Commonwealth v. Antidormi

• Citation: 2014 PA Super 10,84 A.3d 736
• Court: Superior Court of Pennsylvania
• Decision Date: 23 January 2014
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Gino ANTIDORMI, Appellant.

84 A.3d 736

2014 PA Super 10

COMMONWEALTH of Pennsylvania, Appellee

v.Gino ANTIDORMI, Appellant.

Superior Court of Pennsylvania.

Submitted April 15, 2013.

Filed Jan. 23, 2014.

Richard B. Henry, Honesdale, for appellant.

Janine Edwards, District Attorney, Honesdale, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, J., and WECHT, J.

OPINION BY WECHT, J.

Gino Antidormi (“Appellant”) appeals from his August 9, 2012 judgment of sentence. We affirm.

Appellant was arrested following a July 21, 2011 incident on Mill Brook Road in Cherry Ridge Township, Wayne County, Pennsylvania. Early on that morning, Appellant and three other occupants of a PT Cruiser were driving in the area and shooting firearms out of the vehicle. In the course of these events, a bullet was fired into a residence located at 87 Mill Brook Road. Shortly thereafter, local residents blockaded the road with their own vehicles and forced the joyriders to abandon their vehicle and flee on foot. The Pennsylvania State Police were alerted that same morning. After investigating the abandoned vehicle and interviewing three individuals suspected of being involved in the incident—Cody Reck, William Christopher Harper, and Gary Stephen Burton II—the Pennsylvania State Police obtained an arrest warrant for Appellant and the three interviewees that same day. The firearms used in the incident were recovered near the abandoned vehicle on or about July 23, 2011.

The trial court has summarized the remaining facts and procedural history of this case as follows:

On September 8, 2011, the Commonwealth filed an Information alleging [that Appellant had committed the following crimes:] Discharge of a Firearm into [an] Occupied Structure ¹; CriminalConspiracy ²; Recklessly Endangering Another Person ³; Criminal Mischief[—]Damage Property ⁴; Persons Not to Possess, Use[ Firearms ⁵; and Prohibited Offensive Weapons.⁶] At issue in [Appellant's] appeal is only the charge for Persons Not to Possess, Use[ ] Firearms. The Information alleged [that Appellant], having been previously convicted of an offense enumerated in 18 Pa.C.S. § 6105(b), possessed a sawed-off shotgun and a semi-automatic rifle on July 21, 2011.

[Appellant] was originally represented by Steven Burlein, Esq., a public defender. [Appellant's] trial was scheduled for November 8, 2011. On October 2[1], 2011, the trial was continued to January 2012 upon request of [Appellant]. On January 17, 2012, [Appellant] entered a guilty plea to Criminal Mischief and Persons Not to Possess[, Use] Firearms. On April 5, 2012, during his Sentencing Hearing, [Appellant] made certain demands upon the Sentencing Court. At that time, [Appellant] withdrew his guilty plea.

After Attorney Burlein filed a petition to withdraw as counsel, this Court appointed Pamela S. Wilson, Esq. to serve as counsel for [Appellant], due to [Appellant's] conflict with the Public Defender's Office. [Appellant's] case was set for trial in May 2012. Attorney Wilson requested a continuance to allow for sufficient time to prepare for trial. The motion for a continuance was granted and the case was continued until July 2012. On June 21, 2012, [Appellant] again requested a continuance, which [the trial court] denied. On June 25, 2012, [Appellant] again requested a continuance, which was denied. [Appellant's] jury was selected on July 10, 2012. [Appellant's] jury trial was set to begin on July 16, 2012[,] at 9:00 a.m. On July 16, 2012, [Attorney] Michael Pisanchyn requested a continuance stating that he had just been retained by [Appellant] on Friday, July 1[3], 2012. After the Commonwealth summarized the extensive history of this case, the [c]ourt denied the request for a continuance stating the case had been going on too long. Following the denial of the continuance, Attorney Wilson made an oral motion to withdraw as counsel. The Commonwealth objected to the withdrawal of Attorney Wilson. [Appellant] and Attorney Pisanchyn agreed to allow Attorney Wilson to withdraw, and the [t]rial [c]ourt granted the motion of Attorney Wilson.

On July 17, 2012, a jury found [Appellant] guilty of [Persons] Not to Possess[, Use] Firearms. Following the guilty verdict, [Appellant] entered a guilty plea to the charges of Recklessly Endangering Another Person and Criminal Mischief[-]Damage Property. Following [Appellant's] August 9, 2012 [ ] Sentencing Hearing, [Appellant's] private counsel, Attorney Pisanchyn, withdrew his appearance. Ultimately, Richard B. Henry, Esq. was appointed to serve as counsel for [Appellant's] post-trial motions.

[The trial court] did not order [Appellant] to submit a Concise Statement of [Errors] Complained of on Appeal. Presumably without the assistance of his newly appointed counsel, [Appellant] filed a Statement of Matters Complained of on Appeal and an Amended Statement of Matters Complained of on Appeal. In his Statement of Matters Complained of on Appeal and his Amended Statement of Matters Complained of on Appeal, [Appellant] asserts error made by the [trial court] and the Prosecution.⁷

Trial Court Opinion (“T.C.O.”), 11/3/2012, at 1–3.

Appellant raises the following issues for our consideration:

1. Whether the Trial Court erred in denying Appellant's request for continuance on the eve of trial?

2. Whether the Trial Court erred in denying Appellant's request for mistrial due to the fact that the Commonwealth had failed to disclose a potentially exculpatory finger print [ sic ] report?

3. Whether the Trial Court erred in denying Appellant's objection to the relevance and admission of peripheral and prejudicial testimony and evidence regarding a shooting spree potentially involving the Appellant?

4. Whether the Trial Court erred in its charge to the jury, erred in allowing replay of testimony and was the subject verdict slip proper?

5. Whether the evidence was sufficient to support a conviction of person to possess a firearm or was the conviction against the weight of the evidence?

6. Whether the Trial Court erred as a matter of law and/or committed an abuse of its discretion in imposing the sentence of August 9, 2012?

Brief for Appellant at 5. We will address each of Appellant's issues in turn.

In his first claim, Appellant alleges that the trial court erred in denying Appellant's fifth continuance request. Appellant argues that “[t]his denial jeopardized and imperiled [Appellant's] right to a full and complete defense at his trial.” Brief for Appellant at 11. We disagree.

Our standard of review is well-established. “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.” Commonwealth v. Boxley, 596 Pa. 620, 948 A.2d 742, 746 (2008) (citing Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (2005)). “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[.]” Id. (internal quotation marks omitted). Moreover, “[a] bald allegation of an insufficient amount of time to prepare will not provide a basis for reversal of the denial of a continuance motion.” Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super.2012) (citing Commonwealth v. Ah Thank Lee, 389 Pa.Super. 201, 566 A.2d 1205, 1206 (1989)). “An appellant must be able to show specifically in what manner he was unable to prepare for his defense or how he would have prepared differently had he been given more time. We will not reverse a denial of a motion for continuance in the absence of prejudice.” Id. (quoting Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295, 298 (1986)).

The record reveals that the trial court granted Appellant's first two requests for continuances on October 21, 2011, and May 15, 2012. Thereafter, Appellant made three additional continuance motions on June 21, June 25, and July 16, 2012, each of which was denied. The trial court has aptly responded to Appellant's assertion that Attorney Pisanchyn “had no time whatsoever to prepare for trial,” Brief for Appellant at 13, in its Rule 1925(a) opinion:

[I]t is clear that [Appellant] did not exercise his right to choose private counsel at a reasonable ⁸ time. [Appellant] chose his private counsel three days prior to the start of trial. The Court had appointed counsel to [Appellant] on two other occasions in this matter. At the start of trial, [Appellant] was represented by private counsel and [ ] court-appointed counsel. [Appellant] elected not to object to the withdrawal of his court-appointed counsel. Further, the record in this case demonstrates that Attorney Pisanchyn's only reason for requesting the continuance was the fact that he was recently retained. Attorney Pisanchyn's bald assertion of an insufficient amount of time to prepare is not sufficient. Additionally, neither [Appellant] nor his counsel stated specifically how counsel would have prepared differently had counsel been given more time. [Appellant] has not, in any manner, indicated how he was prejudiced by the denial of his continuance.

T.C.O. at 8 (emphasis added). Appellant, again, has failed specifically to articulate how Attorney Pisanchyn would have prepared differently had the trial court granted Appellant's serial continuance motion. Appellant's brief is devoid of any such assertions. Appellant's claim amounts to a “bald allegation” of insufficient time to prepare. See Ross, 57 A.3d at 91.

We observe that the trial court granted Appellant's first two continuance requests to allow him to prepare for trial. Furthermore, this Court has “repeatedly condemned the practice of waiting until the day of trial to request a continuance for the purpose of obtaining a new attorney.” Commonwealth v. Boettcher, 313 Pa.Super. 194, 459 A.2d 806, 810 (1983) (citing Commonwealth v. Nicolella, 307...