Com. v. Heyboer, M. ( 2022 )

J-A11020-22
2022 PA Super 125COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARY HEYBOER (ESTATE OF MARY :
OLINDE HEYBOER) :
: No. 1418 EDA 2021
Appellant :
Appeal from the Judgment of Sentence Entered June 15, 2021
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-SA-0000040-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARY HEYBOER (ESTATE OF MARY :
OLINDE HEYBOER) :
: No. 1419 EDA 2021
Appellant :
Appeal from the Judgment of Sentence Entered June 15, 2021
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-SA-0000041-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARY HEYBOER (ESTATE OF MARY :
OLINDE HEYBOER) :
: No. 1420 EDA 2021
Appellant :
Appeal from the Judgment of Sentence Entered June 15, 2021
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-SA-0000042-2020
J-A11020-22
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
OPINION BY STABILE, J.: FILED JULY 26, 2022
Appellant, Mary Heyboer (now, the Estate of Mary Olinde Heyboer),
appeals from the judgments entered in these consolidated cases on June 15,
2021, in the Court of Common Pleas of Monroe County, which granted the
Motion to Dismiss filed by Appellee, the Commonwealth, and denied
Appellant’s Motion to Abate Summary Charges. Following review, we vacate
the judgments against Appellant and direct that the charges against Appellant
be abated.
In its Rule 1925(a) opinion, the trial court explained:
The matter concerns [Appellant’s] appeal to the Pennsylvania
Superior Court. After three Great Danes were seized from
[Appellant] based upon a search warrant, six summary citations
were filed against her for denying the dogs the necessary
veterinary care and neglect of animals, 18 Pa.C.S.A.
§ 5532(a)(1), [3]. Following a summary trial, three of the
citations pertaining to veterinary care were dismissed and
[Appellant] was found guilty of the remaining citations related to
neglect/cruelty to animals. [Appellant] then filed timely summary
appeals pertaining to these convictions. On November 23, 2020,
prior to a de novo trial, [Appellant] unexpectedly died. Thereafter,
on February 5, 2021, the Commonwealth filed a Motion to Dismiss
seeking to dismiss the summary appeals and requesting judgment
of the issuing authority to be entered. On April 14, 2021, counsel
for the now deceased [Appellant], filed a Motion to Abate
Summary Charges on Appeal De Novo (“Motion”). [Appellant’s]
counsel suggests that the citations filed against [Appellant] should
be dismissed in light of her death. On July 13, 2021, [Appellant’s]
counsel filed a Suggestion of Death.
On April 15, 2021, after hearing, this court took the matter under
advisement. Thereafter, on June 11, 2021, we entered an order
granting the Commonwealth’s Motion to Dismiss and denied
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[Appellant’s] Motion.1 Pursuant to Pa.R.Crim.P. 462(D), we
entered the judgments imposed by the issuing authority as
follows: [restitution in the amount of $11,164.32 on docket No.
40 SA 2020 as well as fines and costs on all three dockets].
Trial Court Rule 1925(a) Opinion, 9/22/21, at 1-2 (unnumbered).
On appeal, Appellant asks us to consider eleven issues. See Appellant’s
Brief at 7-8. Because we find the first three issues to be interrelated and
collectively dispositive of this appeal, we limit our discussion to those three
issues, which Appellant presents as follows:
1. Did the trial court err in entering a judgment which reinstated
the Magistrate’s conviction, fine, costs, restitution and
forfeiture pursuant to [Pa.R.Crim.P.] 462 where [Appellant]
failed to appear for her summary appeal hearing because she
had passed away after the summary appeals were filed?
____________________________________________
1 Following the April 15, 2021 hearing, no additional proceedings were
conducted in open court. Although the trial court states it entered its orders
on June 11, 2021, the docket reflects that the orders were not served on the
parties until June 15, 2021 (although the senior deputy clerk’s sworn
certificate indicates June 16, 2021). While Pa.R.A.P. 301(a)(2) directs that
“[i]n a criminal case in which no post-sentence motion has been filed, a
judgment of sentence is appealable upon the imposition of sentence in open
court,” here, there was no sentence imposed in open court. Further, “[t]he
general rule is that when a defendant appeals from a judgment of sentence,
the time for appeal runs from the date the court imposes sentence, informs
the defendant of his right to appeal within 30 days, and enters judgment on
the docket.” Commonwealth v. McCleary, 482 A.2d 651, 652 (Pa. Super.
1984). Because sentence was not imposed in open court and Appellant was
not even aware of the imposition of either a sentence or a right to appeal until
the court’s order was served on June 15, 2021, we reject the assertions by
the trial court and by the Commonwealth that the notices of appeal filed on
July 14, 2021 are untimely. See Trial Court Rule 1925(a) Opinion, 9/22/21,
at 2 (unnumbered) and Commonwealth Brief at 6.
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2. In mistakenly applying a Rule 462 analysis, in the alternative,
did the trial court err in refusing to hold a summary appeal
hearing?
3. Did the trial court err in entering a judgment which reinstated
the Magistrate’s conviction, fine, costs, restitution and
forfeiture and instead, refused to abate the charges against the
deceased defendant[?]
Appellant’s Brief at 7.
The trial court ordered entry of judgment against Appellant after
granting the Commonwealth’s motion to dismiss “[p]ursuant to Pa.R.Crim.P.
462(D).” Trial Court Rule 1925(a) Opinion, 9/22/21, at 2 (unnumbered). As
this Court observed in Commonwealth v. Dixon, 66 A.3d 794 (Pa. Super.
2013), our standard of review from the grant of a motion to dismiss for failure
to appear at a de novo hearing
is limited to whether the trial court committed an error of law and
whether the findings of the trial court are supported by competent
evidence. Commonwealth v. Askins, 761 A.2d 601, 603 (Pa.
Super. 2000). The adjudication of the trial court will not be
disturbed on appeal absent a manifest abuse of
discretion. Id. “An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support as to
be clearly erroneous.” Commonwealth v. Diamond, 945 A.2d
252, 258 (Pa. Super. 2008) (citation omitted).
Pennsylvania Rule of Criminal Procedure 462 governs de novo
trials following the appeal of a summary conviction. That rule
states, in pertinent part, the following:
Rule 462. Trial De Novo
(A) When a defendant appeals after the entry of a guilty
plea or a conviction by an issuing authority in any summary
proceeding, upon the filing of the transcript and other
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papers by the issuing authority, the case shall be heard de
novo by the judge of the court of common pleas sitting
without a jury.
***
(D) If the defendant fails to appear, 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.
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 judge determines that the defendant is absent without
cause from the trial de novo.” Pa.R.Crim.P. 462, cmt. Therefore,
before a summary appeal may be dismissed for failure to appear,
the trial court must ascertain whether the absentee defendant had
adequate cause for his absence. See Commonwealth v.
Akinsanmi, 55 A.3d 539, 540–41 (Pa. Super. 2012). In the event
that good cause is established, the defendant is entitled to a new
summary trial. See [Commonwealth v. Marizzaldi, 814 A.2d
249, 251, 253 (Pa. Super. 2002)]; Commonwealth v. Doleno,
406 Pa. Super. 286, 594 A.2d 341, 343 (1991).
Id. at 796.
Here, the trial court noted that “while the rule does not specify a
procedure where a defendant is deceased, it is clear that it is within the
discretion of the court to dismiss the summary appeal when a defendant fails
to appear.” Trial Court Rule 1925(a) Opinion, 9/22/21, at 3 (unnumbered).
While we agree that it is within the court’s discretion to dismiss a summary
appeal when a defendant fails to appear, the comment to Rule 462 clearly
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contemplates an exercise of that discretion only “when the judge determines
that the defendant is absent without cause.” Pa.R.Crim.P. 462(D), cmt.2
As this Court recognized in Akinsanmi,
When a defendant does not appear for the summary appeal and
does not provide an excuse, dismissal of the appeal is
proper. Commonwealth v. Slomnicki, 773 A.2d 216, 218 (Pa.
Commw. 2001). Conversely, when good cause for the absence is
shown, a new trial should be granted. See Marizzaldi, 814 A.2d
at 251, 253 (where appellant arrived ten minutes late due to
missing bus and tardiness was not voluntary, appellant should
have been given opportunity to present case); Commonwealth
v. Mesler, 732 A.2d 21, 25 (Pa. Commw. 1999) (where
appellant’s counsel was present and represented that appellant
was on [his] way, appeal should not have been
dismissed); Commonwealth v. Doleno, 406 Pa. Super. 286,
594 A.2d 341, 343–44 (1991) (where appellant’s attorney told
appellant wrong date, absence was not voluntary; good cause
shown).
Id., 55 A.3d at 540-41.3
____________________________________________
2 In Commonwealth v. Harth, 252 A.3d 600 (Pa. 2021), our Supreme Court
reiterated that “we may consult the explanatory comment of the committee
which worked on the rule in determining the proper construction and
application thereof.” Id. at 617 (citing Commonwealth v. Lockridge, 810
A.2d 1191, 1195 (Pa. 2002)).
3 In contrast to the cases where good cause was recognized as requiring the
grant of a new trial, the appellant in Akinsanmi “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.” Id., 55 A.3d
at 541. Therefore, we found no error in the trial court’s dismissal of her case.
Id. In accordance with Rule 462(D), it was appropriate in that instance to
enter judgment in the court of common pleas on the judgment of the issuing
authority.
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While neither we nor the parties have come across any case law
establishing that a defendant’s death constitutes “good cause” sufficient to
excuse an appearance at a trial de novo, common sense dictates that it does.
Certainly, if missing a bus constitutes good cause to excuse an appearance,
Marizzaldi, so does dying. We find the trial court erred in granting the
Commonwealth’s motion to dismiss pursuant to Pa.R.Crim.P. 462(D), i.e., on
the grounds that Appellant was absent from her trial de novo without cause.
The judgments entered by the trial court therefore, must be vacated.
In the wake of vacating the judgments improperly entered, we next
consider whether any further prosecution of the charges against Appellant is
available or appropriate in the trial court. We conclude there is not.
Appellant was entitled to a de novo trial in accordance with Pa.R.Crim.P.
462(A). The trial court acknowledged, “I’m not a reviewing court.” Notes of
Testimony (“N.T.”), 4/15/21, at 8. Nevertheless, by ordering that the
judgment entered by the magisterial district judge (“MDJ”) be entered as a
judgment in the court of common pleas, the trial court in effect affirmed the
order of the MDJ without giving Appellant the benefit of the trial de novo to
which she was entitled. See Commonwealth v. Krut, 457 A.2d 114, 116
(Pa. Super. 1983) (when an appellant has perfected an appeal to the court of
common pleas, the case must be retried as if the prior summary proceedings
had not occurred, that is, de novo, as if it had not heard been before and as
though no decision had been rendered previously.)
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We recognize, as did the trial court, that there was discussion during
the April 15, 2021 proceeding about holding a hearing without Appellant being
present. Trial Court Rule 1925(a) Opinion, 9/22/21, at 4 (unnumbered) (citing
N.T., 4/15/21, at 4). See also N.T., 4/15/21, at 4-5, 11-14. Relative to
conducting a hearing without the deceased party present, our Supreme Court
has addressed the merits of such a case in the context of a direct appeal.
See, e.g., Commonwealth v. Walker, 288 A.2d 741 (Pa. 1972). However,
Walker as well as Commonwealth v. Beaudoin, 182 A.3d 1009 (Pa. Super.
2018), and post-Walker cases cited in Beaudoin, id. at 1010, involved
Pa.R.A.P. 502, which provides for procedures in the event “a party dies after
a notice of appeal . . . is filed or while a matter is otherwise pending in an
appellate court.” Pa.R.A.P. 502(a) (emphasis added). In those cases, any
challenge initiated by a defendant to the regularity or constitutionality of
a criminal proceeding could be fully reviewed and decided by the appellate
process. Walker. In those cases a record of the trial proceedings was
available for review making a defendant’s appearance before the appellate
court unnecessary. The same cannot be said here where Appellant possessed
a constitutional and rule based right to be present for trial and perfected her
appeal for a trial de novo before the common pleas court, but no trial was
possible due to her subsequent death.
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Prior to Appellant’s death, she elected to appeal the decision of the MDJ,
as authorized by our procedural rules. As a result, she was entitled to a trial
de novo and the decision of the MDJ had no further force or effect. See Krut,
supra. However, Appellant died before that trial could take place. As this
Court noted in Commonwealth v. Ressler, 798 A.2d 221 (Pa. Super. 2002):
It is axiomatic that a defendant has a constitutional right to be
present during every stage of his criminal trial. Commonwealth
v. Rompilla, 721 A.2d 786, 793 (Pa. 1998). See Pa. Const. art.
I, § 9.2.[fn] This right is codified in Pennsylvania Rule of Criminal
Procedure 602(A):
The defendant shall be present at every stage of the trial
including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as
otherwise provided by this rule. The defendant’s absence
without cause shall not preclude proceeding with the trial
including the return of the verdict and the imposition of
sentence.
[fn]
“In all criminal prosecutions the accused hath a right to be
heard by himself and his counsel, to demand the nature and
cause of the accusation against him, to be confronted with the
witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and, in prosecutions by indictment or
information, a speedy public trial by an impartial jury of the
vicinage; ...”
Id. at 223 (cleaned up).
In Commonwealth v. DeCosta, 197 A.3d 813 (Pa. Super. 2018), this
Court elaborated on a defendant’s constitutional right to be present,
explaining:
Under the constitutional standard, the right to be present at trial
“is not guaranteed ‘when presence would be useless, or the
benefit but a shadow.’ Due process only requires the defendant’s
presence ‘to the extent that a fair and just hearing would be
thwarted by his absence.’” Commonwealth v. Williams, 959
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A.2d 1272, 1281-82 (Pa. Super. 2008), aff'd, 607 Pa. 597, 9 A.3d
613 (2010). As such, the constitutional rights at issue are
circumscribed by a prejudice standard – a defendant must show
that his absence from a trial proceeding could have undermined
the fairness of the proceeding.
However, Rule 602 provides for more protection than offered by
either the United States or Pennsylvania Constitutions. Rule
602 dictates that a defendant “shall be present at every
stage of the trial including the impaneling of the jury and the
return of the verdict, . . . except as otherwise provided by this
rule.” Pa.R.Crim.P. 602(A) (emphasis added). The only
exception provided by Rule 602 is where the defendant is “absent
without cause[.]” Id.Id. at 816 (emphasis in original) (footnote omitted).
Therefore, we conclude that the trial court erred and manifestly abused
its discretion by further denying Appellant’s motion to abate charges. Because
it was impossible for Appellant to be present at trial, to conduct further
proceedings in her absence would be a violation of her rights under the
Pennsylvania Constitution and under Rule 602(A). Therefore, we remand with
instruction for the charges against Appellant to be abated. See
Commonwealth v. Bizzaro, 535 A.2d 1130, 1133 (Pa. 1987) (the difficulties
attendant to the retrial of a defendant who is unable to be present to defend
himself due to death requires a remand to the trial court for the entry of an
order of abatement upon record certification of appellant's death.).
Orders reversed, judgments vacated, and charges abated. Case
remanded for proceedings consistent with this Opinion. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2022
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