

the Commonwealth would “face witness issues” if the court continued the trial.

Id. at 8.

The trial court denied Appellant’s request for a continuance to retain

new counsel and gave Appellant the choice to proceed to trial pro se or

continue to be represented by Attorney Keightly. Appellant chose to proceed

with representation by Attorney Keightly. After a two-day trial, a jury found

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Appellant not guilty of the most serious charge of Terroristic Threats, and

convicted him of Simple Assault and Harassment.

On May 16, 2018, the trial court sentenced Appellant to an aggregate

term of 6 days to 23 months’ incarceration followed by 1 year of probation.

On May 23, 2018, Attorney Keightly withdrew his appearance. On the same

day, Francis M. Walsh, Esq., entered his appearance on behalf of Appellant

and filed a Post-Sentence Motion, which the trial court denied.

Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal: “Did the court err in not

allowing defense counsel to withdraw from the case before trial where counsel

acknowledged a breakdown in communication with Appellant and the court

was aware that present counsel could enter his appearance and be ready to

try the case by March 1, 2018?” Appellant’s Br. at 3.

Appellant argues that the trial court abused its discretion when it refused

to grant Appellant a continuance to obtain new counsel. Id. at 7. Appellant

also avers that he was prejudiced because of the “breakdown in

communication” with Attorney Keightly, and Attorney Keightly failed to call

character witnesses on his behalf during trial. Appellant’s Br. at 10.2

____________________________________________

2 Appellant baldy asserts “there is a strong likelihood” that the jury would have

acquitted Appellant of all charges with character evidence. Appellant’s Br. at 10.

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The decision to grant or deny a continuance request rests with the sound

discretion of the trial court and we will not reverse the decision absent a clear

abuse of discretion. Commonwealth v. McAleer, 748 A.2d 670, 673 (Pa.

2000). This Court will not find an abuse of discretion if the denial of the

continuance request did not prejudice the appellant. Commonwealth v.

Pettersen, 49 A.3d 903, 914 (Pa. Super. 2012). In order to demonstrate

prejudice, the appellant “must be able to show specifically in what manner he

was unable to prepare his defense or how he would have prepared differently

had he been given more time.” Commonwealth v. Ross, 57 A.3d 85, 91

(Pa. Super. 2012) (citation omitted).

Both the Sixth Amendment to the United States Constitution and Article

I, Section 9 of the Pennsylvania Constitution guarantee a defendant’s right to

counsel. McAleer, 748 A.2d at 673. “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.” Id.

(internal quotation marks and citation omitted).

However, a defendant’s constitutional right to counsel of his choice is

not absolute and “must be weighed against and may be reasonably restricted

by the state’s interest in the swift and efficient administration of criminal

justice.” Commonwealth v. Robinson, 364 A.2d 665, 674 (Pa. 1976)

(internal quotation marks omitted). This Court cannot permit a defendant to

utilize this right “to clog the machinery of justice and hamper and delay the

state in its efforts to do justice with regard both to him and to others whose

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rights to speedy trial may thereby be affected.” Id. A defendant’s right to

choose private counsel “must be exercised at a reasonable time and in a

reasonable manner.” Commonwealth v. Rucker, 761 A.2d 541, 542-43 (Pa.

2000) (citation and emphasis omitted).

In Commonwealth v. Prysock, 972 A.2d 539 (Pa. Super. 2009), this

Court set forth the following factors to consider on appeal from a trial court's

ruling on a continuance motion to obtain private representation: (1) whether

the court conducted an extensive inquiry into the underlying causes of

defendant’s dissatisfaction with current counsel; (2) whether the defendant’s

dissatisfaction with current counsel constituted irreconcilable differences; (3)

the number of prior continuances; (4) the timing of the motion for

continuance; (5) whether private counsel had actually been retained; and (6)

the readiness of private counsel to proceed in a reasonable amount of

time. Prysock, 972 A.2d at 543.

Here, our review of the record reveals that the trial court conducted an

inquiry into Appellant’s dissatisfaction with Attorney Keightly, which amounted

to legal advice that Appellant did not want to accept; Appellant requested the

continuance on the eve of trial, which the court had scheduled two months

prior; Appellant had already retained new counsel at the time of his request;

and new counsel was not immediately ready to proceed to trial. See id. Based

on these facts, the trial court concluded that postponing the trial would create

an undue burden for the Commonwealth’s witnesses who were present and

ready to proceed, and would have caused “too great of an imposition on both

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the Commonwealth and [the trial court]’s already crowded schedule.” Trial

Ct. Op., filed 8/24/18, at 4. The trial court also found that Appellant’s request

for new counsel and a continuance on the eve of trial was not made within a

reasonable time or in a reasonable manner. Id. Accordingly, the trial court

denied Appellant’s request for new counsel and a continuance.

The trial court properly weighed Appellant’s right to counsel against the

Commonwealth’s interest in the swift and efficient administration of criminal

justice. See Robinson, 364 A.2d at 674. We find no abuse of discretion in

the trial court’s denial of Appellant’s request for new counsel and a

continuance on the day of the scheduled jury trial. See Commonwealth v.

Novak, 150 A.2d 102, 109-10 (Pa. 1959) (holding the defendant’s request to

change counsel on the day of trial was properly denied).3

Moreover, Appellant fails to demonstrate prejudice. Appellant’s

argument that that he was prejudiced because trial counsel did not call

character witnesses lacks merit. The trial court did not require Appellant to

be represented by Attorney Keightly but rather gave Appellant the choice to

appear pro se or remain represented by Attorney Keightly. Appellant chose

the latter and, as the trial court highlighted, “it should be noted that after such

3 In his Brief, Appellant cites numerous cases to support his argument that

the trial court abused its discretion when it denied Appellant’s request for new counsel and a continuance. As Appellant concedes, however, “none of these cases are directly on point.” Appellant’s Br. at 15. We agree and decline to discuss them.

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representation, [Appellant] was acquitted by the jury on the most serious

charge of [T]erroristic [T]hreats.” Trial Ct. Op. at 5-6.

In conclusion, the trial court properly weighed Appellant’s right to

counsel of his choice against the state’s interest in proceeding to trial and

determined that Appellant’s last minute request would burden the

Commonwealth, the Commonwealth’s witnesses, and the trial court.

Appellant failed to demonstrate that he was prejudiced by the trial court’s

decision. Thus, the trial court did not abuse its discretion when it denied

Appellant’s request for new counsel and a continuance.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/19/19

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