Commonwealth v. Remp

507 A.2d 345, 510 Pa. 202, 1986 Pa. LEXIS 733
CourtSupreme Court of Pennsylvania
DecidedMarch 27, 1986
DocketNo. 106 E.D. Appeal Docket 1985
StatusPublished

This text of 507 A.2d 345 (Commonwealth v. Remp) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Remp, 507 A.2d 345, 510 Pa. 202, 1986 Pa. LEXIS 733 (Pa. 1986).

Opinions

OPINION OF THE COURT

LARSEN, Justice.

The issue presented by this appeal is whether the trial court abused its discretion in denying appellee’s pre-trial motion for a continuance. We hold that, under the circumstances of this case, the trial court’s ruling did not constitute an abuse of discretion.

Appellee, Jeffrey S. Remp, was arrested on May 23, 1981 and charged with criminal homicide, murder and aggravated assault in connection with the stabbing death of a Berks County man. After an initial consultation with appellee, defense counsel went to the Berks County mental health facility and requested that a psychiatrist at the facility evaluate appellee. Pursuant to that request, on August 10, 1981, appellee was seen by one Dr. Larry Rotenberg who submitted a report to defense counsel. Subsequently, on August 12, 1981, seeking further evaluation, defense counsel filed in the Berks County Court of Common Pleas an application for leave to employ a psychiatrist and/or psychologist.1 The Commonwealth’s answer stated that it had no objection to appellee’s application and, on September 2, [204]*2041981, the application was granted. Dr. Rotenberg was thereby appointed to evaluate appellee and to aid defense counsel in the preparation of appellee’s defense.

On September 14, 1981, when the case was called for trial, defense counsel moved for a continuance on the ground that he wished to obtain an additional psychiatric examination of appellee before trial. A colloquy between the trial court and defense counsel then occurred, the essence of which was that defense counsel was unhappy with the conclusions drawn by Dr. Rotenberg as a result of Dr. Rotenberg’s examination.2 Defense counsel was groundlessly hoping that another examination might produce a different conclusion but, knowing that this was merely a whistle in the dark, had taken no steps to obtain another examination. The trial court informed defense counsel that it found defense counsel’s reasons to be without merit and, after further colloquy, on other matters, the court denied defense counsel’s request for a continuance.

At trial, appellee did not present an insanity defense but instead defended on the grounds of voluntary intoxication and diminished capacity. In this respect, appellee presented the testimony of one Dr. Peter Thomas, a clinical psychiatrist who had treated appellee off and on for some seven years prior to trial. At the conclusion of the week-long trial, appellee was found guilty by a jury of first degree murder and aggravated assault. Appellee’s post-verdict motions were denied and appellee was sentenced to life imprisonment.

On appeal, the Superior Court reversed, 338 Pa.Super. 423, 487 A.2d 1353 (Rowley, J., dissenting) and remanded for a new trial, holding that the trial court had abused its discretion and had acted with inappropriate severity and undue haste in denying appellee’s motion for a continuance. We granted the Commonwealth’s petition for allowance of appeal and we now reverse.

[205]*205The Commonwealth contends that the trial court did not abuse its discretion in denying appellee’s motion for continuance and that, therefore, the Superior Court erred in reversing the trial court’s decision. After a thorough review of the record and the opinions of the courts below, we find that the excellent dissenting opinion of Judge James E. Rowley cogently analyzes this issue. Therefore, we adopt Judge Rowley’s opinion, as follows:

“The grant or refusal of a request for continuance is a matter vested in the sound discretion of the trial court and its decision, to grant or deny the request, will not be reversed by an appellate court in the absence of an abuse of that authority. Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968). See also Commonwealth v. Slyman, 334 Pa.Super. 415, 483 A.2d 519 (1984) [Trial court did not abuse discretion in denying defendant’s request for continuance presented four days prior to trial for purpose of obtaining a named technical treatise for use at defendant’s trial on drug charges (334 Pa.Super. pp. 441-442, 483 A.2d 519) ]. In Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976), the Supreme Court, in affirming the defendant’s first degree murder conviction and life sentence, held that the trial court had not abused its discretion in denying the defendant’s motion for a continuance for the purpose of having an investigator appointed and to secure a material witness. The Court noted that an appellate court, in reviewing such a ruling, should consider the nature of the crime and its surrounding circumstances in deciding whether the denial of the requested continuance was an abuse of the trial court’s discretion. The criteria established by the Court to determine whether the trial court’s discretion was properly exercised are: (1) the necessity of the missing witness to strengthen the defendant’s case; (2) the essentiality of the witness to defendant’s defense; (3) the diligence exercised to procure his presence at trial; (4) the facts to which he could testify; and (5) the likelihood that he could be produced at the next term of court. Applying these criteria to the record in this case, I conclude [206]*206that the order entered by the trial court was fully justified and constituted an appropriate exercise of the discretion vested in the trial judge.
“When [appellee’s] motion for a continuance was presented on the day set for trial, no information was provided to the trial judge to show that Dr. Rotenberg was either necessary or essential to [appellee’s] case. Although an initial evaluation of [appellee] had been made by Dr. Rotenberg, no report, oral or written, of the evaluation was given by his counsel to the trial court for its consideration in passing on the motion. [Defense] counsel conceded that he was requesting the continuance because of a ‘possibility ’ that the doctor ‘might ’ desire to reevaluate [appellee] and because counsel would like ‘to seek’ the doctor’s advice. There was absolutely no information provided to the trial court as to what the doctor’s testimony might have been. The reasons given for the late request amount to pure speculation.
“Furthermore, it does not appear that counsel, after the appointment of the doctor by the court, had ever contacted the doctor for the purpose of scheduling a reevaluation or determining whether one would be useful or valuable. It does not even appear that, after the appointment, he attempted to contact the doctor prior to appearing before the court at 11:41 a.m. on Monday morning to commence selection of the jury. The trial court, after considering the motion, recessed court until after 1:30 p.m. that day, and it does not appear that any effort was made to substantiate [appellee’s] ‘hope’ or ‘expectation’ that further evaluation or consultation with the doctor would assist in [appellee’s] defense. Finally, although we do not have any information regarding the doctor’s initial evaluation, it is noteworthy that in response to [appellee’s] notice of an insanity defense the Commonwealth, as was its right, listed Dr.

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Related

Commonwealth v. Demmitt
321 A.2d 627 (Supreme Court of Pennsylvania, 1974)
Commonwealth v. Scott
365 A.2d 140 (Supreme Court of Pennsylvania, 1976)
Commonwealth v. DiPasquale
246 A.2d 430 (Supreme Court of Pennsylvania, 1968)
Commonwealth v. Zlatovich
269 A.2d 469 (Supreme Court of Pennsylvania, 1970)
Commonwealth v. Slyman
483 A.2d 519 (Supreme Court of Pennsylvania, 1984)
Commonwealth v. Remp
487 A.2d 1353 (Superior Court of Pennsylvania, 1985)

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Bluebook (online)
507 A.2d 345, 510 Pa. 202, 1986 Pa. LEXIS 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-remp-pa-1986.