Com. v. Comond, M. ( 2019 )

J-S54017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARVIN COMOND :
:
Appellant : No. 442 MDA 2019
Appeal from the Judgment of Sentence Entered February 19, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-SA-0000119-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 24, 2019
Marvin Comond appeals, pro se, from the judgment of sentence entered
in the Court of Common Pleas of Berks County after his summary appeal was
dismissed for failure to appear for his trial de novo. Upon careful review, we
affirm in part and vacate in part.
On September 27, 2017, Comond was issued citations under City of
Reading ordinances for the summary offenses of failure to repair and maintain
a sidewalk1 and failure to maintain an exterior of a structure.2 On February
28, 2018, Comond was convicted of those offenses and ordered to pay the
fines and costs of $535.50 and $135.50, respectively. On March 22, 2018,
Comond filed an appeal to the court of common pleas, which scheduled a trial
____________________________________________
1 LO § 302.3
2 LO § 301.3.1
J-S54017-19
de novo for June 6, 2018. The trial was continued until August 1, 2018, at
which time Comond failed to appear and his appeal was dismissed.
On August 2, 2018, the trial court issued an order vacating the dismissal
of Comond’s appeal, finding that Comond had not been properly served with
notice of the hearing date. The court relisted the trial de novo for August 8,
2018. On that date, the court issued a further order continuing the matter
until December 18, 2018. Subsequently, on October 15, 2018, the court
rescheduled the hearing for December 14, 2018.
On December 10, 2018, Comond filed a “Motion to Dismiss the Charges
of the Commonwealth & Motion for Continuance.” In that motion, Comond
claimed that the Commonwealth had withdrawn the citation for failure to
maintain a sidewalk, and asserted that he had remedied the other violation.
Comond also claimed that he was “an out[-]of[-]state student who is currently
pursuing his legal education” and that his last final examination was scheduled
for December 20, 2018. Motion for Continuance, 12/10/18, at ¶ 8.
Alternatively, Comond requested that his hearing be rescheduled for January
9, 2019 “to allow [him] to return to Pennsylvania.” Id. at ¶ 10. By order
dated December 14, 2018, the court rescheduled Comond’s trial de novo for
February 19, 2019. In that order, the court noted that “[n]o motion for
continuance will be considered within three business days of the scheduled
hearing, except for an emergency occurring within that time.” Order,
12/14/18 (emphasis added). On February 18, 2109, Comond faxed a letter
to the court, stating that he would be unable to attend the following day’s
-2-
J-S54017-19
hearing because he was in school out of state. Comond failed to appear on
February 19, 2019, and the court dismissed his appeal and sentenced him, in
absentia, to pay a fine of $500 per violation, plus costs and fees.
On March 6, 2019, Comond filed a “Motion to Vacate and Reconsider the
February 19, 2019 Order That Dismissed Defendant [sic] Summary Appeal.”3
By order dated March 7, 2019, the trial court dismissed Comond’s motion.
Comond filed a timely notice of appeal on March 12, 2019, followed by a court-
ordered concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Comond raises the following claims for our review:4
1. Did the trial court erred [sic] in dismissing [Comond’s] appeal
without determining whether [Comond] had good cause for his
absence?
2. Did the trial court erred [sic] when it impose [sic] a sentence
greater than the original sentence without conducting a trial de
novo?
3. Did the trial court erred [sic] when it impose [sic] a sentence
greater ($500.00) than the original sentence (from the MDJ
$135.00) without any evidence submitted for the record?
4. Did the trial court erred [sic] in failing to have the code officer
testify at that trial de novo?
5. Did the trial court erred [sic] in sentencing [Comond] to pay
$500 for summary offense [failure to maintain a sidewalk] despite
the charges being dismissed on August 1, 2018 by the Honorable
Judge Fudeman?
____________________________________________
3 Pursuant to Pa.R.Crim.P. 720(D), a defendant is not entitled to file post-
sentence motions following a determination of guilt after a trial de novo.
4 We note that the Commonwealth did not file a brief in this matter.
-3-
J-S54017-19
6. Did the trial court erred [sic] in sentencing [Comond] to pay a
combine [sic] $1,234.00 despite the work being complete?
7. Did the trial judge erred [sic] in neglecting to rule on
[Comond’s] various motions (motion to dismiss the
Commonwealth [sic] final citation & motion for continuance) prior
to dismissing the trial de novo?
8. Did the trial court erred [sic] in vacating the August 8, 2018
order which schedule [sic] a status conference for December 18,
2018 without any good cause?[5]
9. Did the trial court violation [Comond’s] Federal and
Pennsylvania Constitutional rights?
Brief of Appellant, at 6-7.
Although Comond raises a total of nine separate issues on appeal, his
claims may be distilled to three: (1) whether the trial court erred in dismissing
his appeal de novo for failure to appear; (2) whether the trial court improperly
imposed a greater fine on the charge of failure to maintain an exterior than
had been originally imposed; and (3) whether Comond was properly convicted
of the charge of failure to maintain a sidewalk after the Commonwealth
conceded on the record that Comond had completed the necessary repairs.
We will address these claims in order.
Comond first claims that the trial court erred by dismissing his appeal
without inquiring whether there was good cause for his absence from court on
February 19, 2019. Comond claims that he did, in fact, have good cause for
____________________________________________
5 We decline to address this claim, as Comond himself informed the court that
he would not be present in the Commonwealth of Pennsylvania until after
December 20, 2018, and, therefore, cannot possibly have been prejudiced by
the court’s order rescheduling the December 18, 2018 hearing.
-4-
J-S54017-19
missing the hearing, in that he is a law student in Massachusetts and could
not appear because he was attending class. Comond is entitled to no relief
on this claim.
We begin by noting the following:
Our standard of review 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).
Commonwealth v. Dixon, 66 A.3d 794, 796 (Pa. Super. 2013).
Pennsylvania Rule of Criminal Procedure 462 governs trials de novo and
provides, in relevant part, as follows:
(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 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(A), (D). The comment to Rule 462 states 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
-5-
J-S54017-19
the trial de novo.” Id. at comment (emphasis added). Accordingly, before a
summary appeal may be dismissed for failure to appear, a trial court is
required to ascertain whether the defendant had adequate cause for his
absence.
As this Court has previously discussed:
The problem that arises in these types of cases is that, for a quite
obvious reason, trial courts often dismiss the appeals without
inquiring into whether the absentee defendant had good cause:
the person who could offer cause for the absence is the absent
defendant himself. In other words, there is no one present in the
courtroom whom the trial judge can question regarding the
reasons for the absence. Moreover, pursuant to Pa.R.Crim.P.
720(D), a defendant in a summary appeal case is not permitted
to file post-sentence motions. The trial court cannot question an
absent defendant regarding the cause of the absence, and the
defendant cannot file post-sentence motions to explain the
absence. Consequently, this Court often must address the
necessary cause inquiry arising from Pa.R.Crim.P. 462 in the first
instance. This is precisely the task that we face in the instant
matter. To do so, we must consider [Commonwealth v.]
Marizzaldi, [814 A.2d 249 (Pa. Super. 2002)], in which this Court
faced a very similar set of circumstances.
Commonwealth v. Dixon, 66 A.3d 794, 796–97 (Pa. Super. 2013).
In Marizzaldi, the defendant failed to appear for his trial de novo on
various traffic offenses. The court dismissed Marizzaldi’s appeal without any
inquiry into his reasons for failing to appear. On appeal to this Court,
Marizzaldi attached to his brief an affidavit explaining the reasons for his
absence from the trial de novo. We held as follows:
After careful review, and assuming arguendo that the facts set
forth in [the appellant’s] brief and affidavit are true and correct,
we find the case at bar sufficiently similar to [Commonwealth v.
Mesler, 732 A.2d 21 (Pa. Cmwlth. 1999)] to warrant relief. The
-6-
J-S54017-19
abbreviated transcript in the certified record does not contradict
[the appellant’s] assertions on appeal, and the brief opinion of the
trial court makes no mention that a determination of the cause or
duration of [the appellant’s] absence was made. It is for these
reasons that we are compelled to find that the record does not
establish an effort on the part of the trial court to make any such
inquiry, as was the precise situation in Mesler. This failure to do
so is contrary to the clear intent of the Rules and requires a
remand for a trial de novo. . . . [The appellant’s] tardiness was
not voluntary, and he should therefore be given an opportunity to
present a defense.
Id. at 252–53 (footnotes omitted). Accordingly, Marizzaldi stands for the
proposition that an appellant is entitled to a new trial de novo where: (1) the
trial court dismisses a summary appeal without considering whether the
absentee defendant had cause to justify his absence; and (2) the absentee
defendant presents an affidavit on appeal that—assuming the assertions
delineated in the affidavit are true—presents at least a prima facie
demonstration that cause existed for the absence, rendering that absence
involuntary. See Dixon, 66 A.3d at 797.
Here, the trial court made no inquiry on the record as to the reasons for
Comond’s absence from court. In its opinion, however, the court noted that
the date Comond requested for his hearing, January 9, 2019, was not a day
on which the court was to be hearing summary appeals and that the court’s
scheduling order for the February 19, 2019 hearing specifically stated that no
continuances would be granted, except for emergencies, within three business
days prior to the scheduled hearing date. The court further stated the
following:
-7-
J-S54017-19
[Comond] contends that this [c]ourt was “made aware” that he
would not be able to attend the hearing. We assume that
[Comond] is referring to the fax that is attached hereto as Exhibit
“A.” This [c]ourt is not in the business of practicing law by
facsimile. This [c]ourt is also not in the practice of allowing
litigants to dictate its schedule. Had a proper motion requesting
a continuance been filed, it would have been considered. It was
not in this case.
Trial Court Opinion, 5/3/19, at 4.
As required under Marizzaldi, Comond attached to his reproduced
record an “affidavit”6 in which he averred that he had previously informed the
trial court that he would not be able to attend proceedings while in law school
and had requested a January 9, 2019 hearing date. He further noted that he
had contacted the court via letter on February 18, 2019, to inform the court
that he would not be able to appear. Comond did not allege that he had not
received proper notice of the hearing date.
After our review, we conclude that the trial court did not abuse its
discretion in declining to grant Comond yet another continuance simply
because he was an out-of-state student. At the listing held on August 8, 2018,
____________________________________________
6 Comond’s filing is not, in fact, an “affidavit,” as it was not sworn to before
an officer authorized to administer oaths. See 1 Pa.C.S.A. § 1991 (defining
“affidavit” as “[a] statement in writing of a fact or facts signed by the party
making it, sworn to or affirmed before an officer authorized by the laws of this
Commonwealth to take acknowledgments of deeds, or authorized to
administer oaths, or before the particular officer or individual designated by
law as the one before whom it is to or may be taken, and officially certified to
in the case of an officer under his seal of office.”). For this reason, alone, we
may deny Comond relief, as he has failed to comply with the dictates of
Marizzaldi.
-8-
J-S54017-19
the court suggested a new date of December 18, 2018, but accommodated
Comond’s schedule by agreeing to re-list his case in the new year. By order
dated December 14, 2018—which Comond does not dispute he received—the
court scheduled trial de novo for February 19, 2019, more than two months
later. Nevertheless, Comond waited until the day before the scheduled trial
de novo to contact the court to request a continuance—a continuance the court
previously stated in writing that it would not grant except in the case of an
emergency. Comond has presented no justification other than his ongoing
status as a law student for his absence from his trial de novo. After prior
attempts to accommodate Comond, and in light of the last-minute, untimely
nature of Comond’s continuance request, the court was under no obligation to
continue to delay resolution of this matter indefinitely while Comond
completed his course of study. Accordingly, Comond is not entitled to a new
trial de novo. See Commonwealth v. Akinsanmi, 55 A.3d 539 (Pa. Super.
2012) (appellant not entitled to new trial de novo where absence due to
scheduled and known commitment; appellant did not establish good cause,
involuntary absence, or unforeseen circumstance).
Next, Comond asserts that the trial court erred in imposing a greater
fine on the charge of failure to maintain an exterior than had been originally
imposed by the magisterial district justice (“MDJ”). Specifically, the MDJ
imposed a total sentence of $135.50 on that charge, representing a $100 fine,
plus $35.50 in costs. After the dismissal of Comond’s appeal de novo, the
court sentenced him to pay a fine of $500, plus costs. While Comond cites
-9-
J-S54017-19
inapposite law regarding sentencing guidelines in support of this claim, we
nonetheless concur that relief is warranted.
“Whenever a judge imposes a more severe sentence upon a defendant
. . . the reasons for doing so must affirmatively appear.” Commonwealth v.
Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1999) (citation omitted). Here,
the record is devoid of any legal or factual support for the court’s imposition
of an enhanced penalty on the charge of failure to maintain an exterior
following the dismissal of Comond’s summary appeal. The trial court’s opinion
is of no assistance on this issue, as it failed to address this specific claim,
despite Comond having raised it in his court-ordered Rule 1925(b) statement.
See Rule 1925(b) Statement, 4/1/19, at ¶ 3 (“Did the trial court erred [sic]
when it impose [sic] a sentence greater ($500.00) than the original sentence
(from the MDJ $135.00) without any evidence submitted for the record?”).
Because the enhanced fine for failure to maintain an exterior is not supported
in the record, Serrano, supra, we are constrained to vacate that portion of
Comond’s sentence and direct the trial court to re-impose sentence in the
amount originally entered by the MDJ.
Finally, Comond asserts that he was improperly convicted of the charge
of failure to maintain a sidewalk, as the Commonwealth conceded on the
record that he had completed the necessary repairs.7 In support of this claim,
____________________________________________
7 Comond also asserts that the Commonwealth actually withdrew the citation
regarding failure to maintain a sidewalk. Comond includes in his reproduced
- 10 -
J-S54017-19
Comond cites the following statement made by Frederick Lachat, Esquire,
counsel for the City of Reading, at the August 8, 2018 hearing:
MR. LACHAT: Your Honor, I am here on Number 17. And the
Defendant is here but we are continuing both citations although
we do intend to withdraw the one because he has fixed his
sidewalk. The windows we are working with him on.
N.T. Hearing, 8/8/18/ at 2 (emphasis added).
It is well-established that a party is bound by an admission of fact.
For an averment to qualify as a judicial admission, it must be a
clear and unequivocal admission of fact. Judicial admissions are
limited in scope to factual matters otherwise requiring evidentiary
proof, and are exclusive of legal theories and conclusions of law.
The fact must have been unequivocally admitted and not be
merely one interpretation of the statement that is purported to be
a judicial admission.
____________________________________________
record, and also as an exhibit to various filings in the trial court, a copy of an
order dated August 1, 2018, purporting to dismiss the violation for failure to
maintain a sidewalk. However, that order does not contain an original
signature by the trial court; rather, the court’s name is typed over the
signature line. Moreover, the trial court docket does not reflect the entry of
such an order, and it is not contained in the record certified to this Court, save
as an exhibit attached to filings by Comond. Rather, the record contains two
orders, both entered on August 1, 2018, and signed by the trial court,
dismissing Comond’s appeal and ordering him to pay the balance due in full.
Those orders were subsequently vacated by order dated August 2, 2018, the
court having found that Comond had not been properly served with notice of
the summary appeal date. Because the order Comond relies upon does not
appear ever to have been filed of record, we decline to consider it. See
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (observing
that “[t]his Court does not rely on items dehors the record[.]”). Moreover,
given the serious question as to the authenticity of the order Comond has
proffered to both this Court and the trial court, the trial court may wish to
inquire of Comond as to the manner in which he obtained the order.
- 11 -
J-S54017-19
Century Sur. Co. v. Essington Auto Ctr., LLC, 140 A.3d 46, 52 (Pa. Super.
2016) (citation omitted).
Here, counsel for the Commonwealth made an unequivocal admission,
on the record in open court, that Comond had “fixed his sidewalk” and that
the Commonwealth, therefore, intended to withdraw the citation as to that
charge. This admission is binding on the Commonwealth and, therefore, its
continued pursuit of the claim of failure to maintain a sidewalk against Comond
was improper. Accordingly, we vacate Comond’s conviction and judgment of
sentence for failure to maintain a sidewalk.
Conviction for failure to maintain an exterior affirmed; conviction for
failure to maintain a sidewalk vacated; judgments of sentence on both
convictions vacated; case remanded for proceedings consistent with the
dictates of this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2019
- 12 -