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J. A18026/03
2003 PA Super 423
COMMONWEALTH OF PENNSYLVANIA
: IN THE SUPERIOR COURT OF
Appellee
:
PENNSYLVANIA

:

v.

:

:
ANTHONY PANTANO,
:
Appellant
:
No.
1664
MDA
2002

Appeal from the Judgment of Sentence of
August 12, 2002 in the Court of Common Pleas of
Luzerne County, Criminal No. 1911 of 2001

BEFORE: STEVENS, LALLY-GREEN and KLEIN, JJ.

OPINION BY LALLY-GREEN, J.:

Filed: November 12, 2003

¶ 1 Appellant, Anthony Pantano, was convicted by a jury of selling two
bags of marijuana and sentenced to nine months to two years less a day in
prison. Appellant argues that the trial court abused its discretion when it
denied his motion for continuance and tried him in absentia. We agree, and
therefore, reverse.
¶ 2 The record reflects the following. Appellant was scheduled to appear
for trial on charges of selling marijuana. The week prior to Appellant's
original scheduled trial date, the Commonwealth had asked the trial court for
a continuance because the officers were out at training. The trial court
granted that request.
¶ 3 Appellant did not, however, appear on the new date scheduled for his
case. Appellant's counsel, Mark W. Bufalino, requested a continuance. Mr.
Bufalino related to the court that he had received a message on his
answering machine that there had been a death in Appellant's family and

J. A18026/03

that Appellant would not be in court, although Appellant had made several
efforts to reach his attorney over the weekend. The Assistant District
Attorney, Mr. Galante then said, "I have no objection, Your Honor. . . .
Based on what happened last week [the granting of the Commonwealth
continuance], I feel in fairness to the defense that he did not object to my
continuance." The trial court, however, denied the request and tried
Appellant in absentia. This appeal followed.
¶ 4 First, Appellant argues that the court abused its discretion by failing to
grant the continuance. Continuances are governed by Pa.R.Crim.P. 106,
which states:
(A) The court or issuing authority may, in the
interests of justice, grant a continuance, on its own
motion, or on the motion of either party.

(B) When the matter is before an issuing authority,
the issuing authority shall record on the transcript
the identity of the moving party and the reasons for
granting or denying the continuance. When the
matter is in the court of common pleas, the judge
shall on the record identify the moving party and
state of record the reasons for granting or denying
the continuance.

(C) A motion for continuance on behalf of the
defendant shall be made not later than 48 hours
before the time set for the trial. A later motion shall
be entertained only when the opportunity therefore
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. 106.

2

J. A18026/03

¶ 5
A defendant has the absolute right to be present at all stages of the
criminal proceedings against him. Pa.R.Crim.P. 602(a); Commonwealth v.
Sullens, 619 A.2d 1349, 1351 (Pa. 1992). The trial court has the discretion
to grant or deny a request for a continuance. See, Pa.R.Crim.P. 106(C).
Such grant or denial will be reversed only on a showing of an abuse of
discretion. Commonwealth v. Ross, 350 A.2d 836, 837 n.2 (Pa. 1976).
"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. McAleer, 748 A.2d 670, 673 (Pa. 2000).
¶ 6 Where a trial court denies a request for continuance, discretion is
abused where the defendant's right outweighs the Commonwealth's need for
efficient administration. Id. at 675. In McAleer, retained counsel was
attached to another trial and was replaced by a lawyer who had not been
employed by, or associated with, retained counsel, and who was unfamiliar
with the case and unprepared to present a defense. The Court reasoned
that the defendant's right to effective assistance of counsel at trial
outweighed the need of the court to run efficiently. Id. at 675.
¶ 7 Trials in absentia have been upheld where the defendant fails to
appear for trial without explanation or absents himself in order to avoid the
jurisdiction of the trial court. See, Sullens, 619 A.2d at 1353 (trial in
absentia proper where the defendant absconded from justice after being

3

J. A18026/03

given permission to attend a family funeral); Commonwealth v. Perez,
757 A.2d 955 (Pa. Super. 2000) (trial in absentia proper where the
defendant failed to appear for pre-trial hearing and trial, defendant had been
arrested on a bench warrant on second day of trial, and trial court continued
the trial after the defendant's first failure to appear); Commonwealth v.
Hill, 737 A.2d 255 (Pa. Super. 1999) (trial in absentia proper where the
defendant failed to appear for trial and trial had been continued twice in
order to locate the defendant); Commonwealth v. Johnson, 734 A.2d 684
(Pa. Super. 1999) (trial in absentia proper where the defendant removed
electronic monitoring device and failed to appear for trial despite signing
subpoena); Commonwealth v. King, 695 A.2d 412 (Pa. Super. 1997) (trial
in absentia proper where the defendant failed to appear for trial four times);
Commonwealth v. Bond, 693 A.2d 220 (Pa. Super. 1997) (trial in absentia
proper where the defendant appeared in the courtroom prior to the
commencement of his trial but then left the courtroom without explanation
and could not be located).
¶ 8 There is no question that a trial court has both the authority, as well
as the need, to run efficiently. Nevertheless, the record in this case reflects
that Appellant's right to be present at his trial outweighed the trial court's
need for efficient administration. The relevant circumstances that are
reflected in this record and which are to be weighed include the following.
First, the Commonwealth said that it did not object to the grant of a

4

J. A18026/03

continuance. Second, the reason for the requested continuance derived
from a message left on the attorney's answering machine about a death in
Appellant's family. Third, there had been no prior continuances granted to
Appellant, so Appellant had not previously sought to delay the trial.
¶ 9 Finally, the record reflects a lack of a compelling reason to hold the
trial in Appellant's absence with due regard to the inherent prejudice arising
from trials in absentia.1 In the instant case, our review of the record reflects
that Appellant's behavior did not rise to the level where trial in absentia is
proper. First, Appellant did not flee the jurisdiction of the trial court. Also,
this was Appellant's first request for a continuance. Thus, the case is not
analogous to ones where trials in absentia were held following numerous
continuances to locate the defendants. Finally, Appellant did not absent
himself without explanation, but rather presented the trial court with his
request for a continuance through his counsel. Under the circumstances in
this case, trial in absentia was not the appropriate remedy. Simply put, the
interests of justice were not served by the denial of a continuance.
¶ 10 Of course, a trial court is not required to grant a continuance to one
party merely because it had granted a continuance to the opposition.
However, our review of the record leads us to conclude that, on the facts of

1 In this regard, it is noted that other remedies were available to the trial court before
resort to the drastic remedy of a trial in absentia. For example, a bench warrant could have
issued to secure Appellant's appearance.

5

J. A18026/03

the case before us, the learned trial court abused its discretion when it
refused to grant the continuance.
¶ 11 In view of this disposition, it is not necessary to reach the second
issue: namely, whether the court should have granted a mistrial when a
detective allegedly vouched for the truthfulness of an informant. This
alleged error is unlikely to arise again. If it does, the trial court may deal
with it at that time.
¶ 12 Judgment of sentence reversed. Remanded for further proceedings.
Jurisdiction relinquished.
¶ 13 Stevens, J.: files Dissenting Opinion.

6

J-A18026-03

COMMONWEALTH OF PENNSYLVANIA,
:
IN THE SUPERIOR COURT OF

:

PENNSYLVANIA

Appellee

:

:

v.

:

:
ANTHONY
PANTANO,
:

:
Appellant
: No.
1664
MDA
2002

Appeal from the Judgment of Sentence August 12, 2002
In the Court of Common Pleas of Luzerne County
Criminal at No. 1911 of 2001

BEFORE: STEVENS, LALLY-GREEN, and KLEIN, JJ.

DISSENTING OPINION BY STEVENS, J.:

¶
1 I respectfully dissent from the Majority's decision to reverse
Appellant's judgment of sentence and remand for further proceedings.
¶ 2 Our distinguished trial judges see and hear from defendants first-hand
and are in a much better position than we, appellate court judges, to know
when a defendant is manipulating the court system. Such is the case here.
¶ 3 In this case, the Majority gives more weight to the actions of the
defendant than to the discretion of the learned trial judge, although there is
nothing in the record to indicate that the trial judge abused his discretion.
The Majority, by permitting a defendant to avoid a trial date without directly
contacting his own attorney and the court to request a continuance,
undermines the right of the trial judge to sanction those who manipulate our
courts.

J-A18026-03
¶ 4 Continuances are governed by the Pennsylvania Rules of Criminal
Procedure as follows:
Rule 106. Continuances in Summary and Court Cases

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

(C) A motion for continuance on behalf of the defendant
shall be made not later than 48 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. 106. Here, it is undisputed that Appellant's counsel did not
request a continuance until the morning of trial. Although the rule allows
the trial court to entertain a later motion when the grounds for it did not
previously exist, the decision to entertain such a motion is clearly placed
within the discretion of the trial court. Pa.R.Crim.P. 106(c).
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).

Commonwealth v. McAleer, 561 Pa. 129, 136, 748 A.2d 670, 673 (2000).

- 8 -

J-A18026-03
¶ 5 In this case, Appellant's counsel explained to Judge Olszewski that a
female claiming to be Appellant's girlfriend left a message on counsel's
answering machine that there had been a death in Appellant's family and
that Appellant would not be appearing for trial. N.T. 6/17/02 at 4.2 As the
Majority acknowledges, it is undisputed that Appellant voluntarily absented
himself from court. Because I would find that Appellant has failed to show
that "the law [was] overridden or misapplied, or the judgment exercised
[was] manifestly unreasonable, or the result of partiality, prejudice, bias, or
ill-will, as shown by the evidence or the record," I would conclude that Judge
Olszewski committed no abuse of discretion in refusing to delay the trial.
McAleer, supra.
¶ 6 I would also specifically conclude it was not error for the trial judge to
deny a mistrial on the claim that a witness for the prosecution improperly
vouched for the truthfulness of another prosecution witness.
¶ 7 For the foregoing reasons, I would affirm the judgment of sentence.

2 Although in his brief to this Court Appellant asserts that he "notified his
undersigned counsel that he had a death in the family and that he was
traveling out of town to the funeral and would not be present on June 17,
2002 for the trial," the transcript makes it clear that Appellant had not
spoken to his counsel personally, nor had he personally left a message for
counsel. Appellant's brief at 4, N.T. 6/17/02 at 4. Additionally, the message
that counsel did receive does not appear to have made any mention that
Appellant had to travel out of town for the funeral. Id.

- 9 -