Commonwealth v. McAleer

• Decision Date: 24 March 2000
• Citation: 748 A.2d 670,561 Pa. 129
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Sean Patrick McALEER, Appellant.
• Court: Pennsylvania Supreme Court

748 A.2d 670

561 Pa. 129

COMMONWEALTH of Pennsylvania, Appellee, v. Sean Patrick McALEER, Appellant.

Supreme Court of Pennsylvania.

Argued October 21, 1999.

Decided March 24, 2000.

J. Scott O'Keefe, Philadelphia, for Sean Patrick McAleer.

Marian R. Ragusa, Asst. Dist. Atty., Stephen B. Harris, Chief of Appeals, Alan M. Rubenstein, Dist. Atty., for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

NIGRO, Justice.

In this appeal, Appellant Sean Patrick McAleer argues that the calendar court judge¹ abused his discretion when he denied Appellant's request for a continuance. We agree and therefore reverse.

In October of 1996, the Commonwealth charged Appellant with simple assault, false imprisonment and related charges.² The district magistrate in Fallsington, Pennsylvania, scheduled a preliminary hearing for March 18, 1997, at which time Richard Hoy, Esquire, represented Appellant.³ At the conclusion of that hearing, Appellant was bound over for trial in the Court of Common Pleas of Bucks County and informed that his arraignment would take place on April 18, 1997. At the arraignment hearing on April 18th, Mr. Hoy entered his appearance by facsimile. Thereafter, the case was scheduled for trial on April 21, 1997.

On April 21st, the District Attorney's office informed the calendar court judge that it had communicated with Mr. Hoy that morning and learned that he was attached for trial in Philadelphia County. The calendar judge continued the case until the following day. This scenario was essentially repeated on April 22nd. On April 23rd, the District Attorney's office informed the court that it had again communicated with Mr. Hoy and learned that although Mr. Hoy was still attached for trial in Philadelphia, his "associate," Gary Feldman, Esquire would be arriving to represent Appellant.⁴ Upon hearing this information, the calendar court judge stated: "We'll be ready for trial as soon as Mr. Feldman graces us with his presence." Cl.Ct. N.T., 4/23/97, at 2.

At approximately 2:00 p.m., Mr. Feldman arrived at court and was given twenty-four pages of discoverable material. Mr. Feldman was not employed by Mr. Hoy or his firm, was not professionally associated with Mr. Hoy and was entirely unfamiliar with Appellant's case.⁵ Upon Mr. Feldman's entry into the courtroom, the following discussion took place:

MR. FELDMAN: ... Good afternoon, Your Honor.

THE COURT: Are you prepared to go?

MR. FELDMAN: To be honest with you, Your Honor, no, I'm not prepared to go. I just received this discovery about an hour ago. I do not know anything about this case beyond what I have found out within this hour. Mr. Hoy is the one who had been handling this case and was going to enter an appearance. He, I understand, is attached in trial in Philadelphia and can not make it. I came here basically on an emergency basis to request a continuance because, A, we just got the notes of testimony Friday. I don't have them myself. I've never seen them. I've just received this discovery and I really can not at this point make an adequate defense on Mr. McAleer's behalf. I don't think I can represent him properly today....

THE COURT: Continuance is denied. Are you ready for trial?

MR. FELDMAN: Your Honor, I can not properly defend this man.

THE COURT: Are you ready for trial?

MR. FELDMAN: I can not—

THE COURT: This case was listed on Monday. We carried it from Monday to Tuesday, Tuesday to Wednesday, and Wednesday we carried it from 9 o'clock in the morning until 2 o'clock in the afternoon. This case began in November of 1996, at which time charges were lodged against your client. That's more than adequate time to prepare for trial.

MR. FELDMAN: If I could just respond to that. I know you probably have your mind made up, Your Honor, but if I could just respond to that, please. From what I understand, Mr. McAleer was told—he basically came out of work; from what he understood, there was a continuance. Mr. Hoy's office had assumed or had gotten a continuance, I'm not sure. I'm not from Mr. Hoy's office. But Mr. McAleer kept coming here. There seemed to be a lot of confusion about this case, from what I was told.

THE COURT: There was never any confusion about this case, never any continuance.

MR. FELDMAN: Could I bring Mr. McAleer up here to explain what the circumstances are?

THE COURT: There [i]s going to be no continuance. We've waited two days to try this case. The witnesses are here and they are prepared. Are you ready for trial?

MR. FELDMAN: I don't have a choice, Your Honor.

THE COURT: The case is assigned to courtroom number 3 for trial.

Cldr. Ct. N.T., 4/23/97, at 3-5. Within minutes of this discussion, a bench trial commenced. Before the trial judge, Mr. Feldman again attempted to secure a continuance. The trial judge, however, explained that he had no power to reverse the calendar court, stating that, "I'm stuck with it and so are you." Tr. Ct. N.T., 4/23/97, at 3.

On that same day, the trial court found Appellant guilty of simple assault, false imprisonment, terroristic threats and theft by unlawful taking. Appellant's judgment of sentence was imposed on June 16, 1997. The trial court denied Appellant's post trial motions and on appeal, the Superior Court affirmed Appellant's judgment of sentence. We granted allocatur to determine whether the calendar court judge abused his discretion in refusing to grant Mr. Feldman's request for a continuance.

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. Ross, 465 Pa. 421, 422 n. 2, 350 A.2d 836, 837 n. 2 (1976). As we have consistently stated, an abuse of discretion is not merely an error of judgment. Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934). 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. Chambers, 546 Pa. 370, 387, 685 A.2d 96, 104 (1996) (quoting Mielcuszny, 317 Pa. at 93-94, 176 A. at 236).

Rule 301 of the Pennsylvania Rules of Criminal Procedure, which governs the granting of continuances, provides in pertinent part:

(a) The court may, in the interests of justice, grant a continuance, of its own motion, or on the motion of either party....

(b) A motion for continuance on behalf of the defendant shall be made not later than forty-eight hours before the time set for the trial. A later motion shall be entertained only when the opportunity therefor did not previously exist, or the defendant was not aware of the grounds for the motion, or the interests of justice require it.

Pa. R.Crim. P. 301. Here, the parties do not dispute that Mr. Feldman's April 23, 1997 request for a continuance was not made forty-eight hours before the time set for trial. The specific inquiry before us, then, is whether the calendar judge abused his discretion in finding that the interests of justice did not warrant granting Mr. Feldman's request for a continuance.⁶

Appellant argues that by denying his request for a continuance, the calendar court judge deprived him of the right to private counsel of his own choice, and thus failed to advance the interests of justice. We agree.

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.⁷ 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." Commonwealth v. Novak, 395 Pa. 199, 213, 150 A.2d 102, 109, cert. denied, 361 U.S. 882, 80 S.Ct. 152, 4 L.Ed.2d 118 (1959). 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." Moore v. Jamieson, 451 Pa. 299, 307-08, 306 A.2d 283, 288 (1973).

We have held, however, that the constitutional right to counsel of one's own choice is not absolute. Commonwealth v. Robinson, 468 Pa. 575, 592-93 & n. 13, 364 A.2d 665, 674 & n. 13 (1976). Rather, "the right of the accused to choose his own counsel, as well as the lawyer's right to choose his clients, must be weighed against and may be reasonably restricted by the state's interest in the swift and efficient administration of criminal justice." Id. at 592, 364 A.2d at 674 (internal quotations omitted). 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. Baines, 480 Pa. 26, 30, 389 A.2d 68, 70 (1978). At the same time, however, we have explained that "`a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.'" Robinson, 468 Pa. at 593-94, 364 A.2d at 675 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)).

In Robinson, the defendant's chosen counsel failed to contact the defendant after representing him at a preliminary hearing. Concerned that defendant's counsel had not yet entered his appearance more than three months after the preliminary hearing, the trial court suggested that the defendant interview with the public defender's office. After the defendant refused to cooperate with the public defender, the court appointed an experienced trial lawyer to defendant's case, but stated that it would allow defendant's chosen counsel to try the case should he be prepared and available to do so. On the day that trial was scheduled to begin, approximately three months later, defendant's chosen counsel sent a letter to the trial court...