Com. v. Szczesniak, M. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MATTHEW PETER SZCZESNIAK, : No. 3800 EDA 2016
:
Appellant :
Appeal from the Order Entered November 2, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-MD-0005766-2015
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 05, 2019
Matthew Peter Szczesniak appeals from the November 2, 2016 order
denying his petition for leave to appeal nunc pro tunc, following his
convictions, in absentia, of the summary offenses of reckless driving and
turning movements and required signals.1 After careful review, we affirm.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows. On August 3, 2012, appellant received
one summary citation for reckless driving (Citation No. P1V94FXXW20) and
one summary citation for turning movements and required signals (Citation
No. P1V94GB2727) during the course of his arrest for driving under the
influence. On October 9, 2012, the Philadelphia Traffic Court convicted
1 75 Pa.C.S.A. §§ 3736 and 3334(a), respectively.
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appellant in absentia of reckless driving and turning movements and
required signals after he failed to show up for his scheduled court date.
Appellant failed to appeal his convictions. Thereafter, on June 17, 2015, the
Pennsylvania Department of Transportation notified appellant that his driving
privileges were being revoked for a period of 5 years, due to the fact that his
most recent May 22, 2015 DUI conviction constituted a third major violation
within a five-year period.
On August 5, 2015, appellant filed a “Petition for Leave to File
Summary Traffic Appeal Nunc Pro Tunc” in the Court of Common Pleas of
Philadelphia County (“trial court”). A hearing on appellant’s nunc pro tunc
petition was scheduled for October 26, 2015, at the conclusion of which said
petition was dismissed after appellant failed to appear. (See notes of
testimony, 10/26/15 at 9.) On November 23, 2015, the trial court vacated
its order dismissing appellant’s petition, and a second hearing was scheduled
for March 11, 2016. Following said hearing, the trial court denied appellant’s
petition for leave to appeal nunc pro tunc on November 2, 2016. This
timely appeal followed on December 1, 2016. On May 2, 2017, the trial
court directed appellant to file a concise statement of errors complained of
on appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. Appellant
filed a timely Rule 1925(b) statement on May 8, 2017, and the trial court
filed its Rule 1925(a) opinion on November 9, 2017.
Appellant raises the following issues for our review:
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1. Whether the trial court erred in denying
appellant’s petition to appeal nunc pro tunc
where Philadelphia Traffic Court did not have
jurisdiction to try the appellant since the
evidence of record establishes that appellant
did not respond to his citations or enter a plea
and the court, rather than issue a bench
warrant as is required, held a trial
in absentia[?]
2. Whether the trial court erred in denying
appellant’s petition to appeal nunc pro tunc
where no adequate notice of trial was provided
to the appellant by the court[?]
3. Whether the trial court erred in denying
appellant’s petition to appeal nunc pro tunc
where there was no competent record of
evidence to rebut appellant’s testimony that he
did not receive notice of his conviction and his
right to appeal from the court as required[?]
Appellant’s brief at 4 (full capitalization omitted; emphasis added).
In an appeal from the denial of a petition to appeal nunc pro tunc,
our standard of review is as follows:
[A]llowance of appeal nunc pro tunc is within the
sound discretion of the trial court, and our scope of
review of a decision of whether to permit an appeal
nunc pro tunc is limited to a determination of
whether the trial court has abused its discretion or
committed an error of law. Orders granting or
denying [a] petition to appeal nunc pro tunc are
reversible [only] in instances where the court abused
its discretion or where the court drew an erroneous
legal conclusion.
Commonwealth v. Yohe, 641 A.2d 1210, 1211 (Pa.Super. 1994) (internal
citations and quotation marks omitted; some brackets in original).
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Here, appellant did not file an appeal within 30 days of his summary
convictions. See Pa.R.Crim.P. 460(A) (stating, inter alia, that “an appeal
shall be perfected by filing a notice of appeal within 30 days after the entry
of the guilty plea, the conviction, or other final order from which the appeal
is taken.”). Therefore, the only way appellant could attack the convictions
was by obtaining relief through a petition for leave to appeal
nunc pro tunc. “[A]n appeal nunc pro tunc is intended as a remedy to
vindicate the right to an appeal where that right has been lost due to certain
extraordinary circumstances.” Commonwealth v. Williams, 893 A.2d 147,
150 (Pa.Super. 2006) (citation omitted), appeal denied, 921 A.2d 497 (Pa.
2007).
The crux of appellant’s first claim is that the denial of his petition for
leave to appeal nunc pro tunc was improper because the Philadelphia
Traffic Court lacked subject matter jurisdiction to conduct his trial
in absentia. (Appellant’s brief at 10.) We disagree.
“Subject matter jurisdiction speaks to the competency of a court to
hear and adjudicate the type of controversy presented.” Commonwealth
v. Succi, 173 A.3d 269, 283 (Pa.Super. 2017) (citation omitted), appeal
denied, 188 A.3d 1121 (Pa. 2018). “Issues pertaining to jurisdiction are
pure questions of law, and an appellate court’s scope of review is plenary.
Questions of law are subject to a de novo standard of review.”
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Commonwealth v. McGarry, 172 A.3d 60, 65 (Pa.Super. 2017) (citation
omitted), appeal denied, 185 A.3d 966 (Pa. 2018).
The jurisdiction and venue of traffic court in this Commonwealth is
governed by 42 Pa.C.S.A. § 1302. In 2013, the Legislature enacted
legislation that abolished the Philadelphia Traffic Court and transferred the
jurisdiction to hear “prosecutions for summary offenses arising under . . .
Title 75[]” to the newly established Traffic Division of the Philadelphia
Municipal Court. See 42 Pa.C.S.A. §§ 1121, 1123(a)(9). Prior to that time,
Philadelphia had two separate courts that dealt with summary and
misdemeanor traffic offenses. Summary traffic offenses, like appellant’s
instant convictions, could only be heard in Philadelphia Traffic Court and
misdemeanor traffic offenses could only be heard in Philadelphia Municipal
Court. Because appellant was found guilty in absentia of summary traffic
violations in the Philadelphia Traffic Court on October 9, 2012, the
2013 restructuring of the traffic court does not have any bearing on the
current matter. At the time of appellant’s convictions,
Section 1302(a.1)(1)(i) vested the Philadelphia Traffic Court with jurisdiction
“of all prosecutions for summary offense arising under . . . Title 75.”
42 Pa.C.S.A § 1302(a)(i). Accordingly, under the plain reading of
Section 1302, the Philadelphia Traffic Court had exclusive subject matter
jurisdiction to adjudicate all summary traffic offenses committed within
Philadelphia County at that time. Appellant’s claim to the contrary must fail.
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Appellant further contends that the Philadelphia Traffic Court lacked
jurisdiction to conduct his trial in absentia because it failed to issue a bench
warrant pursuant to Pa.R.Crim.P. 430(B) after he did not respond to the
summary traffic citations. (Appellant’s brief at 11-14.) This claim is
meritless.
An appellant who claims the trial court improperly tried him
in absentia bears the burden of “establish[ing] that his absence was with
cause[.]” Commonwealth v. Johnson, 764 A.2d 1094, 1097 (Pa.Super.
2000), appeal denied, 781 A.2d 141 (Pa. 2001). The decision to conduct a
trial in absentia remains within the discretion of the trial court. See
Commonwealth v. Wilson, 712 A.2d 735, 739 (Pa. 1998) (holding that
when a defendant voluntarily absents himself from the trial proceedings
without cause, he has waived his right to be present, and the trial court
retains discretion to continue without delay).
Read in relevant part, Rule 430(B) provides that a bench warrant shall
be issued when “the defendant fails to respond to a citation or summons
that was served upon the defendant personally or by certified mail return
receipt requested[.]” Pa.R.Crim.P. 430(B)(1)(a).
Here, the Philadelphia Traffic Court’s failure to issue a bench warrant
in this matter after appellant did not respond to the traffic citations did not
divest the court from jurisdiction. On the contrary, the authority of the
Philadelphia Traffic Court to conduct a trial in absentia is set forth in
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Pennsylvania Rule of Criminal Procedure 455, which provides, in relevant
part, as follows:
(A) If the defendant fails to appear for trial in a
summary case, the trial shall be conducted in
the defendant’s absence, unless the issuing
authority determines that there is a likelihood
that the sentence will be imprisonment or that
there is other good cause not to conduct the
trial in the defendant’s absence. If the trial is
not conducted in the defendant’s absence, the
issuing authority may issue a warrant for the
defendant’s arrest.
....
(F) If the defendant does not respond within
10 days to the notice [of conviction and
sentence] in paragraph (D), the issuing
authority may issue a warrant for the
defendant’s arrest.
Pa.R.Crim.P. 455(A), (F).
Under Rule 455, a trial court is not required to issue a bench warrant
prior to conducting a trial in absentia. Rather, the comment to Rule 455
states that:
Comment: In those cases in which the issuing
authority determines that there is a likelihood that
the sentence will be imprisonment or that there is
other good cause not to conduct the trial in the
defendant's absence, the issuing authority may
issue a warrant for the arrest of the defendant
in order to have the defendant brought before
the issuing authority for the summary trial.
See Rule 430(B). The trial would then be conducted
with the defendant present as provided in these
rules. See Rule 454.
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Pa.R.Crim.P. Comment (emphasis added). Based on the forgoing,
appellant’s second claim of trial court error must fail.
In his final two claims, appellant argues that the trial court abused its
discretion in denying his petition for leave to appeal nunc pro tunc because
he was not provided adequate notice of the October 9, 2012 trial
in absentia, his subsequent convictions in absentia, nor his right to appeal
therefrom, pursuant to Rule 455(D). (Appellant’s brief at 15-19.) The
record belies appellant’s claims.
It is well settled that,
[a] party seeking leave to appeal from a summary
conviction nunc pro tunc has the burden of
demonstrating two things: (1) that the delay in
filing his appeal was caused by extraordinary
circumstances involving fraud or a wrongful or
negligent act of a court official resulting in injury to
that party and (2) that upon learning of the
existence of the grounds relied upon for nunc pro
tunc relief, he acted promptly to seek such relief.
Yohe, 641 A.2d at 1212 (citation omitted).
Pursuant to Rule 455(D),
[i]f the defendant is found guilty, the issuing
authority shall impose sentence, and shall give
notice by first class mail to the defendant of the
conviction and sentence, and of the right to file an
appeal within 30 days for a trial de novo . . . .
Pa.R.Crim.P. 455(D).
Instantly, the trial court found that appellant was not entitled to
nunc pro tunc relief because the record fails to demonstrate that
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appellant’s delay in seeking an appeal was caused by extraordinary
circumstances. (Trial court opinion, 11/9/17 at 2.2) In support of this
conclusion, the trial court reasoned as follows:
Appellant testified at his hearing on March 11, 2016
that he did in fact receive the traffic citations from
the officer at the time of his arrest on or about
August 3, 2012. ([Notes of testimony, 3/11/16 at
7-10.]) These citations had on them the required
dates for the appellant to appear in court to answer
the traffic violations. ([Id. at 17-21.]) Appellant
acknowledged these dates to appear. Appellant
acknowledged the fact that he has resided at the
same address for the past 25 years. ([Id. at 15.])
Moreover, [] appellant states that he never received
notice of his court trial default, despite notices being
sent to his home address advising him of his right to
appeal. The electronic notices were present in his
Court file and these were brought to the attention of
[] appellant and his counsel by the Court. ([Id. at
28-29.])
On November 2, after holding the matter under
advisement this court made the following findings of
fact and conclusions of law: ([Notes of testimony,
11/2/16 at 4-7.])
[Appellant’s] testimony at the time of the motion
was that he did receive the specific citations, which
were marked as exhibit A and B, from the police
officer at the scene and at the time of the stop.
However, he was at this point unsure as to whether
or not it was exactly on the date of August 3rd or
August 2nd. But he did indicate that all the citations
-- that both of the summary citations were issued to
him personally at the scene on the same date that
he was charged with the DUI. In addition to that,
[appellant] contested the notice to appear for trial.
2 The trial court’s November 9, 2017 opinion does not contain pagination; for
the ease of our discussion, however, we have assigned each page a
corresponding number.
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The notice to appear for trial is on both the citations
that [appellant] indicated that he had received. On
the date of the stop that notice indicates: “Notice to
Appear: You must appear for your summary trial
which is scheduled for October 9, 2012 at 9:00 a.m.
at 800 Spring Garden Street, Philadelphia, PA
19123[,]” which is the address where we are right
now. It’s the Traffic Court address. That notice
appeared on both of those citations. [Appellant’s] --
the basis for his contest of that notice was that he
didn’t read and didn’t see that notice on the citations
although he did receive the citations. And based on
the fact that he didn’t read or see that notice that it
was not adequate notice[,] which is required under
the rules and the law.
Id. at 3-4 (emphasis omitted; citations to notes of testimony reformatted).
Following our careful review of the record, we agree with the trial
court’s assessment that no fraud or a breakdown in the operation of the
court occurred in this matter. See Yohe, 641 A.2d at 1212. The
Philadelphia Traffic Court clearly provided appellant with adequate notice of
the date and location of his summary trial on both of his citations, and
mailed proper notice of his convictions in absentia to the address where
appellant resided, which was the same address listed on his driver’s license.
(See Traffic Citations, Nos. P1V94FXXW20 and P1V94GB2727, 8/5/12;
Philadelphia Traffic Court Notice of Conviction In Absentia, 10/11/12;
Commonwealth’s Exhibit A.) Additionally, appellant’s appellate rights were
set forth on the citations and notice of conviction that were mailed to his
residence. (Id.) Appellant’s final claims of trial court error, therefore, must
fail.
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Based on the foregoing, we affirm the November 2, 2016 order
denying appellant’s petition for leave to appeal nunc pro tunc.
Order affirmed.
Lazarus, J. joins this Memorandum.
McLaughlin, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/19
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