Com. of PA v. F.A. Simms

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 11 C.D. 2018
: Submitted: October 15, 2018
Francine A. Simms, :
Appellant :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE BROBSON FILED: November 20, 2018
Francine A. Simms (Simms) appeals from an order of the Court of
Common Pleas of Westmoreland County (trial court), which dismissed Simms’
summary appeal due to her failure to appear at the scheduled trial de novo. We now
vacate the trial court’s order and remand for further consideration by the trial court
consistent with this opinion.
On April 28, 2016, Rostraver Township Police issued Simms two
citations for (1) driving with a suspended license and (2) improper use of a turning
lane, in violation of Sections 1371 and 3331 of the Vehicle Code,
75 Pa. C.S. §§ 1371, 3331. After a summary trial on the matter—at which Simms
failed to appear—a magisterial district judge found Simms guilty. Simms appealed
the judgment to the trial court.
On May 16, 2017, the trial court held a trial de novo. Simms did not
attend this trial, nor did she apprise the trial court of her anticipated absence. The
transcript of the proceeding provides, in pertinent part:
[Cmwlth]: Francine Simms, it’s Number 364 of 2016.
Judge, she’s failed to appear. The officer is
here. We would request that the appeal be
dismissed.
[TC]: All right. Is Francine Simms or anyone on
her behalf in the courtroom?
Answering not, and seeing that the notice of
this hearing was sent to the defendant at her
address and not returned, the appeal is
dismissed for failure to appear and prosecute
the appeal.
(Supplemental Reproduced Record at 2.) By order dated May 16, 2017, the trial
court affirmed the judgment of the magisterial district judge and dismissed Simms’
appeal. Simms appealed the trial court’s order to the Superior Court and, thereafter,
motioned to transfer the case to this Court. The Commonwealth did not file an
objection to the motion to transfer. By order dated November 21, 2017, the Superior
Court granted Simms’ motion. The matter is now ripe for disposition in this Court.
On appeal,1 Simms argues that the trial court erred by dismissing her
appeal without first ascertaining whether Simms had good cause for her absence
from the trial de novo. In a footnote in Simms’ brief, Simms’ counsel offers the
following excuse for Simms’ nonappearance: “On or about the date of your
Appellant’s Summary Appeal hearing she had multiple close family deaths that
resulted in her inability to appear in Court or to notify the Court of her
circumstances.” (Simms’ Br. at 5, n.2.) Simms seeks a remand for the trial court to
determine whether she had good cause for her nonappearance and, if so, for a new
trial. In response, the Commonwealth argues that Simms’ proffered reason for her
1
This Court’s review of a trial court’s determination on appeal from a summary conviction
is limited to determining whether there has been an error of law or whether competent evidence
supports the trial court’s findings. Commonwealth v. Spontarelli, 791 A.2d 1254, 1262 n.2 (Pa.
Cmwlth. 2002).
2
absence is unverified and insufficient for the grant of a new trial. Further, the
Commonwealth objects to this Court’s jurisdiction over the matter, arguing that
proper jurisdiction lies with the Superior Court.
Prior to evaluating the merits of Simms’ appeal, we must address the
Commonwealth’s objection to this Court’s jurisdiction. The Commonwealth argues
that this matter does not fall within this Court’s appellate jurisdiction, asserting that
the Superior Court has exclusive jurisdiction over appeals arising under the Vehicle
Code. Pursuant to Section 742 of the Judicial Code, 42 Pa. C.S. § 742, the Superior
Court has jurisdiction over all appeals from orders of common pleas courts unless
jurisdiction is vested in this Court under Section 762 of the Judicial Code, 42 Pa.
C.S. § 762. After review, we perceive no basis in Section 762 of the Judicial Code
upon which we could conclude that this Court has appellate jurisdiction over the trial
court’s order.
Nonetheless, Pennsylvania Rule of Appellate Procedure 741(a)
provides:
The failure of an appellee to file an objection to the
jurisdiction of an appellate court on or prior to the last day
under these rules for the filing of the record shall, unless
the appellate court shall otherwise order, operate to perfect
the appellate jurisdiction of such appellate court,
notwithstanding any provision of law vesting jurisdiction
of such appeal in another appellate court.
See also 42 Pa. C.S. § 704. Here, the Commonwealth raises an objection to
jurisdiction for the first time in its brief on the merits. The Commonwealth,
therefore, has failed to object to this Court’s appellate jurisdiction in a timely
manner, thereby waiving the issue. See Pettko v. Pa. Am. Water Co., 39 A.3d 473,
476 n.2 (Pa. Cmwlth.) (holding failure to timely object to jurisdiction results in
waiver of issue), appeal denied, 51 A.3d 840 (Pa. 2012).
3
Turning to the merits of Simms’ appeal, Pennsylvania Rule of Criminal
Procedure 462 (Rule 462) governs trials de novo following the appeal of a summary
conviction. Rule 462 provides, in pertinent part:
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 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 explanatory comment to Rule 462 provides the following
with respect to Paragraph (D): “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.” Pa. R. Crim. P. 462 cmt. (emphasis
added). Accordingly, before a summary appeal may be dismissed, “the trial court
must ascertain whether the absentee defendant had adequate cause for his absence.”
Commonwealth v. Dixon, 66 A.3d 794, 796 (Pa. Super. 2013). Failure to do so
constitutes reversible error. Commonwealth v. Mesler, 732 A.2d 21, 25 (Pa.
Cmwlth. 1999). In the event that good cause is established, the defendant is entitled
to a new trial. Commonwealth v. Marizzaldi, 814 A.2d 249, 252-53 (Pa.
Super. 2002).
While practice may vary from judicial district to judicial district, it is
not uncommon for a common pleas court to list seriately multiple summary appeals
for hearing before a single judge on a particular day. Like this case, the failure of a
defendant/appellant to appear at the scheduled proceeding will usually elicit an oral
4
motion from the prosecutor to dismiss the appeal pursuant to Rule 462(D). This
places the common pleas court judge in an awkward position, as the Pennsylvania
Superior Court explained in Dixon:
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 [Pennsylvania
Rule of Criminal Procedure] 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.
Dixon, 66 A.3d at 796-97. As a consequence, where a common pleas court grants a
motion to dismiss for nonappearance at the time of the scheduled hearing, whether
a defendant had good cause not to appear is often raised for the first time on appeal
to either this Court or to the Superior Court.2
In Commonwealth v. Lowe, 698 A.2d 607 (Pa. Super.), appeal denied,
704 A.2d 1381 (Pa. 1997), the common pleas court entered a guilty verdict against
a defendant in a summary appeal under then Pennsylvania Rule of Criminal
Procedure 1117(c) (Rule 1117(c)), the predecessor to Rule 462, where the defendant
failed to appear for trial. On appeal to the Superior Court, the defendant contended
2
We see nothing in the rules that compels the common pleas court to dismiss, either sua
sponte or otherwise, a summary appeal on the day of the scheduled trial de novo and without the
defendant present in the courtroom. It seems to us that the common pleas court could,
alternatively, issue an order requiring the defendant to show cause why her nonappearance at the
scheduled trial de novo should not result in dismissal of her summary appeal pursuant to
Rule 462(D). Following this alternative procedure would likely curb, if not eliminate, the few
appeals that we and the Superior Court see implicating this issue.
5
that the common pleas court erred in dismissing the matter without requiring the
Commonwealth to present evidence. The Superior Court rejected that contention
and affirmed the common pleas court, holding that Rule 1117(c) authorized the
common pleas court to dismiss the appeal and re-enter judgment on the summary
conviction when the defendant failed to appear.
In Mesler, on the day of the scheduled summary appeal hearing, the
defendant’s attorney was present in the courtroom when the common pleas court
called the defendant’s case. The defendant, however, was absent from the courtroom
at the time. Over the objection of the defendant’s counsel, the common pleas court
entered an order dismissing the summary appeal under then Rule 1117(c). This
Court reversed, holding that the common pleas court failed to assess whether or not
the defendant had good cause for his absence, as required by the explanatory
comment to the rule. In so doing, this Court acknowledged the Superior Court’s
decision in Lowe, but distinguished it on the facts: “If neither [the appellant] nor his
attorney was present when the case was called, the court could conclude that [the
appellant] did not intend to appear and prosecute his statutory appeal and it could be
summarily dismissed.” Mesler, 732 A.2d at 25. Because, however, the defendant’s
counsel was present in the courtroom when the common pleas court judge called the
case and objected to its dismissal, the common pleas court in Mesler could not
conclude that the defendant did not intend to pursue the appeal. Accordingly, under
that circumstance, the common pleas court was required to determine whether the
defendant had good cause for his nonappearance before dismissing the appeal. Id.3
3
In addition to the foregoing rationale, the Court also found persuasive former
Pennsylvania Rule of Criminal Procedure 2, currently Pennsylvania Rule of Criminal
Procedure 101 (Rule 101). Id. Rule 101 provides:
6
In Marizzaldi, the defendant appealed a summary conviction pro se.
The defendant, however, was not present in the courtroom when his case was called.
The common pleas court dismissed the case pursuant to Rule 462(D). On appeal,
and represented by counsel, the defendant argued that he arrived ten minutes late for
his trial, but the matter had already been dismissed due to his absence from the
courtroom. He claimed he was delayed because he missed his bus. He further
claimed that the common pleas court did not afford him an opportunity to explain
his tardiness. These claims by the defendant were set forth in an affidavit attached
to his brief on appeal. Marizzaldi, 814 A.2d at 251.
A divided three-judge panel of the Superior Court reversed. The
appellate court noted first that, because the defendant was precluded by rule from
filing post-trial motions, the appellate brief was the defendant’s first opportunity to
challenge the common pleas court’s compliance with Rule 462(D). Id. at 252. The
appellate court also distinguished Lowe, because in Lowe the appellant did not argue
that he had good cause for his nonappearance; rather, he challenged only the entry
of a verdict against him without the Commonwealth’s presentation of evidence at
the trial de novo. Id. at 252 n.2. The appellate court reviewed the transcript and
record and found no indication that the common pleas court made any determination
of the cause or duration of the defendant’s absence from the courtroom. For
purposes of the appeal, the appellate court accepted as true the allegations in the
(A) These rules are intended to provide for the just determination of every
criminal proceeding.
(B) These rules shall be construed to secure simplicity in procedure,
fairness in administration, and the elimination of unjustifiable expense and delay.
(C) To the extent practicable, these rules shall be construed in consonance
with the rules of statutory construction.
Pa. R. Crim. P. 101.
7
affidavit accompanying the defendant’s brief on appeal. The appellate court then
found as fact that the defendant’s absence from the courtroom was not “voluntary,”
and, therefore, he should be given an opportunity to present a defense. Id. at 253.
The court consequently vacated the sentence and remanded for a new trial.
The Honorable Phyllis W. Beck penned a concurring statement.
Although Judge Beck agreed with the majority’s decision to vacate and remand, she
would have remanded only for a hearing on the question of whether the defendant
had good cause for his failure to appear at the trial de novo. Id. at 253 (Beck, J.,
concurring). She also expressed skepticism that the reason the defendant proffered
in his affidavit was a sufficient cause for his nonappearance. Id.
In Commonwealth v. Akinsanmi, 55 A.3d 539 (Pa. Super. 2012), the
defendant appealed the common pleas court’s entry of judgment against her
in absentia pursuant to Rule 462(D). On appeal, she contended that she missed the
trial de novo because she was out of town, attending a research conference.
In response, the Commonwealth argued that absence due to a known and scheduled
commitment does not amount to good cause for nonappearance. The Superior Court
agreed and affirmed the common pleas court:
This was not a case of a voluntary absence, nor was it due
to unforeseen circumstances. Appellant 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.
Akinsanmi, 55 A.3d at 541.
In Dixon, the defendant appealed the common pleas court’s dismissal
of his summary appeal under Rule 462(D) for nonappearance at the trial de novo.
8
Relying on Marizzaldi, the defendant argued that because the common pleas court
failed to inquire into whether the defendant had good cause for his absence before
dismissing the appeal, the appellate court must reverse. As in Marizzaldi, the
defendant in Dixon filed an affidavit with the appellate court, setting forth factual
averments in support of his good cause claim. In that affidavit, the defendant
explained that he attempted to arrive to the hearing on time, but he was
redirected/misdirected to different courthouses by unnamed personnel, ultimately
leading to his nonappearance at the correct courtroom. Dixon, 66 A.3d at 796.
In considering the appeal, the Superior Court looked to Marizzaldi:
We understand Marizzaldi to require a new trial
when: (1) a trial court dismisses a summary appeal
without considering whether the absentee defendant had
cause to justify the 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.
Id. at 797. Looking at the allegations in the affidavit, the appellate court held that
the defendant failed to make the required prima facie showing and affirmed the
common pleas court’s dismissal:
Nothing in [the a]ppellant’s affidavit indicates that
the circumstances causing his absence were beyond his
control. Appellant was aware of the time, date, and
location of the hearing. Appellant travelled to downtown
Pittsburgh, but failed to report to the correct room, which
was specified in his court papers. After a period of time,
[the a]ppellant went home without making any attempt to
contact the court. Appellant’s failure to locate the correct
room for his hearing does not render his absence
involuntary. Therefore, [the a]ppellant has failed in his
affidavit to set forth a prima facie case of involuntariness
sufficient to warrant a new trial pursuant to Marizzaldi.
Id. at 798.
9
In Commonwealth v. Shoaf (Pa. Cmwlth., No. 868 C.D. 2014, filed
February 20, 2015),4 an elderly defendant appealed the common pleas court’s
dismissal of her summary appeal pursuant to Rule 462(D), arguing that her son
notified the common pleas court that she could not attend the trial de novo due to her
hospitalization on the date of the trial. Shoaf, slip op. at 2. This Court noted that the
abbreviated transcript of the common pleas court proceeding confirmed defendant’s
claim that her son informed the common pleas court of the defendant’s
hospitalization. Notwithstanding this information, the original record showed that
the common pleas court made no further inquiry or finding with respect to whether
the defendant had good cause for her nonappearance, as contemplated by
Rule 462(D). We held:
In the absence of any such inquiry or determination, a
remand is necessary for a hearing to determine whether
[the appellant] had cause for her failure to appear at the
scheduled hearing . . . . If the trial court determines [the
appellant] had cause for failing to appear, the trial court
must provide [the appellant] with a trial de novo on the
merits.
Id. at 3. In doing so, we rejected the Commonwealth’s suggestion that the
defendant’s alleged hospitalization did not amount to good cause, because the
defendant could have sought a continuance in advance of the hearing:
Hypothetically speaking, [the appellant] could have been
admitted to the hospital shortly before commencement of
the hearing, thus rendering it infeasible for her to seek a
continuance in advance of the hearing, as the
Commonwealth suggests. The lack of a record concerning
the circumstances surrounding [the appellant’s] purported
hospitalization renders a remand necessary for a
4
See Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code
§ 69.414(a), relating to citation of unreported opinions.
10
determination of whether [the appellant] had cause for her
absence at the hearing.
Id. at 3 n.7.
Finally, in Commonwealth of Pennsylvania v. Bryant (Pa. Cmwlth.,
No. 1808 C.D. 2016, filed December 28, 2017), the defendant claimed on appeal
that the common pleas court erred in dismissing his summary appeal pursuant to
Rule 462(D). In his brief on appeal, the defendant claimed confusion about the trial
date and time. We noted the following with respect to the record: “[T]he [original]
record provided to this Court does not contain any scheduling orders or notations
that indicate Bryant received notice of the correct hearing date.” Bryant, slip op.
at 3, n.2. Consistent with Shoaf, we remanded to the common pleas court with
direction that it determine whether the defendant had good cause for his
nonappearance and, if so, to provide the defendant a trial de novo on the merits. Id.
at 3.
Based on our review and consideration of the foregoing mix of binding
and persuasive authority, we hold that an appellant, seeking to set aside a dismissal
under Rule 462(D) for failure of a common pleas court to make the necessary good
cause determination, must establish the following: (1) that the appealed order was
issued pursuant to Rule 462(D); (2) that there is nothing in the original record to
indicate that the trial court made the necessary inquiry or determination of good
cause for nonappearance prior to entry of the final appealable order; and (3) that
either (a) the record on appeal shows that the trial court failed to consider reasons
advanced for the nonappearance that may amount to good cause for the defendant’s
nonappearance, or (b) the defendant advances a justification for his nonappearance
on appeal that, if credited by the common pleas court on remand, may amount to
good cause for the defendant’s nonappearance—i.e., that the nonappearance was not
11
voluntary. If these elements are established, this Court will vacate the common pleas
court’s order and remand the matter for the good cause determination required by
Rule 462(D).
The reason for the first and second elements are obvious. The third
element, however, bears additional explanation, because on this point we part
company with our sister appellate court’s decisions in Marizzaldi and Dixon. In both
of those cases, the Superior Court considered evidence, in the form of affidavits
dehors the original record. In Marizzaldi, the Superior Court, relying on the
averments in the affidavit, effectively found that the defendant’s failure to appear
was not voluntary, vacated the common pleas court’s sentence, and remanded for a
new trial de novo. In Dixon, the Superior Court reached the opposite conclusion,
finding that the averments in the affidavit failed to make out a prima facie showing
of good cause, and, therefore, the defendant was not entitled to a new trial.
As a general rule, appellate courts must confine their review of a
common pleas court’s decision to matters of record. See, e.g., Erie Indem. Co. v.
Coal Operators Cas. 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.”); Dep’t of
Transp. v. Greisler Bros., 449 A.2d 832, 834-35 (Pa. Cmwlth. 1982) (holding that
party may not expand record on appeal by attaching items dehors record to brief on
appeal); Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (“Simply put,
if a document is not in the certified record, the Superior Court may not consider it.”),
appeal denied, 916 A.2d 632 (Pa. 2007).5 Moreover, it is generally the role of an
5
We acknowledge an apparent exception to this general rule in appeals raising ineffective
assistance of counsel claims. See Commonwealth v. Colavita, 993 A.2d 874, 897-98 (Pa. 2010).
12
appellate court to review findings of fact on appeal, not to make them.
Commonwealth v. Quiles, 619 A.2d 291, 301 (Pa. Super. 1993) (“An appellate court
does not, in the first instance, make findings of fact and conclusions of law.”) (citing
Commonwealth v. Jackson, 346 A.2d 746 (Pa. 1975)); Spatz v. Nascone, 424 A.2d
929, 942 (Pa. Super. 1981) (“Normally, as an appellate court we do not make
findings of fact on our own . . . .”).
For these reasons, we reject the Commonwealth’s contention that in
order to prevail in this appeal, Simms had to submit verified factual allegations
supporting her claim that her absence from the May 16, 2017 trial de novo was not
voluntary. To the extent Dixon and Marizzaldi could be read as requiring
supplementation of the record and fact finding by this court sitting in its appellate
jurisdiction, we do not find them persuasive. Rather than require the submission of
affidavits on appeal and engaging in fact finding, we will instead first look to the
original record to determine whether the defendant or the defendant’s representative
advanced some basis on which the common pleas court could have found good
cause, but that the common pleas court failed to consider. Mesler; Shoaf.
Alternatively, and in the absence of such record evidence, we will consider
averments of good cause in the defendant’s brief on appeal, but only for purposes of
determining whether, if true, the defendant may be entitled to a new trial de novo.
Bryant; Akinsanmi. In any event, a remand for a new trial de novo is not the
appropriate relief on appeal. Instead, we will vacate and remand for the common
pleas court to determine whether the defendant had good cause for her
We are unaware, however, of any exception to the general rule that would apply in this
circumstance, nor do we think one is necessary.
13
nonappearance—i.e., was it voluntary—and if so, to hold a new trial de novo.
Bryant; Shoaf; Marizzaldi (Beck, J., concurring); Mesler.6
Turning now to Simms’ appeal, there is nothing in the original record
in this case to indicate that Simms, either directly or through a representative, offered
any justification for her nonappearance to the common pleas court. In her brief,
however, Simms avers that she failed to attend the hearing due to the deaths of
multiple relatives. (Appellant’s Br. at 5, n.2.) The Commonwealth challenges
Simms’ proffered excuse, asserting that Simms fails to provide sufficient
information or detail on how the deaths impacted her ability to attend the trial. While
we agree that Simms’ proffered excuse lacks the level of detail we would prefer, we
will not strictly hold Simms to the standards set forth for the first time in this opinion.
Simms’ assertion of multiple deaths in the family at or around the time of the
May 16, 2017 trial de novo is at least as detailed as the claimed, but also lacking in
specificity, hospitalization that this Court accepted in Shoaf. As we did in Shoaf, we
will leave it to the trial court on remand to assess the veracity and details of the
allegations in order to determine whether Simms’ absence from the trial de novo was
not voluntary. In future cases, the Court will insist that appellants provide greater
detail so the Court can better assess whether, if accepted as true, the allegations
would support a good cause determination by the common pleas court.
In sum, the trial court dismissed Simms’ summary appeal for failure to
appear pursuant to Rule 462(D). Our review of the original record reveals that the
trial court did not make an inquiry or determination as to whether Simms had good
6
We will not go so far as requiring the common pleas court to conduct a hearing on the
question of good cause, as a hearing would be necessary only if there are genuine issues of material
fact that must be resolved in order for the common pleas court to make the good cause
determination.
14
cause for her nonappearance before dismissing the summary appeal. Similarly, the
record does not establish that Simms or a representative advised the trial court of the
reason for her nonappearance. Nonetheless, on appeal to this Court Simms advances
a reason for her nonappearance that, upon further inquiry by the trial court, may
amount to good cause for her nonappearance. Accordingly, we vacate the order of
the trial court and remand the matter with direction that the trial court determine
whether Simms had good cause for her failure to appear at the May 16, 2017 trial de
novo and, if so, to hold a new trial.
P. KEVIN BROBSON, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 11 C.D. 2018
:
Francine A. Simms, :
Appellant :
ORDER
AND NOW, this 20th day of November, 2018, the order of the Court of
Common Pleas of Westmoreland County (trial court) is VACATED, and the matter
is REMANDED to the trial court for further proceedings consistent with the
accompanying opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge