Com. v. Michalides, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONDA MICHALIDES
Appellant No. 40 WDA 2017
Appeal from the Judgment of Sentence Entered November 30, 2016
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-SA-0000060-2016
BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 22, 2017
Appellant Ronda Michalides appeals from the judgment of sentence
imposed after the summary appeal of her conviction for violation of the
Public School Code’s compulsory attendance requirements.1 We affirm.
On December 10, 2015, this action was initiated by a private summary
complaint filed by the Forest Hills School District and its dean of students,
Laura Miller. N.T., 11/30/16, at 5, 12. The complaint alleged that
Appellant’s child (“the Child”) was truant from school during the 2015-2016
school year. A child is considered truant if he or she has been absent from
school for “three (3) days, or their equivalent, without lawful excuse.” 24
P.S. § 13-1354. Here, the Child attended a cyber school, and the
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1 24 P.S. § 13-1333(a)(1).
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“equivalent” of a school day occurred if the Child was logged on to the cyber
school for five hours per day. N.T., 11/30/16, at 43.
On July 12, 2016, Magisterial District Judge Rick Varner found
Appellant2 guilty in abstentia and imposed a $300.00 fine and $84.00 in
costs for a total of $384.00. On August 10, 2016, Appellant appealed her
summary conviction, and a de novo trial was held on November 30, 2016.
At trial, Ms. Miller testified on behalf of the Commonwealth, stating
that she “oversee[s]” Forest Hills School District’s “cyber academy where
[the Child] was a student.” N.T., 11/30/16, at 5. She stated that it was
Appellant’s choice to allow her Child to attend the cyber school. Id. at 8.
Ms. Miller explained that students who register for the cyber academy “have
to go to the Learning Lamp,” which provides after-school and alternative
education programs for schools, including online learning for the Forest Hills
School District. Id. at 43. She continued that, at Learning Lamp, the
students must “pick up their computer and sign all the documents saying
they understand the polices, they received the equipment, they know that
they can’t go on Facebook, that the parent is responsible for the equipment,
et cetera.” Id. Ms. Miller confirmed that part of the “policy is that after
receipt of two attendance violation letters for not attending, that [students]
will have to log on for a minimum of five hours[.]” Id.
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2Appellant was pro se at the time of the magistrate judge’s hearing, but is
now represented by counsel for her appeal to this Court.
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Ms. Miller testified that a parent must obtain Internet access for the
Child and that a parent can request reimbursement for the cost of the
access. N.T., 11/30/16, at 44. Her testimony continued:
Q So all [Appellant] had to do was get internet and make
sure [the C]hild got on and you would reimburse her?
A That’s correct.
Q And she was explained that?
A Yes.
Q What happened?
A I did not hear from her again. That was around the time
we had a court hearing with Magistrate Varner. He requested
the five hours, and then I was working with her Probation Officer
Maul to try to keep in the loop, because I honestly can’t keep
track of where she is living or what she is doing. We did a home
visit, the Learning Lamp and I did, but there was no answer over
a period of time that we tried to visit the house, because we
weren’t even sure if she was our student or if she should be
enrolled in the Conemaugh Valley School District.
* * *
[W]hen there is internet trouble at home, I want to clarify that
the students are permitted to go to the Learning Lamp. There
are drop-in hours. . . . They can go and sit with the teacher and
be tutored.
* * *
[W]e were very clear that we provide biweekly progress reports.
Parents can check and see what their kids are doing. There’s a
parental portal. They can see how much work they’ve done.
* * *
So there is a lot that can be done. To plead ignorance that the
work was not being done is not – was inaccurate since we send
out those reports every two weeks. They’re mailed and emailed.
If there’s a violation, they’re mailed, and then they’re also
emailed.
Id. at 45-48.
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Appellant also testified on her own behalf. She asserted that the Child
“went to live with her dad,” but “[t]he Court made her come back home . . .
[t]o me.” N.T., 11/30/16, at 17. When asked if she would “sit over [the
Child’s] shoulder and make sure she was doing her work,” Appellant
answered, “Not all the time.” Id. at 37. When asked again if she would “sit
with [the Child] when she was on the computer making sure she was doing
her work,” Appellant replied, “Not at all times, but I’m sure the teacher don’t
look over their kids.” Id. at 38. When asked a third time if, “on these days
that [the Child] had to be on the computer for five hours, did you make sure
she sat at the computer for five hours,” Appellant responded, “On those
days, I’m not sure.” Id. at 39. Appellant also testified: “It’s not my
responsibility to educate her. . . And, you know what, I didn’t know all of the
stipulations.” Id. at 40.
At the conclusion of the de novo trial, Appellant was found guilty and
sentenced to pay a $300 fine and costs. Order, 12/1/16; N.T., 11/30/16, at
50. However, the trial court suspended the fine, “contingent upon
[Appellant] enrolling [the C]hild in school upon the [C]hild’s release from
placement, and ensuring the child’s regular school attendance.” Trial Ct. Op.
at 1 (citing Order, 12/1/16).
On December 30, 2016, Appellant filed a timely appeal. In an order
dated and timestamped January 12, 2017, the trial court ordered Appellant
to file a concise statement of errors complained of on appeal (“Concise
Statement”) within twenty-one days of the entry of the order on the docket.
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The docket, however, does not reflect when the court served the order on
Appellant. Pa.R.Crim.P. 114(C)(2)(c). Appellant filed her Concise Statement
on February 3, 2017 – twenty-two days after the entry of the order.
Although Appellant’s Concise Statement was apparently untimely by one
day, we decline to find she has waived her issues because the trial court’s
docket fails to show when the trial court served the order on Appellant. Cf.
In re Johnson, 970 A.2d 433, 439 n.7 (Pa. Super. 2009) (declining to find
waiver for failure to file a timely Rule 1925(b) statement because docket did
not reflect service of the Rule 1925(b) order per Pa.R.C.P. 236(b)).
Appellant’s pro se Concise Statement, in its entirety, stated:
This appeal is taken from final Order of a Hearing de novo on
Summary appeal.
[Appellant] submits that the evidence presented in this case was
insufficient to sustain a conviction for the summary offenses,
verdict was against the weight of the evidence.
Specifically, the evidence and record in this matter indicates that
[Appellant]’s child was in Cyber School and was required to be
signed on during certain hours of the school day. The child was
signed in doing the hours required. The Court erred in reaching
a verdict against the weight of the evidence.
Concise Statement, 2/3/17.
In her counseled brief to this Court, Appellant now presents the
following issue for our review:
The Trial Court erred in affirming the Appellant’s summary
conviction of violating 24 P.S. § 13-1333(a)(1) regarding the
Commonwealth’s compulsory school attendance law when the
evidence was insufficient to warrant such a conviction where the
Commonwealth failed to present any evidence that the Appellant
received proper notice of the charges per 24 P.S. § 13-
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1333(a)(1)-(3), nor did the Commonwealth present any
evidence establishing that the Appellant was the custodial
guardian of the [C]hild in question.
Appellant’s Brief at 4.
The Commonwealth contends that Appellant’s Concise Statement
challenged the weight of the evidence, while the question posed in her brief
challenges the sufficiency of the evidence. Commonwealth’s Brief at 10-11.
The Commonwealth thus argues that Appellant’s Statement failed to
preserve any challenge to the sufficiency of the evidence. Id. However, as
Appellant was pro se at the time she filed her Concise Statement, and as the
Statement includes the claim that “the evidence presented in this case was
insufficient to sustain a conviction for the summary offense[],” we find that
Appellant has preserved her sufficiency claim and will address this issue on
the merits.3
Our standard of review when examining a challenge to the sufficiency
of the evidence is as follows:
“Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Giron, 155 A.3d 635,
638 (Pa. Super. 2017) (citation omitted). In assessing
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3 The Commonwealth also wrote in its brief: “The trial court never
addressed the two elements complained of on appeal because it lacked a
proper Rule 1925 statement from [Appellant]. Accordingly, the issues,
which have been asserted for the first time on appeal, are waived.”
Commonwealth’s Brief at 11. To the extent that the Commonwealth is
claiming that Appellant cannot now specifically challenge whether she
“received proper notice of the charges” and whether “evidence establish[ed]
that the Appellant was the custodial guardian” of the Child, Appellant’s Brief
at 4, we find that Appellant’s broadly phrased sufficiency challenge in her
pro se Concise Statement encompasses these two more specific issues.
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Appellant’s sufficiency challenge, we must determine “whether
viewing all the evidence admitted at trial in the light most
favorable to the [Commonwealth], there is sufficient evidence to
enable the fact–finder to find every element of the crime beyond
a reasonable doubt.” Commonwealth v. Williams, 153 A.3d
372, 375 (Pa. Super. 2016) (citation omitted). “The evidence
need not preclude every possibility of innocence and the fact-
finder is free to believe all, part, or none of the evidence
presented.” Commonwealth v. Kennedy, 151 A.3d 1117,
1121 (Pa. Super. 2016) (citation omitted).
Commonwealth v. Hutchison, 164 A.3d 494, 497 (Pa. Super. 2017)
(alterations in original).
At the time that the private summary complaint was filed against
Appellant on December 10, 2015, Section 1333(a) of the School Code, 24
P.S. § 13-1333(a), read as follows:
(1) Every parent, guardian, or person in parental relation,
having control or charge of any child or children of
compulsory school age, who shall fail to comply with the
provisions of this act regarding compulsory attendance, shall on
summary conviction thereof, be sentenced to pay a fine, for the
benefit of the school district in which such offending person
resides, not exceeding three hundred dollars ($300) and to pay
court costs or be sentenced to complete a parenting education
program offered and operated by a local school district, medical
institution or other community resources, and, in default of the
payment of such fine and costs or completion of the parenting
program by the person so offending, shall be sentenced to the
county jail for a period not exceeding five (5) days. . . . Before
any proceedings are instituted against any parent, guardian, or
person in parental relation, for failure to comply with the
provisions of this act, the district superintendent, attendance
officer, or secretary of the board of school directors, shall give
the offending person three (3) days’ written notice of such
violation. If, after such notice has been given, the provisions of
this act regarding compulsory attendance are again violated by
the persons so notified, at any time during the term of
compulsory attendance, such person, so again offending, shall
be liable under the provisions of this section without further
notice.
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(2) The child and every parent, guardian or person in parental
relation must appear at a hearing established by the district
justice. If the parent, guardian or person in parental relation
charged with a summary offense under this subsection shows
that he or she took every reasonable step to insure attendance
of the child at school, he or she shall not be convicted of the
summary offense.
(3) Upon a summary conviction, the district justice may
suspend, in whole or in part, a sentence in which a parent,
guardian or person in parental relation is summoned to pay as
required under this section: Provided, That the child no longer is
habitually truant from school without justification.
Id. (emphasis added)
Appellant contends that “the Commonwealth failed to present any
evidence that the Appellant received proper notice of the charges.”
Appellant’s Brief at 7. In making this argument, Appellant relies on an
amended version of Section 1333 that was enacted on November 3, 2016,
and became effective for the 2017-2018 school year. The amended statute
contains more detailed notice requirements than the version of the statute
that was in place at the time that the private summary complaint was filed.4
To the extent Appellant challenges the failure to comply with those newer
requirements, see Appellant’s Brief at 8, her claim is meritless.
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4 The amended version of the statute requires that the notice to a biological
or adoptive parent: “(1) shall include a description of the consequences that
will follow if the child becomes habitually truant; (2) shall be in the mode
and language of communication preferred by the person in parental relation;
[and] (3) may include the offer of a school attendance improvement
conference[.]” 24 P.S. § 13-1333(a)(1)-(3).
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If Appellant is claiming that she never received any written “notice of
alleged violations . . . required to convict a parent of truancy of their child,”
Appellant’s Brief at 8, such a claim is belied by the record. The
Commonwealth points out that Ms. Miller “testified that notice of attendance
violations are mailed and emailed.” Commonwealth’s Brief at 7 (emphasis
deleted) (citing N.T., 11/30/16, at 48). The record contains uncontradicted
testimony by Ms. Miller that the school “provide[s] biweekly progress
reports,” which are “sen[t] out . . . every two weeks” by “mail[] and email[].
If there’s a violation, they’re mailed, and then they’re also emailed.” N.T.,
11/30/16, at 47-48. The trial court referenced these notifications. See Trial
Ct. Op. at 4. The first component of Appellant’s challenge to the sufficiency
of the evidence therefore has no merit.
Appellant also claims that the Commonwealth failed to establish that
the Appellant was the custodial parent of the Child. Appellant’s Brief at 11.
This assertion also is belied by the record and, indeed, is contradicted by
Appellant’s own testimony that the Child was living with her. N.T.,
11/30/16, at 17. Ms. Miller testified that Appellant was making the
educational decisions for the Child, including the choice “to allow [the Child]
to attend cyber school.” Id. at 8. Appellant presented no evidence that any
other party had custody of the Child during the 2015-2016 school year. See
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generally id. at 15-42. Accordingly, the second component of Appellant’s
challenge to the sufficiency of the evidence likewise merits no relief.5
In summary, we cannot conclude, upon viewing all the evidence
admitted at trial in a light most favorable to the Commonwealth, that there
was insufficient evidence to support the verdict.
Judgment of sentence affirmed.
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5 To the extent Appellant presents a broader challenge to the sufficiency of
the evidence, we reject that contention on the basis of the well-reasoned
opinion by the Honorable David J. Tulowitzki, who stated:
[A]t trial de novo, the Commonwealth offered considerable
testimony from Laura Miller, Dean of Students for the school
district where [the C]hild attended, as to the [C]hild’s failure to
either attend school, or log on and actively participate in cyber
school for the requisite number of hours/day. Ms. Miller also
testified as to the school’s willingness to supply the student’s
computer, internet access, and tutoring/assistance. . . . In
response, [Appellant] admitted that she did not sit with her
daughter at all times[,] N.T.[,] 11/30/16, [at] 37-38[,] and did
not ensure that her daughter logged on for 5 hours each day[.
Id. at 39]. Additionally, [Appellant] stated that “[i]t’s not my
responsibility to educate her . . . ,” and that she “didn’t know all
of the stipulations[.” Id. at 40.]
Given these facts, although we believe that [Appellant] tried to
ensure her daughter’s attendance, she did not try hard enough,
and admitted as much. The record overwhelmingly supports
[Appellant]’s conviction, and is neither weak nor inconclusive.
Trial Ct. Op. at 4.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2017
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