Commonwealth of Pennsylvania v. B. Creighan

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
: No. 17 C.D. 2017
v. : Submitted: June 30, 2017
:
Brian S. Creighan, :
:
Appellant :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: August 3, 2017
Brian S. Creighan appeals pro se the judgment of sentence entered in
the Allegheny County Court of Common Pleas (trial court), which sentenced
Creighan to pay a $1,000.00 fine and the costs of prosecution pursuant to
Pa. R.Crim. P. 462(D).1 We affirm.
On February 23, 2016, a private criminal complaint was approved by
a magisterial district judge (MDJ) and filed by the Code Enforcement Officer for
the Borough of West Mifflin (Borough). The complaint charged Creighan with
violating Sections 108.1, 108.1.1, and 108.1.5 of the 2006 International Property
Maintenance Code (IPMC), as adopted by Borough Ordinance 1156, with respect
1
Pa. R.Crim. P. 462(D) provides that “[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.” The Comment to Pa. R.Crim. P. 462(D) states, “Paragraph (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. If the appeal is dismissed, the trial
judge should enter judgment and order execution of any sentence imposed by the issuing
authority.”
to Creighan’s property located at 100 South Avenue in the Borough. The
complaint alleged that Creighan had failed to secure the property and demolish a
structure on the property that is hazardous due to partial collapse and required
immediate action to protect the public. Following a continuance, on May 10, 2016,
the MDJ adjudged Creighan guilty and imposed a $1,000.00 fine and costs.
On June 8, 2016, Creighan filed a summary appeal of the sentence to
the trial court. The trial court conducted its initial de novo hearing on August 23,
2016. At that hearing, the Code Enforcement Officer testified that he sent a notice
of violation to Creighan on November 18, 2015, regarding the unclean and unsafe
condition of the structure on the property and identified photographs depicting the
violations that were offered into evidence. N.T. 8/23/16 at 5. The applicable
ordinance that the property purportedly violated was also offered into evidence at
that time. Id.
However, Creighan argued that the Borough had failed to follow the
procedure outlined in Chapter 94 of the Borough’s Ordinance relating to Unsafe
Buildings that purportedly requires civil proceedings, including the posting of
notice on a structure and a hearing before Borough Council, prior to the filing of
charges against the owner. N.T. 8/23/16 at 8-10, 13. Creighan offered a copy of
Chapter 94 into evidence. Id. at 13. Ultimately, the matter was continued to
November 8, 2016, to give Creighan an opportunity to board up the structure and
to stabilize its foundation. Id. at 19-20, 22-22.
At the November 8, 2016 hearing, the matter was continued to
December 6, 2016, to enable Creighan to file an application with the Borough for a
permit to demolish the hazardous structure.2 However, Creighan did not appear at
2
The November 8, 2016 hearing concluded, in relevant part, as follows:
(Footnote continued on next page…)
2
the December 6, 2016 hearing.3 As a result, the trial court dismissed Creighan’s
statutory appeal and entered judgment on the MDJ’s judgment pursuant to
Pa. R.Crim. P. 462(D).
(continued…)
THE COURT: Why don’t we do this. If on the 6th, if he hasn’t
come for the permit, have the permit here. We’ll do it right here.
Okay? It will be – because we’re going to get this done.
MR. CREIGHAN: Absolutely.
THE COURT: Okay.
***
THE COURT: Let’s just have it done on the 6th. Okay?
MR. CREIGHAN: Absolutely. I’ll see you then, Your Honor.
N.T. 11/8/16 at 11, 12.
3
The December 6, 2016 hearing proceeded as follows:
THE CLERK: Brian Creighan at SA 1129 of 2016. On 11/8, we
gave him a month to bring the application in.
[BOROUGH SOLICITOR]: He never filed an application for the
permit and he’s not here.
THE CLERK: It’s a $1,000 fine plus costs. The defendant failed
to appear and has not called or contacted the Court in any manner
this morning.
THE COURT: All right. The defendant is guilty for failure to
appear.
N.T. 12/6/16 at 2.
3
On appeal,4 Creighan argues that: (1) the trial court improperly
determined that a valid notice of violation was issued by the Borough as required
by Sections 107.2 and 107.3 of the IPMC; (2) the trial court erred in dismissing his
statutory appeal because there is no evidence supporting a violation under Section
106.3 of the IPMC for his failure to comply with a citation issued under Section
106.2, no notice of violation was issued or served as required by Sections 107.1
and 107.2 of the IPMC, and the Borough did not follow the procedure for
condemnation in Sections 108.2 and 108.3 of the IPMC; and (3) his Sixth
Amendment5 rights were violated by his inability to appeal a citation to the Board
of Appeals as provided by Section 111.1 of the IPMC.6
However, Creighan has waived the foregoing allegations of error
relating to the purported violations of the IPMC and the Sixth Amendment by
failing to appear before the trial court on December 6, 2016, thereby properly
perfecting his appeal,7 and by failing to offer argument or evidence in support of
4
This Court’s review of an appeal from a summary conviction is limited to determining
whether the trial court committed an error of law or whether the trial court’s findings are
supported by competent evidence. Commonwealth v. Slomnicki, 773 A.2d 216, 218 n.2 (Pa.
Cmwlth. 2001).
5
The Sixth Amendment states, in relevant part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; [and] to have compulsory process for obtaining
witnesses in his favor . . . .” U.S. Const. amend. VI.
6
To the extent that Creighan raises additional claims that are not contained in the
Statement of Questions Presented portion of his appellate brief, they have been waived for
purposes of appeal. Pa. R.A.P. 2116(a); Wirth v. Commonwealth, 95 A.3d 822, 858 (Pa. 2014).
7
In order “[t]o perfect an appeal under Pa. R.Crim. P. [460], a defendant must not only
file timely notice of appeal but also appear for a trial de novo. Commonwealth v. Lowe, 698
A.2d 607 (Pa. Super.), appeal denied, [704 A.2d 1381 (Pa. 1997)].” Slomnicki, 773 A.2d at 216.
(Footnote continued on next page…)
4
these claims at that hearing or at any of the prior hearings. See Pa. R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the first
time on appeal.”); Kemp v. Qualls, 473 A.2d 1369, 1374 (Pa. Super. 1984) (“It is
well-established that a party may not successfully advance a new and different
theory of relief for the first time on appeal, while failing to assert on appeal other
grounds which were submitted for the same purpose in the lower court.”) (citation
omitted).8
Accordingly, the trial court’s order is affirmed.9
(continued…)
See also Commonwealth v. Akinsanmi, 55 A.3d 539, 540 (Pa. Super. 2012) (“When a defendant
does not appear for the summary appeal and does not provide an excuse, dismissal of the appeal
is proper.”) (citation omitted).
8
An appellant may be entitled to a new hearing in a summary appeal if his “good cause”
for failing to appear at the prior hearing is not part of the record before the trial court, but he has
presented an affidavit on appeal which, if believed, presents a prima facie demonstration that
good cause existed for his absence. Commonwealth v. Dixon, 66 A.3d 794, 797 (Pa. Super.
2013). Although Creighan’s appellate brief provides assertions regarding the circumstances
underlying his failure to appear at the December 6, 2016 hearing, these unverified statements in
his appellate brief are insufficient to establish such a prima facie demonstration. See Erie
Indemnity Co. v. Coal Operators Casualty Co., 272 A.2d 465, 466-67 (Pa. 1971) (“Apparently,
the court took into consideration facts alleged in the briefs, but briefs are not part of the record,
and the court may not consider facts not established by the record.”) (footnotes omitted).
9
This Court may affirm the trial court’s order on any basis appearing in the record.
Wright v. Department of Transportation, 596 A.2d 1241, 1246 (Pa. Cmwlth. 1991), appeal
denied, 607 A.2d 258 (Pa. 1992).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
: No. 17 C.D. 2017
v. :
:
Brian S. Creighan, :
:
Appellant :
PER CURIAM
ORDER
AND NOW, this 3rd day of August, 2017, the order of the Allegheny
County Court of Common Pleas dated December 6, 2016, at No. SA 1129 of 2016
is AFFIRMED.