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March 6, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Schreffler, J.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 286 MDA 2025
• Precedential Status: Non-Precedential
• Panel: John T. Bender, Victor P. Stabile

• Judges: Stabile; Bender

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (591)

• PDF

Lead Opinion

                        by [Victor P. Stabile](https://www.courtlistener.com/person/8247/victor-p-stabile/)

J-S34041-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN MICHAEL SCHREFFLER : No. 286 MDA 2025

Appeal from the Suppression Order Entered January 29, 2025
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0003890-2024

BEFORE: STABILE, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY STABILE, J.: FILED: MARCH 6, 2026

The Commonwealth challenges the trial court’s order denying its motion

for a continuance and granting the motion to suppress filed by Appellee,

Jonathan Michael Schreffler, due to the Commonwealth’s failure to secure the

presence of an essential witness. The Commonwealth has certified in its

timely notice of appeal that the order will terminate or substantially handicap

the prosecution pursuant to Pa.R.A.P. 311. Upon review, we reverse and

remand for further proceedings.

On June 29, 2024, Appellee was arrested, and later charged with,

driving under the influence (DUI) – general impairment and driving at an

unsafe speed.1 Following a preliminary hearing, the charges were bound over

the court of common pleas. After filing a continuance request prior to the

---

1 75 Pa.C.S.A. § 3802(a)(1) and 75 Pa.C.S.A. § 3361, respectively.
J-S34041-25

initial plea hearing, Appellee filed a motion to suppress evidence on November

22, 2024. Contemporaneous with the motion, Appellee also filed another

continuance request, noting that the suppression motion should be decided

prior to the scheduled trial date of December 4, 2024. The trial court granted

the continuance, and scheduled both the suppression and plea hearings for

January 29, 2025.

At the January 29th hearing, the Commonwealth informed the court that

the affiant, Officer Douglas Klinefelter of the Newberry Township Police

Department, was not present. N.T. Suppression Hearing, 1/29/25, at 1. The

Commonwealth noted that it sent Officer Klinefelter a subpoena to appear for

the hearing on January 9, 2025. Id. at 4. After failing to appear for the

hearing, the Commonwealth called the officer and spoke with him on the

phone. Id. at 1. Officer Klinefelter informed the Commonwealth that he had

the wrong date for the hearing on his calendar. Id. at 2. When asked if he

could still attend, albeit late, Officer Klinefelter said that he had the flu and

had just left work to start a sick day. Id. As Officer Klinefelter had a fever,

the Commonwealth told him not to come to court. Id. The Commonwealth

then asked for a continuance of the suppression hearing. Id.

After discussion, the trial court denied the continuance request. The

trial court also found that the Commonwealth was unable to meet its burden

of establishing that the evidence was not obtained in violation of Appellee’s

rights. See id. at 4. Accordingly, the trial court granted the motion to

suppress, and set a new date for Appellee’s trial. Id. The Commonwealth

-2-
J-S34041-25

filed a timely notice of appeal on February 28, 2024. Both the Commonwealth

and the trial court have complied with Pa.R.A.P. 1925.

On appeal, the Commonwealth presents the following issues for our

review:2

I. The trial court abused its discretion in denying the
Commonwealth’s motion for a continuance where its
essential witness was unexpectedly unavailable.

II. The trial court erred in granting [Appellee’s] motion to
suppress as a direct consequence of improperly denying the
Commonwealth’s continuance request.

Commonwealth’s Brief, at 9, 17 (unnecessary capitalization omitted).

We review the grant or denial of a request for a continuance for abuse

of discretion:

[A]n abuse of discretion is not merely an error of judgment.
Rather, discretion is abused when the law is overridden or
misapplied, 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. Brooks, 104 A.3d 466, 469 (Pa. 2014) (citation omitted).

The granting of continuances in criminal cases is governed by

Pa.R.Crim.P. 106, which reads, in pertinent part:

---

2 We note that the Commonwealth’s brief fails to include, as required by Rule

of Appellate Procedure 2111(a)(4), a separate section setting forth a
Statement of the Questions Involved. The brief likewise fails to include the
documents required by Rule 2111(a)(10) (trial court opinion) and Rule
2111(a)(11) (statement of errors complained of on appeal). We caution
counsel to be more careful in future appeals to adhere to the Rules of Appellate
Procedure. However, as these discrepancies do not hamper our appellate
review in this case, we take no action with respect to these errors in the brief.

-3-
J-S34041-25

(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.

---

(D) A motion for continuance on behalf of the defendant shall
be made not later than 48 hours before the time set for the
proceeding. 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(A), (D). While subsection 106(D) refers to a “motion for

continuance on behalf of the defendant,” this Court has applied the language

to motions by the Commonwealth as well. See, e.g., Commonwealth v.

Micelli, 573 A.2d 606 (Pa. Super. 1990). We are further guided by the

following:

This Court has observed that trial judges necessarily require a
great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and jurors
at the same place at the same time, and this burden counsels
against continuances except for compelling reasons. However,
the trial court exceeds the bounds of its discretion when it denies
a continuance on the basis of an unreasonable and arbitrary
insistence upon expeditiousness in the face of a justifiable request
for delay. Accordingly, we must examine the reasons presented
to the trial court for requesting the continuance, as well as the
trial court’s reasons for denying the request.

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016) (citations

and quotation marks omitted).

Instantly, the Commonwealth argues that the trial court abused its

discretion in failing to grant its motion for continuance. See Commonwealth’s

Brief, at 9-11. The Commonwealth directs our attention, inter alia, to Micelli.

-4-
J-S34041-25

In that case, the defendant was charged with DUI and possession of drug

paraphernalia. Micelli, 573 A.2d at 607. A trial was scheduled for June 28,

1. Id. On May 12, 1989, the Commonwealth sent a subpoena to Officer

Manning, the main witness in the case. Id.

Four days later, on May 16, 1989, Officer Manning was ordered to report

for a two-week period of reserve duty in the Pennsylvania National Guard,

which overlapped with the trial date. Id. The Commonwealth received notice

of Officer Manning’s unavailability for trial on June 15, 1989. Id. On June 19,

1989, the Commonwealth requested a continuance on the basis that an

essential witness would be unavailable. Id. Following a hearing, the trial

court denied the continuance, noting that the officer knew of his orders

months previously, but the Commonwealth failed to act diligently in ensuring

the officer’s availability for trial. Id. The trial court dismissed the charges,

and the Commonwealth appealed to this Court. Id.

On appeal, a panel of this Court observed that several factors should be

taken into consideration when determining whether to grant a continuance

based on the absence of a witness:

(1) the necessity of the witness to strengthen the [requesting
party’s] case; (2) the essentiality of the witness to the [party’s
case]; (3) the diligence exercised to procure his [or her] presence
at trial; (4) the facts to which he [or she] could testify; and (5)
the likelihood that he [or she] could be produced at the next term
of court.

Id. (quoting Commonwealth v. Scott, 365 A.2d 140, 143 (Pa. 1976)).

-5-
J-S34041-25

Applying these factors, this Court in Micelli concluded that the trial

court abused its discretion. We emphasized that the presence of the officer

was necessary to the Commonwealth’s case, that the Commonwealth would

have “no problem” securing the officer’s presence at a later trial date, and

that the Commonwealth acted with due diligence in ensuring the presence of

the officer. Id. at 608. Specifically, we noted:

Officer Manning was given notice on May 12th of the trial date but
did not receive his orders for reserve duty until May 16th. He did
not notify the district attorney’s office of the conflict in his
schedule until June 15, 1989[,] which was a Thursday. The
following Monday the Commonwealth petitioned for a
continuance. We find the Commonwealth acted diligently and
cannot be expected to continually verify the trial date with
all of its witnesses.

Id. (emphasis added).

In its Rule 1925(a) opinion, the trial court explained its reasoning for

denying the Commonwealth’s continuance request:

[D]uring the pendency of this case, [Appellee] made two timely
continuance requests that provided the [trial court] with a surfeit
time to consider the requests without wasting precious time in our
bloated and overflowing schedule. The Commonwealth, by
contrast, despite the January 29, 2025[,] suppression hearing
having been scheduled on November 25, 2024, waited until
January 9, 2025[,] to subpoena the officer. Setting aside the
clearly lax attitude that the Commonwealth had towards securing
a necessary witness, the Commonwealth attorney made clear that
no one from the District Attorney’s office had been in contact with
Officer Klinefelter prior to and about the January 29, 2025[,]
hearing. The assistant district attorney informed the [trial court]
that he called Officer Klinefelter after the officer failed to appear.

It was surprising that the Commonwealth had not prepared or
even touched bases with an indispensable witness prior to a
suppression hearing that would turn upon that witness’ testimony.

-6-
J-S34041-25

The Commonwealth did not perform their due diligence in securing
their necessary witness. Moreover, [Appellee] incurred costs in
taking off from work while simultaneously paying for defense
counsel to prepare and appear for the hearing.

To the extent that the Commonwealth might seek to bolster its
having issued a subpoena by noting that it reached out to Officer
Klinefelter via phone call and ascertained that the officer might
have been ill, we would note the temporal deficiency of such an
assertion. Any actions taken by the Commonwealth after the
officer had failed to appear should not be factored into any due
diligence calculus. Had the Commonwealth done their due
diligence and reached out to the officer before the hearing then
the officer would have been aware of the hearing and he likely
would have been able to apprise the Commonwealth of his illness
much sooner than after the hearing was scheduled to occur. Had
this orderly progression, based upon due diligence, occurred then
the [trial court] could have, on an emergency basis, excused the
officer as unavailable and quite possibly limited the extra costs
borne by [Appellee].

Trial Court Opinion, 4/25/25, at 7-8 (emphasis in the original).

We disagree with the rationale of the trial court, and find Micelli

controls. First, the trial court failed to acknowledge that Rule 106 allows for

late requests for a continuance to be granted when “the opportunity therefor

did not previously exist, or the [Commonwealth] was not aware of the grounds

for the motion, or the interests of justice request it.” Pa.R.Crim.P. 106(D).

The Commonwealth “was not aware of the grounds for the motion,” i.e. that

Officer Klinefelter had the wrong date in his calendar and was sick, until the

date of the hearing, and “the interests of justice” indicate that a continuance

should have been granted.

Second, the trial court faults the Commonwealth for something that they

could have done. The Commonwealth sent Officer Klinefelter a subpoena on

-7-
J-S34041-25

January 9, 2025 – 20 days before the scheduled hearing. We cannot locate

any authority requiring the Commonwealth to prepare or “touch base” with a

witness after a subpoena was lawfully sent. Nor has Appellee or the trial court

provided us with any. Moreover, the Commonwealth “cannot be expected to

continually verify the trial date” with its witness. Micelli, 573 A.2d at 608.

The Commonwealth sent Officer Klinefelter a subpoena to attend the hearing.

The mistake came from a clerical error. There was no evidence of negligent

behavior on behalf of the Commonwealth. The fact that the Commonwealth

could have done something and fortuitously learned that the officer had the

wrong date in his calendar does not amount to negligence or malfeasance on

the part of the Commonwealth. Even if the Commonwealth contacted the

officer prior to the hearing and ensured that he had the correct date, the fact

remains that Officer Klinefelter was sick the day of the hearing, and that would

have been grounds for a continuance.

Lastly, applying the Micelli factors to the instant case supports the

conclusion that a continuance should have been granted. As the affiant,

Officer Klinefelter was essential to the Commonwealth’s case, his testimony

was necessary to the prosecution, and the Commonwealth would likely be able

to produce him at the next available trial date. The Commonwealth sent the

officer a subpoena with the correct date of the suppression hearing.

Therefore, we conclude that the Commonwealth exercised diligence in

ensuring the officer’s presence.

-8-
J-S34041-25

Accordingly, we conclude that the trial court abused its discretion in

refusing to grant the Commonwealth’s continuance request, and we remand

so that a new suppression hearing may be scheduled.

Order reversed. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judge Sullivan joins the memorandum.

President Judge Emeritus Bender files a dissenting memorandum.

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 03/06/2026

-9-

Dissent

                        by [John T. Bender](https://www.courtlistener.com/person/8224/john-t-bender/)

J-S34041-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN MICHAEL SCHREFFLER : No. 286 MDA 2025

Appeal from the Suppression Order Entered January 29, 2025
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0003890-2024

BEFORE: STABILE, J., SULLIVAN, J., and BENDER, P.J.E.

DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 6, 2026

The Majority concludes that the trial court abused its discretion when it

denied the Commonwealth’s motion for a continuance and granted the motion

to suppress filed by Appellee, Jonathan Michael Schreffler. For the reasons

that follow, I respectfully dissent.

This action arose when Appellee was charged with driving under the

influence (DUI) – general impairment (75 Pa.C.S. § 3802(a)(1)), and driving

at an unsafe speed (75 Pa.C.S. § 3361). Charges were filed on August 27,

1. After filing a continuance request prior to the initial plea hearing,

Appellee filed a motion to suppress on November 22, 2024. Contemporaneous

with the motion, Appellee also filed another continuance request, noting that

trial was then scheduled to commence on December 4, 2024, and the

suppression motion should be decided prior to that. The continuance was
J-S34041-25

granted, and both the suppression and plea hearings were rescheduled for

January 29, 2025.

At the January 29th hearing, the Commonwealth informed the court that

the affiant in this case, Officer Douglas Klinefelter of the Newberry Township

Police Department, was not present. N.T. Suppression Hearing, 1/29/25, at

1. The Commonwealth noted that, although it had sent Officer Klinefelter a

subpoena to appear for the hearing in November 2024, after speaking to the

officer on the telephone after his failure to appear for the January 29th hearing,

the Commonwealth realized that the officer had the wrong date for the hearing

in his calendar. Id. at 2. The officer also informed the Commonwealth that

he had the flu and had just left work to start a sick day. Id. The

Commonwealth told Officer Klinefelter not to come to court. Id. The

Commonwealth then asked for a continuance of the suppression hearing. Id.

After discussion, the trial court denied the request for a continuance.

The trial court also found that the Commonwealth was unable to meet its

burden of establishing that the evidence was not obtained in violation of

Appellee’s rights. Accordingly, the trial court granted the motion to suppress,

and set a new date for Appellee’s trial. The Commonwealth filed a timely

notice of appeal on February 28, 2024.

On appeal, the Commonwealth presents the following claims:
I. The trial court abused its discretion in denying the
Commonwealth’s motion for a continuance where its essential
witness was unexpectedly unavailable.

-2-
J-S34041-25

II. The trial court erred in granting [Appellee’s] motion to
suppress as a direct consequence of improperly denying the
Commonwealth’s continuance request.

Brief for Commonwealth at 9, 17 (unnecessary capitalization omitted).

Our Rules of Criminal Procedure permit a trial court to grant a

continuance to either party “in the interests of justice.” Pa.R.Crim.P. 106(A).

Further, review of the denial of a continuance request is well-settled:
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, … 873 A.2d 1277, 1281 ([Pa.] 2005) (quoting
Commonwealth v. McAleer, … 748 A.2d 670, 673 ([Pa.] 2000)
(internal citations omitted)).

Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014). Moreover:
This Court has observed that “[t]rial judges necessarily require a
great deal of latitude in scheduling trials. Not the least of their
problems is that of assembling the witnesses, lawyers, and jurors
at the same place at the same time, and this burden counsels
against continuances except for compelling reasons.”
Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super.
2013) (quotation omitted). However, the trial court exceeds the
bounds of its discretion when it denies a continuance on the basis
of ‘an unreasonable and arbitrary insistence upon expeditiousness
in the face of a justifiable request for delay[.]’ Id. at 671-72
(quotation marks and quotation omitted). Accordingly, we must
examine the reasons presented to the trial court for requesting
the continuance, as well as the trial court’s reasons for denying
the request. See id.

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016).

-3-
J-S34041-25

The Commonwealth requested the continuance in the present case so

that it could secure a material witness for the suppression hearing. When

deciding a motion for a continuance in this circumstance, the trial court is

guided by the following factors:
(1) the necessity of the witness to strengthen the party’s case;
(2) the essentiality of the witness to the party’s case; (3) the
diligence exercised to procure the witness’ presence at trial; (4)
the facts to which the witness could testify; and (5) the likelihood
that the witness could be produced at the next term of court.

Id. at 143-44 (cleaned up).

The trial court explained its reasoning for denying the Commonwealth’s

request for a continuance, as follows:

[D]uring the pendency of this case, the defense made two timely
continuance requests that provided the [c]ourt with a surfeit of
time to consider the requests without wasting precious time in our
bloated and overflowing schedule. The Commonwealth, by
contrast, despite the January 29, 2025 suppression hearing
having been scheduled on November 25, 2024, waited until
January 9, 2025[,] to subpoena the officer. Setting aside the
clearly lax attitude that the Commonwealth had towards securing
a necessary witness, the Commonwealth attorney made clear that
no one from the District Attorney’s office had been in
contact with Officer Klinefelter prior to and about the
January 29, 2025 hearing. The assistant district attorney
informed the Court that he called Officer Klinefelter after the
officer failed to appear. It was surprising that the Commonwealth
had not prepared or even touched base[] with an indispensable
witness prior to a suppression hearing that would turn upon that
witness’ testimony. The Commonwealth simply did not perform
their due diligence in securing their necessary witness. Moreover,
[Appellee] incurred costs in taking off from work while
simultaneously paying for defense counsel to prepare and appear
for the hearing.

To the extent that the Commonwealth might seek to bolster its
having issued a subpoena by noting that it reached out to Officer
Klinefelter via phone call and ascertained that the officer might

-4-
J-S34041-25

have been ill, we would note the temporal deficiency of such an
assertion. Any actions taken by the Commonwealth after the
officer failed to appear should not be factored into any due
diligence calculus. Had the Commonwealth done their due
diligence and reached out to the officer before the hearing[,] then
the officer would have been aware of the hearing and he likely
would have been able to apprise the Commonwealth of his illness
much sooner than after the hearing was scheduled to occur. Had
this orderly progression, based upon due diligence, occurred[,]
then the [c]ourt could have, on an emergency basis, excused the
officer as unavailable and quite possibly limited the extra costs
borne by [Appellee].

In light of the foregoing, our judgment was not manifestly
unreasonable, nor the result of partiality, prejudice, bias or ill-will.
Rather, this [c]ourt attempted to perform our role of shepherding
cases towards a timely conclusion, which was frustrated by the
Commonwealth’s lack of due diligence.

Trial Court Opinion (TCO), 4/25/25, at 7-8 (some emphasis added, some

emphasis in original).

The trial court found that the Commonwealth had not acted with due

diligence in obtaining the necessary witness. In challenging this conclusion,

the Commonwealth argues that when it issued a subpoena to Officer

Klinefelter on January 9, 2025, 20 days before the hearing at issue, it

“demonstrate[d] reasonable diligence.” Brief for Commonwealth at 12. The

Commonwealth notes that it had not requested a continuance at any time

prior to the January 29, 2025 hearing.

The Majority relies on Commonwealth v. Micelli, 573 A.2d 606 (Pa.

Super. 1990), as support for its decision to reverse the trial court’s order.

Upon review, I conclude that Micelli is distinguishable.

-5-
J-S34041-25

In Micelli, the defendant was charged with two counts of driving under

the influence and one count of possessing drug paraphernalia. Micelli, 573

A.2d at 607. As the trial date approached, the Commonwealth sent a

subpoena to Officer Patrick J. Manning, the main witness for the prosecution

in the case. Trial was scheduled for June 28, 1989. The Commonwealth sent

a subpoena to Officer Manning notifying him of the trial date on May 12, 1989.

Id.

On May 16, 1989, Officer Manning received an order to report for a two-

week period of reserve duty in the Pennsylvania National Guard, which

overlapped with the trial date. Id. The Commonwealth received notice from

Officer Manning on June 15, 1989, of his unavailability for trial. Id. On June

19, 1989, the Commonwealth filed a request for a continuance with the trial

court, on the basis that an essential witness would be unavailable. Id. The

court scheduled a hearing on the motion, as the defendant did not consent to

a continuance. Id.

Following the hearing, the trial court denied the request for a

continuance, believing that the officer knew of his orders months previously,

but the Commonwealth failed to act diligently and wasted valuable court time.

Id. The trial court then dismissed the charges, and the Commonwealth

appealed to this Court. Id.

The only issue discussed in Micelli was whether the Commonwealth

acted with due diligence in attempting to prepare for trial such that the

continuance should have been granted. In overturning the denial of the

-6-
J-S34041-25

requested continuance and remanding for trial, this Court noted the following

sequence of events:

Officer Manning was given notice on May 12th of the trial date but
did not receive his orders for reserve duty until May 16th. He did
not notify the district attorney’s office of the conflict in his
schedule until June 15, 1989[,] which was a Thursday. The
following Monday the Commonwealth petitioned for a
continuance. We find the Commonwealth acted diligently and
cannot be expected to continually verify the trial date with all of
its witnesses.

Id. at 608. This Court further stated, “We understand the trial court’s concern

for not allowing a lackadaisical attitude on the part of litigants to backlog the

court with cases being continued[,] but in this instance we find the

Commonwealth, in the interests of justice, should have been granted a

continuance.” Id.

Here, unlike in Micelli, it was not Officer Klinefelter’s failure to notify

the Commonwealth of his inability to attend the hearing that caused the

delayed request for a continuance; rather, it was the fact that the

Commonwealth failed to even once reach out to Officer Klinefelter after

sending him a subpoena to confirm that he would be attending the hearing.

The Commonwealth’s analysis of its due diligence neglects to confront this

primary reason expressed by the trial court for its denial of the continuance

request. Simply put, after sending the subpoena to Officer Klinefelter on

January 9, 2025, not one person from the District Attorney’s office contacted

the officer to discuss the upcoming hearing. The Commonwealth’s analysis is

as follows:

-7-
J-S34041-25

The suppression hearing was scheduled for January 29, 2025. The
Commonwealth issued a subpoena to Officer Klinefelter for this
hearing on January 9, 2025, a full twenty days before the
scheduled date. This action demonstrates reasonable diligence.
The officer was subsequently unable to attend the hearing due to
an unexpected illness requiring him to take off work, which was
unforeseeable by the Commonwealth.

The trial court found a lack of due diligence because the
Commonwealth waited from November 25, 2024 (when the
hearing was scheduled) until January 9, 2025, to subpoena the
officer, and because “no one from the District Attorney’s office had
been in contact with Officer Klinefelter prior to and about the
January 29, 2025 hearing” until after he failed to appear. This
reasoning, however, misconstrues the Commonwealth’s
obligations and is contrary to established precedent, particularly
[Micelli].

Brief for Commonwealth at 12 (citations to record omitted). The

Commonwealth stresses that Officer Klinefelter’s illness, arising on the day of

the hearing, was unforeseeable, and that it had no obligation to ‘continually

verify’ the hearing date with its witnesses. However, had the Commonwealth

spoken to Officer Klinefelter about the upcoming hearing once, even the

night before, it might have been aware that the officer was feeling poorly.

More importantly, had the Commonwealth touched base with the officer in the

days or weeks before the hearing, the officer would have been made aware

that he had the incorrect date in his calendar, and either made an extra effort

to appear for the hearing, or informed the Commonwealth’s attorney that he

was ill prior to Appellee’s case being called. The utter lack of communication

is a clear lack of due diligence.

While it is true, as the Commonwealth argues, that Micelli holds that

the Commonwealth “cannot be expected to verify the trial date with all of its

-8-
J-S34041-25

witnesses,” I stress that Officer Klinefelter was the affiant, meaning the

principal witness against Appellee. Notwithstanding the obvious necessity

of this witness, the district attorney indicated that he did not once contact

Officer Klinefelter until after the case was before the court and the officer

failed to appear. I conclude that the trial court did not abuse its discretion in

finding that the Commonwealth’s failure to contact a principal witness prior to

the hearing constituted a lack of due diligence. See, e.g., Norton, 144 A.3d

at 144 (finding no abuse of discretion in the denial of the Commonwealth’s

request for a continuance where the request was made after jury selection but

before trial and the Commonwealth maintained that it had recently discovered

a need to obtain additional witnesses to counter the defendant’s defense; the

trial court found that diligence was lacking because these same witnesses

were necessary to the prosecution all along; “it was the Commonwealth’s own

oversight that created a last minute search for witnesses”).

The Majority provides a compelling case that the Commonwealth’s

request should have been granted, but that is not the correct standard. The

question is whether the trial court abused its discretion, not what we would

have done in the first instance. Brooks, 104 A.3d at 469. “Where the

discretion exercised by the trial court is challenged on appeal, the party

bringing the challenge bears a heavy burden.... [I]t is not sufficient to

persuade the appellate court that it might have reached a different conclusion

if, in the first place, charged with the duty imposed on the court below; it is

necessary to go further and show an abuse of the discretionary power.”

-9-
J-S34041-25

Commonwealth v. Wesley, 860 A.2d 585, 589 (Pa. Super. 2004), quoting

Commonwealth v. Garcia, 661 A.2d 1388, 1394-95 (Pa. Super. 1995).

Here, I do not find evidence of bias, prejudice, or ill-will on the part of the trial

court. As such, I would conclude that the Commonwealth is not entitled to

relief on this issue.

In its second issue on appeal, the Commonwealth builds upon the first:

it argues that the trial court erred in granting Appellee’s motion to suppress,

which it maintains was the direct result of the improper denial of the

Commonwealth’s motion for a continuance. Somewhat confusingly, the

Commonwealth frames the trial court’s decision as being based upon a

discovery violation. The evidence was not suppressed because of a discovery

violation; it was suppressed because the Commonwealth failed, at the

suppression hearing, to present evidence proving that the evidence Appellee

sought to suppress was not obtained in violation of his rights. Once a motion

to suppress is filed, “it is the Commonwealth’s burden to prove, by a

preponderance of the evidence, that the challenged evidence was not obtained

in violation of the defendant’s rights.” Commonwealth v. Miller, 333 A.3d

470, 479 (Pa. Super. 2025). The Commonwealth’s burden at a suppression

hearing is to present documentary evidence or witness testimony about the

circumstances surrounding the seizure of evidence. Commonwealth v.

Easter, 331 A.3d 675, 682 (Pa. Super. 2025), reargument denied (Mar. 13,

2025), appeal denied, No. 187 MAL 2025, 2025 WL 2527286 (Pa. Sept. 3,

2025). “Where the Commonwealth cannot, or will not, present any evidence

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at all [at the suppression hearing], the defendant’s motion must be

granted[.]” Commonwealth v. Enimpah, 106 A.3d 695, 703 (Pa. 2014).

Here, the trial court’s refusal to grant the Commonwealth’s request for

a continuance did not obviate the Commonwealth’s burden to demonstrate

that suppression of the evidence was not required. Easter, supra. The

Commonwealth’s failure to submit any evidence at all in support of the

constitutionality of the seizure in this case required the trial court to grant

Appellee’s motion to suppress. Enimpah, supra. As the trial court succinctly

stated: “As we did not abuse our discretion by denying the request for

continuance, the Commonwealth’s second claim of error fails of necessity.”

TCO at 9. After careful review, I agree with the trial court and conclude that

the Commonwealth’s second issue warrants no relief.

For the reasons set forth above, I would affirm the trial court’s order

denying the Commonwealth’s motion for a continuance and granting

Appellee’s motion to suppress. Therefore, I respectfully dissent.

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