Com. v. Smith, K.

J-A29031-22
2023 PA Super 24COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KARISSA SMITH :
:
Appellant : No. 1185 WDA 2021
Appeal from the Judgment of Sentence Entered June 30, 2021,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-SA-0000237-2020.
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
OPINION BY KUNSELMAN, J.: FILED: FEBRUARY 15, 2023
Karissa Smith appeals from the judgment of sentence imposed after she
failed to appear at a trial de novo on a charge of driving while operating
privilege is suspended or revoked.1 She argues that because the officer who
observed the alleged offense also failed to appear, the trial court was required
to dismiss the charge under Pennsylvania Rule of Criminal Procedure 462(C).
We hold that Rule 462(C) is mandatory when applicable, and the defendant’s
failure to appear does not negate it. Accordingly, we vacate Smith’s conviction
and judgment of sentence, and we dismiss the charge against her.
On August 12, 2019, Ross Township Police Officer Justin Allenbaugh
issued a traffic citation, alleging that Smith “operated a [motor vehicle] with
a suspended operators license” at 10:01 p.m. on August 9, 2019. On January
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175 Pa.C.S.A. § 1543(b)(1)(i). As charged, this is a first offense of driving
under a DUI-related suspension.
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22, 2020, Smith was convicted in absentia before a magisterial district judge,
who imposed a $500.00 fine. The magisterial district judge did not
contemporaneously sentence Smith to the required term of imprisonment.2
On February 12, 2020, Smith timely appealed her conviction to the
Allegheny County Court of Common Pleas for a trial de novo. The scheduled
trial was postponed once on Smith’s motion and four times on the trial court’s
own motion. On June 30, 2021, the trial court heard the case. The assistant
district attorney informed the court that neither Smith nor Officer Allenbaugh
were present. The trial court indicated that neither Smith nor anyone on her
behalf had contacted the court to explain her absence. It therefore ordered
on the record that Smith’s appeal was dismissed and judgment was entered
on the sentence of the issuing authority. The trial court entered a separate
order sentencing Smith to pay a fine of $500.00 and serve a term of 60 days
of imprisonment.
Smith appealed nunc pro tunc to this Court. On preliminary review of
the record, we directed the trial court to clarify whether Smith was entitled to
appointed counsel. The trial court concluded that she was and thus appointed
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2 A defendant convicted under Section 1543(b)(1)(i) “shall . . . be sentenced
to pay a fine of $500 and to undergo imprisonment for a period of not less
than 60 days nor more than 90 days.” A handwritten notation on the citation
issued in the case states “Impose jail after filing appeal [period].” We
interpret this as the magisterial district judge waiting to sentence Smith to a
term of imprisonment until Smith’s time to appeal to the Court of Common
Pleas had ended. See Pa.R.Crim.P. 460(A) (providing 30 days to file a notice
of appeal with the clerk of courts). Because Smith timely appealed, the
magisterial district judge never imposed a jail sentence.
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present counsel. Smith filed a concise statement of errors complained of on
appeal nunc pro tunc, and the trial court entered an opinion.
Smith presents two issues for our review:
I. Based on a patent violation of Pa.R.Crim.P. 462(C), as well
as her federal and state constitutional rights to due process
of law, whether Ms. Smith’s judgment of sentence and
conviction under 75 Pa.C.S.A. § 1543(b)(1)(i) must be
vacated and the case dismissed?
II. Based on a patent violation of Pa.R.Crim.P. 122(A), as well
as her federal and state constitutional rights to counsel and
due process of law, whether Ms. Smith’s judgment of
sentence and conviction under 75 Pa.C.S.A. § 1543(b)(1)(i)
must be vacated and the matter remanded for a new
summary appeal hearing?
Smith’s Brief at 5.
Smith first contends that this Court should vacate her judgment of
sentence and dismiss her case based on Rule 462(C).3 Smith’s Brief at 12–
17. She argues that the Rule is unambiguous and mandatory. Id.
The Commonwealth counters that Rule 462(C) and (D) create an
ambiguity in a case like this, where neither the defendant nor the officer
appears for trial de novo. Commonwealth’s Brief at 6–13. It suggests that
this Court should determine that the rule is not mandatory and remand for a
new trial. Id. (citing Commonwealth v. Baker, 690 A.2d 164, 167 (Pa.
1997) (listing examples of “shall” meaning “may”)).
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3Because we grant relief based on Smith’s rule-based argument, we do not
address her constitutional argument. Commonwealth v. Dunkins, 263 A.3d
247, 253 n.5 (Pa. 2021).
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When this Court interprets the Pennsylvania Rules of Criminal
Procedure, “our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Libengood, 152 A.3d 1057, 1059 (Pa. Super.
2016) (citing Commonwealth v. Hann, 81 A.3d 57, 65 (Pa. 2013)). We
construe the rules “in consonance with the rules of statutory construction” as
set forth in the Statutory Construction Act, 1 Pa.C.S.A. §§ 1501–1991.
Commonwealth v. McClelland, 233 A.3d 717, 733 (Pa. 2020); Pa.R.Crim.P.
101(C). Generally, this requires “that provisions be interpreted in accordance
with the plain meaning of their terms.” Commonwealth v. Pressley, 887
A.2d 220, 223 n.5 (Pa. 2005) (citing 1 Pa.C.S.A. § 1903(a)).
Rule 462, titled “Trial De Novo,” provides in relevant part:
(C) In appeals from summary proceedings arising under the
Vehicle Code or local traffic ordinances, other than parking
offenses, the law enforcement officer who observed the alleged
offense must appear and testify. The failure of a law enforcement
officer to appear and testify shall result in the dismissal of the
charges unless:
(1) the defendant waives the presence of the law enforcement
officer in open court on the record;
(2) the defendant waives the presence of the law enforcement
officer by filing a written waiver signed by the defendant and
defense counsel, or the defendant if proceeding pro se, with
the clerk of courts; or
(3) the trial judge determines that good cause exists for the
law enforcement officer’s unavailability and grants a
continuance.
(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(C), (D).
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We first hold that Rule 462(C) is mandatory when applicable. The
precursor to Rule 462(C) provided in part: “Unless the presence of the law
enforcement officer is waived in open court by the defendant, the failure of
the officer to appear and testify shall result in a dismissal of the charges.”
Commonwealth v. Hightower, 652 A.2d 873, 873 (Pa. Super. 1995)
(quoting former Pa.R.Crim.P. 86(f)). This Court found the words were “clear;
where an officer fails to appear to testify, the charges must be dismissed
unless the defendant waives the officer’s presence in open court.” Id. at 873–
74. After Hightower, the rule was amended to allow the trial court to grant
a continuance upon a showing of good cause for the officer’s unavailability.
Pa.R.Crim.P. 462, Comment. However, the operative phrase “shall result in a
dismissal of the charges” has not changed. Nor do we change our reading of
this language as mandatory in cases under Rule 462(C).
We next hold that the defendant’s failure to appear does not negate Rule
462(C), notwithstanding Rule 462(D). By its plain language, Rule 462(C) does
not depend on the defendant’s presence. While Rule 462(C) is mandatory,
Rule 462(D), which permits the trial court to dismiss a summary appeal upon
the defendant’s failure to appear, is not. When the officer who observed an
alleged motor vehicle offense fails to appear at the trial de novo, Rule 462(C)
requires the trial court to dismiss the charges unless one of the listed
exceptions applies. See Hightower, 652 A.2d at 873. Because there is no
additional exception for a case like this, where the defendant also fails to
appear, we decline to create one.
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In reaching this conclusion, we find no ambiguity in Rule 462. However,
rules of statutory construction would resolve any ambiguity in favor of our
holding that Rule 462(C) is mandatory, even when the defendant fails to
appear as contemplated in Rule 462(D). While Rule 462(D) applies to all
summary appeals, Rule 462(C) applies only in certain Vehicle Code and local
traffic ordinance cases where a law enforcement officer observed the alleged
offense. See Commonwealth v. Dougherty, 679 A.2d 779, 781–82 (Pa.
Super. 1996). Because its reach is more specific, Rule 462(C) would prevail
in a conflict over Rule 462(D). See Commonwealth v. Callen, 198 A.3d
1149, 1159 n.7 (Pa. Super. 2018) (citing 1 Pa.C.S.A. § 1933). Furthermore,
Rule 462 is subject to the rule of lenity, codified at 1 Pa.C.S.A. § 1928(b)(a),
which requires ambiguity in a penal statute to be interpreted in a light most
favorable to the accused. Commonwealth v. Santiago, 270 A.3d 512, 516
(Pa. Super. 2022) (quoting Commonwealth v. Davis, 242 A.3d 923, 931
(Pa. Super. 2020)). Finally, our interpretation is consistent with the
Commonwealth’s burden of proof at the trial de novo; Rule 462(C) sets one
instance where the Commonwealth cannot meet its burden. See
Commonwealth v. Beam, 923 A.2d 414, 417 (Pa. Super. 2007) (explaining
that at a trial de novo under Rule 462(A), the trial court must redecide the
case).
Here, the trial court erred in failing to dismiss Smith’s Section 1543
charge upon Officer Allenbaugh’s failure to appear. There is no dispute that
Smith’s case was an appeal from a summary proceeding arising under the
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Vehicle Code, and that Officer Allenbaugh had observed the alleged offense to
issue the citation. Therefore, Rule 462(C) applied to Smith’s case. Because
Smith was not present, she could not waive the officer’s presence in open
court on the record. Nor did she sign a written waiver. Finally, the trial court
did not determine that good cause existed for the officer’s unavailability and
thus did not grant a continuance. As none of the exceptions listed in Rule
462(C) applied, the trial court was required to dismiss the charge against
Smith, and it erred in not doing so.4, 5 Therefore, we will vacate Smith’s
conviction and judgment of sentence and dismiss the charge against her.
Conviction and judgment of sentence vacated. Charge dismissed.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2023
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4Further, as the magisterial district judge had not imposed the mandatory jail
sentence before Smith appealed to the Court of Common Pleas, the trial court
could not enter judgment “on the judgment of the issuing authority” without
adding the additional term of imprisonment. Pa.R.Crim.P. 462(D).
5 Because the parties have not briefed the issue, we offer no opinion whether
the Commonwealth can re-file its charge.
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