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Commonwealth v. Broitman

Superior Court of Pennsylvania

August 19, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
SETH BROITMAN Appellant

          Appeal 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.

          OPINION

          DUBOW, J.

         Appellant, 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.[1] After careful review, we affirm.

         A 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.

         Attorney 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.

         The 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.

         The 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.

         On May 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.

         Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

         Appellant 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 3.

         Appellant 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.[2]

         The 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).

         Both 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 ...


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