Argued September 9, 2014
Appeal From: the order of Superior Court at No. 1135 EDA 2012 dated April 10, 2013, reconsideration denied June 12, 2013, reversing and remanding the Delaware County Court of Common Pleas, Criminal Division, judgment of sentence at No. 23-CR-0000811-2009 dated October 25, 2011. Appeal allowed February 20, 2014 at 496 MAL 2013. Trial Court Judge: Michael F. X. Coll, Judge. Intermediate Court Judges: Anne E. Lazarus, Paula Francisco Ott, Gene Strassburger, JJ.
For Commonwealth of Pennsylvania, APPELLANT: John Francis X. Reilly, Esq., Delaware County District Attorney's Office; John Joseph Whelan, Esq., Delaware County District Attorney's Office
For Willie Lee Brooks, APPELLEE: Richard S. Packel, Esq.
BEFORE: MR. CHIEF JUSTICE CASTILLE. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Former Justice McCaffery did not participate in the decision of this case. Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.
MR. CASTILLE, CHIEF
This is an appeal by the Commonwealth of Pennsylvania from the order of the Superior Court which reversed the judgment of sentence imposed on appellee Willie Lee Brooks and remanded for a new trial on grounds that the trial judge erred in denying a continuance request made by appellee, on the day scheduled for jury selection, on the ground that he wanted to represent himself pro se. The case involves the intersection of principles involving the right to self-representation and the discretionary authority of the trial court in managing trial schedules. Because we find that the trial court did not abuse its discretion in the circumstances which we further examine below, we vacate the Superior Court's order and remand for that court to consider appellee's remaining appellate issues.
On December 6, 2006, officers from the Radnor Township Police Department responded to a report of a suspicious person in the rear yard of a private residence. When the officers arrived, an unknown individual discharged a weapon in their direction and fled the scene. The shooter remained at large until July 13, 2007, when appellee was arrested for another offense. During their investigation of the other offense, the police found evidence that linked appellee to the 2006 Radnor shooting and, on January 30, 2009, appellee was charged with crimes related to that shooting. After a preliminary hearing in the Delaware County Court of Common Pleas, appellee was bound over for trial, and counsel was appointed to represent him. The pre-trial conference was repeatedly continued, and a scheduled July 18, 2011 trial date (nearly two and one-half years following the lodging of charges) was continued to August 15, 2011. On August 16, 2011, the day jury selection was to begin, appellee asked for leave to represent himself, and for a continuance in order to prepare his defense. After a colloquy, the trial judge, the Honorable Michael F. X. Coll, concluded that the request was a delaying tactic, and denied a continuance. Given the denial, appellee acceded to being represented by appointed counsel, a jury was selected, and the case proceeded to trial as scheduled. On August 19, 2011, the jury found appellee guilty of various counts of criminal
attempt to commit homicide, possession of firearm prohibited, possession of an instrument of crime, and loitering and prowling at night. Appellee was sentenced on October 25, 2011; a post-sentence motion was filed and denied. Appellee then filed a notice of appeal to the Superior Court.
In its Rule 1925(a) opinion, the trial court explained that it properly denied a continuance because appellee's " stated desire to represent himself was a mere ploy for a delay of the trial." Tr. Ct. Opinion at 6. The court noted that appellee's trial counsel " had a year to prepare for trial, during which time he gathered quite a bit of evidence," and counsel had declared himself to be " extraordinarily well-prepared." Id. at 7, citing N.T. 8/16/11, 5, 8. The court further stated that the " dockets indicate that the pre-trial conference was continued six times and trial was continued from July 18, 2011 to August 15, 2011." The court also deemed it significant that: " Once [appellee] learned that this Court would not continue the matter again, he withdrew his request to represent himself. It is clear to this Court that [appellee's] request was a mere gambit for a delay of the trial." Id.
The Superior Court reversed in a published panel opinion authored by Judge Lazarus, and joined by Judges Ott and Strassburger. Commonwealth v. Brooks, 2013 PA Super 76, 66 A.3d 352 (Pa. Super. 2013). The panel ruled that the trial court erred in denying appellee's request for a continuance in order to represent himself. The panel reasoned that appellee's request was made before jury selection, and was therefore timely. The panel further explained its view that consideration of intent in making a continuance request was " critical, and the trial court must determine if the motion to proceed pro se with a continuance is a reasonable attempt to delay the proceedings for the legitimate purpose of preparing a defense, or if it is intended to obstruct the process of justice and frustrate the operation of the court." 66 A.3d at 356. The panel determined that there was little support in the record for the trial court's determination that appellee's request was a " mere ploy" to delay his trial:
While we must give deference to the trial court, we can find little support in the record for the contention that Brooks was engaged in an improper attempt to delay his trial. Of the six continuance motions, three suggested that Brooks was not even in the courtroom, as in the place of Brooks' signature is written " ATTY WILL NOTIFY DEF." Much of the documentation regarding these motions is incomplete, and thus it is difficult for this Court to discern from the original record the reasons for each continuance. There is, however, evidence on the record that the proceedings were delayed by waiting for federal authorities to forward relevant records. . . . On the first day of trial, Brooks' counsel told the court that four days earlier he had received " 140 pages of transcripts from Federal Court which [Brooks] had not had a chance to read." This also supports a finding that there was delay in obtaining documentation regarding the related federal prosecution of Brooks. None of this suggests Brooks was engaged in an improper attempt to delay or frustrate the proceedings.
Id. at 358 (record citations omitted).
The panel then held that " [w]here the court finds that the defendant is engaging
in improper delay, the court must place sufficient evidence on the record to support this conclusion." Id. at 359. After concluding that the trial court here abused its discretion when it failed to place such evidence on the record, the panel further held that " absent a compelling reason supported by the record," the denial of appellee's continuance request violated his Sixth Amendment right to represent himself under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The panel thus reversed the judgment of sentence and remanded for a new trial. Id.
The Commonwealth filed a petition for allowance of appeal, which this Court granted to consider the following issue: " Where the trial court concludes a continuance request was made solely for purpose of delay, must the court support its decision by placing evidence on the record or articulating 'compelling reasons'?" Commonwealth v. Brooks, 86 A.3d 830, 831 (Pa. 2014).
Appellate review of a trial court's continuance decision is deferential. " 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. As we have consistently stated, 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. . . .'"
Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (Pa. 2005) (quoting Commonwealth v. McAleer, 561 Pa. 129, 748 A.2d 670, 673 (Pa. 2000) (internal citations omitted)). In contrast, our review of the Superior Court's determination that the trial court abused its discretion here is not deferential, for we are identically situated to the Superior Court when reviewing the exercise of the trial court's discretion.
The Commonwealth argues that the Superior Court erred because the party requesting the continuance (here, appellee) has the burden to justify the request, and the trial court has no burden. According to the Commonwealth, appellee had a year to prepare for trial and his last-minute request for continuance was untimely, insincere, and pursued only for purposes of delay. The Commonwealth posits that appellee asserted his right to represent himself only as a bargaining device for a continuance. The Commonwealth contends that the published Superior Court decision here devised a new standard that: 1) creates a presumption that a last-minute request to proceed pro se should be granted; 2) requires the trial court to demonstrate a " compelling reason" for denying such continuance; and 3) assigns to the trial court the burden of placing " sufficient evidence" on the record to support its conclusion that the defendant is engaging in improper delay. The Commonwealth acknowledges the right of a defendant to represent himself at trial as recognized in Faretta, but notes that the invocation of the right to self-representation must be timely and unequivocal, and further stresses that, unlike appellee, the defendant in Faretta made his request to represent himself " weeks before trial." See 422 U.S. at 835.
The Commonwealth further stresses that the trial court has the discretion to grant or deny a continuance; in exercising that discretion, the court must weigh the defendant's right to self-representation against the governmental interest in the efficient administration of justice. See Randolph, 873 A.2d at 1281-82. See also Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (Circuit Court of Appeals granted federal habeas
corpus relief to state court prisoner on ground that state trial court's denial of continuance to defendant six days before trial in order to substitute newly appointed counsel violated right to counsel; in reversing, Supreme Court observes: " broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." ). The Commonwealth argues that here, where appellee requested a continuance on the morning of trial, the court's denial of that request was well within its discretion, and the Superior Court's reversal erroneously established a new " presumption in favor of last-minute continuance requests to proceed pro se." Commonwealth's Brief at 17. The Commonwealth further stresses that the Superior Court's new standard is not rooted in this Court's rules or precedents, but rather is bottomed upon an outdated, non-binding decision from the U.S. Court of Appeals for the Ninth Circuit. See Armant v. Marquez, 772 F.2d 552 (9th Cir. 1985) (in certain circumstances denial of continuance renders right to self-representation meaningless). The Commonwealth adds that Armant does not even control in the Ninth Circuit any longer. See, e.g., Kincaid v. Runnels, 450 F.Appx. 649, 650-51 (9th Cir. 2011) (no violation of Sixth Amendment right to self-representation where trial court denied request for continuance made six days before jury selection); U.S. v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999) (finding no abuse of discretion and affirming trial court's denial of day-of-trial continuance request).
The Commonwealth also argues that the Superior Court mistakenly determined that the denial of a continuance interfered with appellee's right to proceed pro se. Indeed, the Commonwealth claims, appellee's request to represent himself was equivocal: it was employed as a bargaining tool, and notably, when the court denied the continuance, appellee abandoned his attempt to represent himself. Commonwealth's Brief at 19-20 (citing Commonwealth v. Davido, 582 Pa. 52, 868 A.2d 431, 439-40 (Pa. 2005) for proposition that defendant's request to represent himself is deemed equivocal where request was tied to request for new counsel, and where, when continuance was denied, defendant clearly stated he did not wish to proceed pro se ). Along these lines, the Commonwealth adds, appellee's asserted need to review his own statements reflected in the transcript of the sentencing allocution in a related federal criminal matter did not present a compelling reason for a continuance, and the trial court correctly recognized appellee's request as the " gambit for delay" that it was. Commonwealth's Brief at 21, citing Tr. Ct. Opinion at 7. And, adverting to the standard for assessing discretionary decisions, the Commonwealth argues that it is clear that the trial court's ruling was not motivated by prejudice, bias or any other improper factor that would call into question its discretionary judgment. Id. at 22-23 & n.1 (citing, inter alia,
Commonwealth v. Sandusky, 2013 PA Super 264, 77 A.3d 663, 672 (Pa. Super. ...