Com. v. Brown D. ( 2017 )

J. S02005/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DONALD W. BROWN, JR., : No. 3378 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, October 19, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007157-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2017
Donald W. Brown, Jr., appeals from the October 19, 2015 judgment of
sentence of nine months’ probation imposed after the Philadelphia Municipal
Court found him guilty of resisting arrest and disorderly conduct. 1 The
Philadelphia Court of Common Pleas dismissed appellant’s subsequent
appeal from the municipal court after he failed to appear for his trial
de novo. After careful review, we affirm the judgment of sentence.
The relevant facts and procedural history, as gleaned from the certified
record, are as follows. On July 25, 2014, appellant repeatedly yelled
obscenities at a cashier and SEPTA Police Officer Joshua Mann after they
informed him that his sister was too old to ride the elevated rail line without
1
18 Pa.C.S.A. §§ 5104 and 5503(a)(3), respectively.
J. S02005/17
paying a fare. (Notes of testimony, 7/16/15 at 7-12.) Officer Mann
attempted to issue appellant a citation, at which point appellant fled and had
to be apprehended. (Id. at 12-16.) In the ensuing scuffle, Officer Mann
suffered a broken bone in one of his hands. (Id.) Appellant was arrested in
connection with this incident and charged with resisting arrest and disorderly
conduct. On July 16, 2015, appellant proceeded to a bench trial in the
Philadelphia Municipal Court before the Honorable Wendy L. Pew. As noted,
appellant was found guilty of the aforementioned offenses and sentenced to
nine months’ probation. Appellant filed a timely notice of appeal and a trial
de novo was scheduled before the Honorable Abbe F. Fletman of the
Philadelphia Court of Common Pleas for October 19, 2015.
When his case was called to determine its status,
[appellant] was not present. [Appellant’s] counsel
admitted that she had had no contact with her client
in quite some time. Court records showed that on
August 3, 2015, [appellant] signed service of a
subpoena, notifying him of his court date, its
location, and that he was required to be present by
9:00[a.m.] The case was put on hold to allow
[appellant’s] counsel to locate [appellant] while the
Court addressed other matters. At approximately
11:45[a.m.] that day it came time for the Court to
revisit [appellant’s] case. He was still absent and his
counsel had been unable to contact him.
Trial court opinion, 3/10/16 at 1-2.
Following appellant’s failure to appear, Judge Fletman dismissed the
trial de novo, issued a bench warrant for appellant, and reinstated the
sentence originally imposed by Judge Pew. (Notes of testimony, 10/19/15
-2-
J. S02005/17
at 3-6.) On November 2, 2015, appellant appeared at a hearing before the
Honorable Karen Yvette Simmons of the Philadelphia Municipal Court. At
said hearing, Judge Simmons informed appellant that his appeal had been
dismissed due to his failure to appear for trial and reinstated the sentence
originally imposed by Judge Pew. (Notes of testimony, 11/2/15 at 4.)
Appellant addressed the court, but did not offer an excuse for his absence at
the trial de novo and made no claim that his appeal had been improperly
dismissed. (Id. at 5-6.) Appellant did not file a motion for reconsideration.
This timely appeal followed.2
On appeal, appellant raises the following issues for our review:
A. Did not the Philadelphia Court of Common
Pleas violate [appellant’s] constitutional right
to a jury trial in dismissing his trial de novo
and reinstating his Philadelphia Municipal Court
conviction and judgment of sentence in that
[appellant] never waived his right to a jury
trial for the offenses of which he was charged?
B. Did not the Philadelphia Court of Common
Pleas err in dismissing [appellant’s] trial
de novo and reinstating his Philadelphia
Municipal Court conviction and judgment of
sentence in that the evidence was insufficient
to prove that [appellant’s] failure to appear at
his trial de novo was willful and voluntary?
Appellant’s brief at 3.
Preliminarily, we note that following a conviction in Philadelphia
Municipal Court, an appellant has two options on appeal: he may “request
2
Appellant and the trial court have complied with Pa.R.A.P. 1925.
-3-
J. S02005/17
either a trial de novo or file a petition for a writ of certiorari with the
Philadelphia Court of Common Pleas.” Commonwealth v. Coleman,
19 A.3d 1111, 1118-1119 (Pa.Super. 2011), citing Pa.R.Crim.P 1006(1)(a).
“A trial de novo gives the defendant a new trial without reference to the
Municipal Court record; a petition for writ of certiorari asks the Common
Pleas Court to review the record made in the Municipal Court.”
Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa.Super. 2015)
(citation omitted). “[W]hen a defendant files a petition for a writ of
certiorari, the Philadelphia Court of Common Pleas sits as an appellate
court.” Coleman, 19 A.3d at 1119 (citation omitted). On the contrary,
when a defendant is afforded a trial de novo, as is the case here, any
matters “pertaining to the proceedings before the district magistrate are
irrelevant.” Beaufort, 112 A.3d at 1269 (citation omitted).
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. The adjudication of the trial
court will not be disturbed on appeal absent a
manifest abuse of discretion. 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. Dixon, 66 A.3d 794, 796 (Pa.Super. 2013) (citations
and internal quotation marks omitted).
-4-
J. S02005/17
Appellant first argues that the trial court’s dismissal of his appeal for a
trial de novo was improper because it violated his constitutional right to a
jury trial. (Appellant’s brief at 11-17.) Appellant maintains that, at the very
least, the trial court should have conducted a trial in absentia. (Id. at
18-19.)
Upon review, we conclude that appellant has waived these claims. The
record reveals that appellant’s counsel failed to raise either of these issues
during the October 19, 2015 proceeding, and appellant did not file a motion
for reconsideration. Rather, appellant raised these arguments for the first
time in his Rule 1925(b) statement. It is well established that issues not
raised below, even those of a constitutional nature, are waived. See
Commonwealth v. Miller, 80 A.3d 806, 811 (Pa.Super. 2013) (holding
that, “[a]ppellant’s failure to raise his constitutional claims before the trial
court impedes appellate review, and his failure to develop the record before
the trial court interferes with our ability to conduct a meaningful evaluation
of the issues raised[.]”); see also Pa.R.A.P. 302(a) (“[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on
appeal[]”). Moreover, we note that appellant is not entitled to a jury trial on
a summary offense. See Commonwealth v. Smith, 868 A.2d 1253, 1257
(Pa.Super. 2005), appeal denied, 877 A.2d 462 (Pa. 2005) (finding that
there is no right to a jury trial when a sentence of six months or less is
-5-
J. S02005/17
imposed.) Accordingly, we decline to address appellant’s first claims on the
basis of waiver.
Appellant next argues that the trial court abused its discretion in
dismissing his appeal for failure to appear for his trial de novo because
there was insufficient evidence to prove that his absence “was willful and
voluntary.” (Appellant’s brief at 19-22.) We disagree.
Pennsylvania Rule of Criminal Procedure 1010 governs the procedures
to be followed in situations where a defendant is convicted in Philadelphia
Municipal Court and seeks a trial de novo in the Court of Common Pleas.
Pa.R.Crim.P. 1010(A)(2).3 Read in relevant part, Rule 1010 provides that,
“[i]f the defendant fails to appear for the trial de novo, the Common Pleas
Court judge may dismiss the appeal and thereafter shall enter judgment in
the Court of Common Pleas on the judgment of the Municipal Court judge.”
Pa.R.Crim.P. 1010(B). The comment to Rule 1010 explains that:
Paragraph (B) makes it clear that the Common Pleas
Court judge may dismiss an appeal when the judge
determines that the defendant is absent
without cause from the trial de novo. If the
appeal is dismissed, the Common Pleas Court judge
must enter judgment and order execution of any
sentence imposed by the Municipal Court judge.
3
Pennsylvania Rule of Criminal Procedure 462 is the statewide (in all
counties outside of Philadelphia) equivalent of Rule 1010(B) and provides, in
pertinent part, as follows: “[i]f 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(D).
-6-
J. S02005/17
Id. Comment (emphasis added). Therefore, before an appeal for a trial
de novo may be dismissed for failure to appear, the trial court must
ascertain whether the absentee defendant had good cause for his absence.
See Commonwealth v. Akinsanmi, 55 A.3d 539, 540 (Pa.Super. 2012)
(noting, “[w]hen a defendant does not appear for the summary appeal and
does not provide an excuse, dismissal of the appeal is proper. Conversely,
when good cause for the absence is shown, a new trial should be granted.”
(citations omitted)).
Upon review, we conclude that the trial court properly dismissed
appellant’s appeal after he failed to appear for his trial de novo. It is
undisputed that appellant failed to appear for his October 19, 2015 de novo
trial under the plain meaning of Rule 1010(B). Accordingly, we must resolve
only the question of whether appellant demonstrated “good cause” for his
absence. The record reveals that counsel offered no explanation for
appellant’s absence during the October 19, 2015 de novo trial. (See notes
of testimony, 10/19/15 at 4-5.) On the contrary, appellant’s counsel
acknowledged that dismissal of the appeal was appropriate. (Id. at 5.) At
the November 2, 2015 hearing, appellant again failed to offer any
explanation as to why he failed to appear at his de novo trial or seek a
continuance. (See notes of testimony, 11/2/15 at 3-6.)
The trial court, in turn, noted that it was “entirely reasonable” for it to
conclude that appellant’s absence was willful and voluntary:
-7-
J. S02005/17
[Appellant] had notice of his court date on August 3,
2015, giving him two and a half months to inform his
counsel of any scheduling issues. The Court
attempted to accommodate [appellant] and his
counsel by giving him almost three hours to either
come to court or inform the Court of the
circumstances that led to his absence. . . . No
reason for [appellant’s] absence was offered.
Trial court opinion, 3/10/16 at 2-3.
Given the record before us, we find that appellant has failed to satisfy
his burden to show good cause for his absence from the de novo trial.
Appellant has also failed to demonstrate an involuntary absence or an
unforeseen circumstance. It is well settled that, as a reviewing court, we
are bound by the trial court’s weight of the evidence and credibility
determinations. See Commonwealth v. Sanchez, 907 A.2d 477, 491 (Pa.
2006), cert. denied, 551 U.S. 1106 (2007) (noting where the trial court
functions as fact-finder, “appellate courts generally do not substitute their
judgments for those of a fact-finder in matters of credibility”). Accordingly,
we find that the trial court’s dismissal of the de novo appeal was entirely
proper under Rule 1010, and appellant’s claim of trial court error must fail.
For all the foregoing reasons, we affirm the October 19, 2015
judgment of sentence.
Judgment of sentence affirmed.
-8-
J. S02005/17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
-9-