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.
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. After careful review, we affirm.
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 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.
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.
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.
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 Appellant not guilty of the most serious
charge of Terroristic Threats, and convicted him of Simple
Assault and Harassment.
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.
timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
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
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.
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).
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 ...