Com. v. Paul, M.

J-A19026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL J. PAUL
Appellant No. 3460 EDA 2015
Appeal from the Judgment of Sentence October 9, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-SA-0000532-2015
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED JANUARY 03, 2017
Michael J. Paul appeals, pro se, from the judgment of sentence entered
on October 9, 2015, by the Bucks County Court of Common Pleas,
dismissing his summary appeal after he failed to appear before the trial
court. That same day, the court convicted Paul in absentia of operating a
vehicle with a suspended registration.1 On appeal, Paul claims the court
abused its discretion in dismissing his summary appeal because he was
never notified of the date for the trial de novo. Based on the following, we
vacate and remand for further proceedings.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 1371(a). The court ordered Paul to pay costs and fines as his
sentence.
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The trial court set forth the factual and procedural background as
follows:
On May 31, 2015, Corporal Michael Schum of the
Bensalem Township, Bucks County, Police Department issued
Citation No. C2413511-2 to Paul for operating a vehicle with a
suspended registration, pursuant to 75 Pa.C.S. § 1371(a). On
June 15, 2015, Paul entered a plea of not guilty. At the
subsequent District Court hearing held on July 13, 2015, which
Paul failed to attend, Paul was found guilty by Magisterial District
Justice Joseph P. Falcone of that violation.
On July 24, 2015, Paul filed a Notice of Appeal from
Summary Criminal Conviction. A hearing for summary appeals
was scheduled for October 9, 2015, and the docket reflects that
on September 2, 2015, a Notice of that hearing was sent to Paul
at his address of record, which was 4407 Oakmont Street,
Philadelphia, PA 19136.
At the scheduled hearing on October 9, 2015, Paul was
again not present, although Corporal Schum was, and
consequently this Court found Paul guilty in absentia, dismissed
his appeal and sentenced him to pay the costs and fines.
Trial Court Opinion, 2/19/2016, at 1-2. This pro se appeal followed.2
In his sole issue on appeal, Paul contends the court abused its
discretion in dismissing his summary appeal. He states he “was never
notified of the trial de novo date and, had he been notified, was prepared to
show that, at the time the citation was issued, his vehicle was fully insured
and his registration should not have been suspended.” Paul’s Brief at
____________________________________________
2
On January 26, 2016, the trial court ordered Paul to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Paul filed a concise statement on February 10, 2016. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on February 19, 2016.
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unnumbered 2. Relying on Commonwealth v. Dixon, 66 A.3d 794 (Pa.
Super. 2013), he states a trial court must ascertain whether an absentee
defendant, like himself, had adequate cause for his absence before a
summary appeal may be dismissed. Id. Moreover, he states:
At a re-trial of this matter Paul would be able to
demonstrate that he received no notice of the October 9, 2015
trial date and, had he received notice, would have appeared and
been able to demonstrate that his license should not have been
suspended with testimony and documentary evidence.
Id. at unnumbered 3.3
Preliminarily, we observe that Paul’s pro se brief fails to comply with
the applicable Pennsylvania Rules of Appellate Procedure, insofar as it is
lacking with respect to Pa.R.A.P. 2111(a)(1) (statement of jurisdiction),
(a)(2) (order or other determination in question), (a)(3) (statement of both
the scope and the standard of review), (a)(4) (statement of the questions
involved), (a)(6) (summary of argument), (a)(10) (the opinions and
pleadings specified in subdivisions (b) and (c) of the rule), and (a)(11) (a
____________________________________________
3
Paul alleges he had been unaware that his registration had been
suspended until he received the vehicle citation. He avers he then contacted
the Pennsylvania Department of Transportation (“PennDOT”) and “learned
that [PennDOT] had suspended his registration because his old insurance
carrier (Geico) reported that his insurance was terminated on February 8,
2015 (which Paul requested) but that his new carrier (Amica) had not
reported his purchasing of new insurance which began on February 9, 2015.”
Paul’s Brief at unnumbered 1. Paul further states, “On the same day the
citation was issued (and the first day that Paul had notice of the registration
suspension because of the inadvertent 23 hour gap in coverage) Paul filed
an affidavit with [PennDOT] averring that his vehicle had not been in use
during the insurance gap.” Id. at unnumbered 1-2.
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copy of the statement of errors complained of on appeal). Paul also failed to
attach a copy of the trial court’s Rule 1925(a) opinion as required pursuant
to Rule 2111(b).
[A]lthough this Court is willing to construe liberally materials
filed by a pro se litigant, pro se status generally confers no
special benefit upon an appellant. Accordingly, a pro se litigant
must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court. This Court may quash or
dismiss an appeal if an appellant fails to conform with the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. 2101.
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal
denied, 879 A.2d 782 (Pa. 2005) (some citations omitted). 4 While the
defects in Paul’s brief are substantial, they do not impede a meaningful
review of the matter, and therefore, we will address his argument.
The standard of review regarding summary conviction appeals is well-
settled:
Our standard of review from an appeal of a summary conviction
heard de novo by the trial court is limited to a determination of
whether an error of law has been committed and whether the
findings of fact are supported by competent evidence. The
adjudication of the trial court will not be disturbed on appeal
absent a manifest abuse of discretion.
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4
“[A]ny layperson choosing to represent himself [or herself] in a legal
proceeding must, to some reasonable extent, assume the risk that his [or
her] lack of expertise and legal training will prove his [or her] undoing.”
Commonwealth v. Gray, 608 A.2d 534, 550 (Pa. Super. 1992), quoting
Vann v. Commonwealth Unemployment Compensation Bd. of Review,
494 A.2d 1081, 1086 (Pa. 1985). As such, we cannot serve as Paul’s
counsel and litigate his claims for him.
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Commonwealth v. Marizzaldi, 814 A.2d 249, 251 (Pa. Super. 2002)
(internal citations and quotation omitted).
Pennsylvania Rule of Criminal Procedure 462 governs summary
appeals, which states, in relevant part:
(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(A), (D). Moreover, the comment to Rule 462 provides, in
pertinent part:
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.
Pa.R.Crim.P. 462, comment.
We also note:
There shall be no post-sentence motion in summary case
appeals following a trial de novo in the court of common pleas.
The imposition of sentence immediately following a
determination of guilt at the conclusion of the trial de novo shall
constitute a final order for purposes of appeal.
Pa.R.Crim.P. 720(D).
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In Marizzaldi, supra, the defendant was found guilty in absentia of
several summary offenses after he failed to appear at a de novo hearing.
On appeal, the defendant attached an affidavit to his brief, asserting:
[H]e arrived for his summary appeal hearing approximately ten
minutes late and learned that his appeal had already been
dismissed. He explain[ed] that he was delayed because he
missed the bus and that he waited for the next available one,
which arrived in the City of Pittsburgh a few minutes after his
hearing was scheduled to begin. He also state[ed] that he was
not given an opportunity to explain to the trial court the reason
for his tardiness.
Marizzaldi, 814 A.2d at 251. A panel of this Court concluded the trial court
made “no mention that a determination of the cause or duration of [the
defendant]’s absence was made.” Id. at 252. Consequently, the panel
stated it was compelled to find that “the record does not establish an effort
on the part of the trial court to make any such inquiry[.]” Id. Moreover,
the court noted, “Th[e] failure to do so is contrary to the clear intent of the
Rules and requires a remand for a trial de novo.” Id.More recently, in Dixon, supra, another panel of this Court found that
Marizzaldi requires the following to determine whether a remand for a new
summary appeal trial is necessary:
(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.
Dixon, 66 A.3d at 797.
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In Dixon, the defendant explained in an affidavit that his failure to
appear at the summary appeal hearing was involuntary because he initially
went to the wrong location and then, after being given numerous erroneous
directions, he went home and missed the trial. On appeal, the panel noted a
conundrum with respect to summary appeal cases:
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
Pa.R.Crim.P. 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. Consequently, this Court often must
address the necessary cause inquiry arising from Pa.R.Crim.P.
462 in the first instance.
Dixon, 66 A.3d at 796-797. The panel then dismissed the matter, finding:
Nothing in [the defendant]’s affidavit indicates that the
circumstances causing his absence were beyond his control.
[The defendant] was aware of the time, date, and location of the
hearing. [The defendant] 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 defendant] went home
without making any attempt to contact the court. [The
defendant]’s failure to locate the correct room for his hearing
does not render his absence involuntary.
Id. at 798.
Turning to the present matter, as indicated above, Paul asserts his
failure to appear at the summary appeal proceeding was the result of not
receiving notification of the hearing.
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In dismissing the summary appeal, the trial court opined:
Here, this Court observed that proper notice had been sent
to Paul, as reflected by the docket entry indicating that the
hearing for his summary appeal was scheduled for October 9,
2015, at 9:00 AM, and that notice of that hearing was mailed to
him on September 2, 2015, to his address of record at 4407
Oakmont Street, Philadelphia, PA 19136. We further observed
that the docket did not contain any subsequent entry reflecting
the return of that notice, and we concluded that this was
sufficient to trigger the presumption of receipt of notice by Paul.
While we are cognizant that post-trial motions are not
permitted in summary appeals pursuant to Pa.R.Crim.P. 720(D),
we nevertheless observed that in his Notice of Appeal Paul did
not attempt to provide this Court with any valid reason for his
failure to appear at the hearing or explain in an affidavit why his
absence was involuntary and should have been excused. Paul
merely asserted that he did not receive that notice, which we
determined was insufficient in accordance with case law to
overcome the presumption of receipt.
For example, in Breza v. Don Farr Moving & Storage
Co., 828 A.2d 1131 (Pa. Super. 2003), the Superior Court of
Pennsylvania affirmed a judgment entered against an appellant
in absentia after the trial court had determined that the
appellant “failed to provide a satisfactory excuse for its non-
appearance.” The Superior Court observed that
[i]n making this determination, the trial court applied the
mailbox rule. This rule provides that proof of a mailing
raises a rebuttable presumption that the mailed item was
received. Samaras v. Hartwick, 698 A.2d 71, 73 (Pa.
Super. 1997). Furthermore, the presumption under the
mailbox rule is not nullified solely by testimony denying
receipt of the item mailed. Id.; see also Donegal
Mutual Insurance Company v. Insurance
Department, 719 A.2d 825 (Pa. Cmwlth. 1998) (finding
that merely asserting that the letter was not received,
without corroboration, is insufficient to overcome the
presumption of receipt).
Breza, 828 A.2d at 1135. The Court concluded that
“[Appellant’s] mere assertion that notice was not received,
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without corroboration, is insufficient to overcome the
presumption. Samaras; Donegal Mutual, supra. Therefore,
we agree with the trial court that [Appellant] failed to provide a
satisfactory excuse for its failure to appear.” Id.
[Paul] relies upon Commonwealth v. Dixon, 66 A.3d 794(Pa. Super. 2013), and Commonwealth v. Mesler, 732 A.2d
21 (Pa. Cmwlth. 1999), for the proposition that a trial court’s
failure to determine if the defendant was absent from a hearing
without cause before dismissing a summary case constitutes
reversible error. Those cases, and companion cases such as
Commonwealth v. Parks, 768 A.2d 1168 (Pa. Super. 2001),
Commonwealth v. Marizzaldi, 814 A.2d 249 (Pa. Super.
2002), and Symanski v. Dotey, 52 A.3d 289 (Pa. Super. 2012),
are distinguishable from the instant matter because either there
was insufficient evidence to establish the presumption that
notice was sent to, and received by, the appellant; the trial court
failed to determine if a valid reason existed for the appellant’s
absence from the summary appeals hearing; or a reasonable
explanation for the appellant’s involuntary absence was
subsequently suggested or presented.
Here, [Paul] simply asserted that he did not receive notice
of the scheduled hearing. We observed, however, that he also
failed to attend the initial summary hearing at the District Court,
and the record was devoid of any suggestion for that absence.
We also observed upon further review of the record that [Paul]’s
Notice of Appeal and Statement of Matters contained an address
under his signature that is markedly different from the address
of record to which his Notice of hearing was sent.1
____________________
1
[Paul] signed his Notice of Appeal and Concise
Statement of Matters with the address “10838 Harrow
Road, Philadelphia, PA 19154,” whereas the address of
record to which the Notice was sent is “4407 Oakmont
Street, Philadelphia, PA 19136.”
____________________
[Paul] is statutorily required, pursuant to 75 Pa.C.S.A. §
1515, to notify the Pennsylvania Department of Transportation
of a change in his address within fifteen days of that change.
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We can only presume in the instant matter that Paul failed to
provide such notice since the address of record is different from
the one he included with his signature on his Notice of Appeal
and Concise Statement, and it is clear that under such
circumstances he is therefore precluded from asserting a defense
of insufficient notice. (See e.g., Commonwealth v.
McDonough, 621 A.2d 569, 572 (Pa. 1993) (“a defendant’s
failure to notify PennDot of a change of address pursuant to 75
Pa.C.S.A. § 1515 precludes his or her reliance on the defense of
insufficient notice.”))[.]
…
This Court was unable to discern any valid reason for
Paul’s failure to attend his summary appeal hearing scheduled
for October 9, 2015. We determined that official notice was sent
to Paul’s address of record and that no undeliverable return
notice was received, which therefore established the
presumption of receipt by Paul. We also observed that Paul is
currently utilizing an address that is different from that of
record, and as a consequence, he would be precluded from
asserting a defense of insufficient notice.
Trial Court Opinion, 2/19/2016, at 4-7 (one footnote omitted).
We are compelled to disagree for several reasons. First, we note that
similar to Marizzaldi, the testimony from the de novo trial fails to
demonstrate any court inquiry into the cause of Paul’s absence. At the
October 9, 2015, summary appeal hearing, the Commonwealth pointed out
that Paul was not present. N.T., 10/9/2015, at 2. The court then stated the
following: “Michael Paul. Michael Paul. I see no response. We find the
defendant guilty in his absence.” Id.
Second, we find nothing in the certified record reveals that notice of
the summary appeal hearing was sent to Paul. Contrary to the court’s
statement, the docket does not explicitly reflect that notice was sent to Paul.
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It merely states: “Hearing Notice – 09/02/2015 – Court of Common Pleas –
Bucks County.” Summary Appeal Docket, Docket No. CP-09-SA-0000532-
2015, at 2. Likewise, an actual copy of the notice sent to Paul was not
included in the certified record.
Third, to the extent the trial court finds that pursuant to the “mailbox
rule,” it is presumed that Paul received notice of the de novo hearing and his
mere denial is an insufficient rebuttal, we decline to agree. Pursuant to the
mailbox rule,
it is axiomatic that for the presumption of the receipt of a letter
to be triggered, as a threshold evidentiary requirement, the
party who is seeking the benefit of the presumption must adduce
evidentiary proof that the letter was signed in the usual course
of business and placed in the regular place of mailing …. “A
presumption that a letter was received cannot be based on a
presumption that the letter was mailed.” Commonwealth,
DOT, Bureau of Driver Licensing v. Whitney, 133 Pa.
Commw. 437, 575 A.2d 978, 979 (Pa. Cmwlth 1990). “A
presumption cannot be based on a presumption.” Id.; See also
Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753, 756 (Pa. 1963)
(where controverted factual issue exists as to whether letter has
been mailed, there is no presumption applicable to this
determination).
Commonwealth v. Thomas, 814 A.2d 754, 758-759 (Pa. Super. 2002).
As such, the Commonwealth has the burden of proving that the mailbox rule
is applicable.
Turning to the present matter, the record reveals the Commonwealth
presented no evidence at the time of the dismissal of the summary appeal
that it sent notice of the hearing to Paul. See N.T., 10/9/2015, at 2.
Consequently, the Commonwealth has not met its burden in establishing
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Paul received proper notice of the hearing. See Thomas, 814 A.2d at 760(concluding that “producing an untimestamped copy of a hearing notice
contained in the Clerk of Court’s file, and offering generic testimony as to
the standard mailing practices for summary appeal hearing notices” in the
county was insufficient).
Additionally, we find the court’s reliance on Breza, supra, is
misplaced. In Breza, the issue was whether the appellant-defendant
“received the notice of appeal and complaint, which listed the arbitration
hearing date and included notice that if one or both parties failed to appear,
the matter would be heard before a judge on the same date and time.”
Breza, 828 A.2d at 1136. The applicable local, civil county rule required
“the Prothonotary shall mail by first class a copy of the notice of appeal and
the complaint and that any return be noted on the court’s docket.” Id.(emphasis added); see also Pa.R.C.P.D.J. No. 1005. On appeal, a panel of
this Court concluded:
[T]he docket reflects that the Prothonotary served [the
appellant-defendant] the notice of appeal and a copy of the
complaint by mail on November 27, 2000. There was no entry
made on the docket that the notice or the complaint was
returned. We find the entry on the docket was sufficient to
establish these items had been mailed. As such, the proof of
mailing raised the rebuttable presumption that the mailed item
was received. Again, [the appellant-defendant]’s mere denial of
receipt was not sufficient to overcome the presumption.
Breza, 828 A.2d at 1136.
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Unlike Breza, our review of the present matter reveals no local,
criminal county rule that requires a return notice of appeal be docketed,
and neither the trial court nor the Commonwealth point to such a rule or
requirement. Moreover, as indicated above, the docket does not reflect that
the notice of the de novo hearing was mailed to Paul. Accordingly, we find
Breza is not controlling here.
Lastly, the Commonwealth points out Paul did not attach an affidavit
detailing the reason he failed to appear at the summary appeal hearing but
instead, he “baldly asserts that he did not receive notice.” Commonwealth’s
Brief at 8. Indeed, in both Marizzaldi and Dixon, the defendants provided
a detailed explanation of the reasons for their absences.
Nevertheless, Paul’s averment is substantially similar to the
defendant’s allegation in Commonwealth v. Panto, 913 A.2d 292 (Pa.
Super. 2006). In Panto, which followed Marizzaldi, the defendant was
cited for a summary offense, convicted by a district magistrate, and failed to
appear at a requested trial de novo. On appeal, the defendant simply
alleged that she did not receive notice of the hearing date in her concise
statement in her appellate brief. Panto, 913 A.2d at 293. Without
discussing the lack of an affidavit, a panel of this Court vacated the
judgment of sentence and remanded the case for a new summary appeal
hearing. As such, in the matter at issue, we find the absence of an affidavit
of no consequence based on the specific facts of this case.
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Accordingly, in the interests of justice, we conclude it is not clear from
the record that Paul received notice of his summary appeal hearing based on
the fact that the trial court dismissed his summary appeal without
considering whether he had cause to justify his absence, and because the
presumption that he received notice was improperly based on a presumption
that notice was prepared and then mailed. See Dixon, supra; Thomas,
supra. Moreover, Paul’s claim that he did not receive notice of the
summary appeal hearing presents a prima facie demonstration that there
was a reason for his absence and that it was involuntary. See Marizzaldi,
supra; Dixon, supra. Therefore, we vacate the judgment of sentence and
remand for a new summary appeal hearing.5
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2017
____________________________________________
5
We highly recommend Paul: (1) provide the trial court with his current
address; (2) notify PennDOT pursuant to Section 1515; and (3) obtain legal
counsel to assist him in the summary appeal proceeding.
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