Com. v. Trice, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID TYRONE TRICE, JR. :
:
Appellant : No. 332 WDA 2018
Appeal from the Order Entered February 13, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-SA-0002364-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 14, 2018
David Tyrone Trice, Jr., appeals from the order, entered in the Court of
Common Pleas of Allegheny County, following his summary convictions for two
counts each of driving an unregistered vehicle,1 operating a vehicle without
valid inspection,2 and evidence of emission inspection3 (docket no. 2364 of
2017). After review, we vacate and remand.
Trice was found guilty of the above-mentioned summary offenses and
ordered to pay a $150 fine, plus costs. Trice filed a summary appeal from the
convictions. Both Trice’s arresting officer and Trice failed to appear for the de
novo hearing that was held on February 13, 2018. Accordingly, the trial court
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1 75 Pa.C.S.A. § 1301(a).
2 75 Pa.C.S.A. § 4703(a).
3 75 Pa.C.S.A. § 4704(c)(5).
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dismissed the summary appeal and judgment was entered against Trice. See
Pa.R.Crim.P. 462(D). This timely pro se appeal follows.
While utterly devoid of any required content for headings and sections
as prescribed in the Rules of Appellate Procedure, Trice argues that he was
unable to attend his de novo hearing because “[he] was unable to call off of
work due to [his] new start and unste[a]dy schedule.” Appellant’s Brief, at 1.
Pursuant to Rule 462:
* * *
(C) In appeals from summary proceedings arising under the
Vehicle Code or local traffic ordinances, other than parking
offenses, the law enforcement officer who observed the alleged
offense must appear and testify. The failure of a law enforcement
officer to appear and testify shall result in the dismissal of the
charges unless:
(1) the defendant waives the presence of the law
enforcement officer in open court on the record;
(2) the defendant waives the presence of the law
enforcement officer by filing a written waiver signed by the
defendant and defense counsel, or the defendant if
proceeding pro se, with the clerk of courts; or
(3) the trial judge determines that good cause exists for
the law enforcement officer’s unavailability and grants a
continuance.
(D) If the defendant fails to appear [for a trial de novo], the trial
judge may dismiss the appeal and enter judgment in the court of
common pleas on the judgment of the issuing authority[.]
Pa.R.Crim.P. 462(C), (D). The Comment to Rule 462 explains that
“[p]aragraph D makes it clear that the trial judge may dismiss a summary
case appeal when the trial judge determines that the defendant is absent
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without cause from the trial de novo.” Pa.R.Crim.P. 462(D), comment
(emphasis added).
Here, the notes from the summary appeal indicate that in addition to
Trice’s absence, Trice’s arresting officer was also not present at the
proceeding. See N.T. Summary Appeal, 2/13/18, at 3. There is nothing in
the record indicating that Trice waived the presence of the officer via a written
waiver or that the trial judge determined that good cause existed for the
officer’s unavailability. See Pa.R.Crim.P. 462(C)(2)-(3). Moreover, with
regard to Trice’s failure to appear under subsection (D), the court never
inquired into whether Trice had good cause to justify his absence from the de
novo trial. Commonwealth v. Marizzaldi, 814 A.2d 249 (Pa. Super 2002).
See Commonwealth v. Peralta, 173 A.3d 813, 816 (Pa. Super. 2017) (“Rule
462 provides that if the defendant fails to appear, the trial judge may dismiss
the appeal[;]” “in counties outside of Philadelphia, the trial judge has
discretion to dismiss the appeal when no cause is shown.”) (emphasis in
original and added).
Instantly, the trial court states in its Pa.R.A.P. 1925(a) opinion that
“[d]ismissal was proper, even though the officer also failed to appear.” Trial
Court Opinion, 3/28/18, at 2. The court cites to Commonwealth v.
Akinsanmi, 55 A.3d 539 (Pa. Super. 2012) and Commonwealth v. Lowe,
698 A.2d 607 (Pa. Super. 1997), to support its decision to dismiss the appeal
because Trice did not appear for his hearing and failed to provide an excuse.
We find both cases inapposite.
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In Akinsanmi, the defendant received a traffic citation for parking
where prohibited by sign in a Pittsburgh park. Defendant was found guilty of
the summary offense; defendant filed a notice of appeal from the summary
conviction. The trial court held a de novo hearing. When the defendant failed
to appear for the hearing, the court dismissed the appeal and judgment was
entered for the Commonwealth pursuant to Pa.R.Crim.P. 462(D). Defendant
appealed the judgment, arguing that the traffic citation was improperly issued.
Defendant did “not address her failure to attend the [de novo] hearing except
to say . . . that she was unable to return from a research conference in time
to attend the hearing.” 55 A.3d at 540. In affirming the court’s order entering
judgment against the defendant our Court stated:
In the instant case, [Defendant] did not appear for the hearing.
This was not a case of an involuntary absence, nor was it due to
unforeseen circumstances. [Defendant] was attending a research
conference. She does not explain why she did not seek a
continuance given the scheduled conflict with her hearing. She
does not offer any good cause for missing her hearing, other than
being at a conference. This is not a good cause, an involuntary
absence, or an unforeseen circumstance. The trial court properly
dismissed the case upon [Defendant’s] failure to appear. We find
no error in that action.
Id. at 541.
Notably, in Akinsanmi, there is nothing indicating that the defendant’s
citing officer did not appear for the de novo hearing. Thus, the trial court’s
reliance on that authority in the instant case is misleading. Rule 462 is clear
that where an officer who observed the alleged offense fails to appear and
testify at the trial de novo, the result is that the trial court “shall . . . dismiss[]
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the charges” where the three enumerated exceptions do not apply.
Pa.R.Crim.P. 462(C) (emphasis added). The court fails to acknowledge how
the citing officer’s absence was excused in any way under subsection (C) and
why Trice’s absence justified automatic dismissal of the appeal and judgment
entered against him without first inquiring whether he was absent for good
cause and in light of the officer’s absence.
We likewise find Lowe not applicable to the instant case. Rule 462 was
amended in 2000 and was derived from former Rules of Criminal Procedure
86(G) and 1117(c). Lowe was decided in 1997, prior to the enactment of
Rule 462, and in accordance with now-repealed Rule 1117(c). Thus, we do
not find it instructive in the instant matter.
Accordingly, where the trial court did not inquire into whether Trice had
good cause to justify his absence from the de novo trial, Marizzaldi, supra,
Trice’s citing officer was also not present at the proceeding, and there is
nothing in the record indicating that Trice waived the presence of the officer
via a written waiver or that the trial judge determined that good cause existed
for the officer’s unavailability, Pa.R.Crim.P. 462(C)(2)-(3), we are compelled
to vacate and remand the instant matter.4
Order vacated. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
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4 Although Trice did not raise this issue, the clear language of Rule 462(C)
compels this decision.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2018
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