Com. v. Greenberg, J.

J-A02035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON HARLEY GREENBERG :
:
Appellant : No. 1121 WDA 2019
Appeal from the Judgment of Sentence Entered June 25, 2019
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-SA-0000070-2018
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 30, 2020
Appellant, Jason Harley Greenberg, appeals pro se from the judgment
of sentence entered on June 25, 2019, in the Mercer County Court of Common
Pleas. We affirm.
The record reveals that on July 14, 2018, Appellant was cited for three
violations of the Motor Vehicle Code.1 Specifically, Appellant was charged with
driving an unregistered vehicle, improper tires, and investigation by police
officers.2 Traffic Citations, 7/14/18. Appellant was adjudged guilty of all three
offenses before a magisterial district judge on August 16, 2018. On
September 12, 2018, the magisterial district judge sentenced Appellant to
____________________________________________
1 75 Pa.C.S. §§ 101-9805.
2 75 Pa.C.S. §§ 1301(a), 4525(a), and 6308(a), respectively.
J-A02035-20
fines, costs, and restitution as follows: $117.50, for driving an unregistered
vehicle; $102.00, for improper tires; and $102.00, for investigation by police
officers. Order, 9/12/18.
On October 22, 2018, Appellant filed a pro se document entitled simply
“nunc pro tunc.” In this filing, Appellant acknowledged that the appeal period
in which to seek a de novo trial had expired as more than thirty days had
passed since the magisterial district judge’s verdict.3 Nunc Pro Tunc Motion,
10/22/18, at unnumbered 1. Nevertheless, Appellant asked for an extension
of time in which to file an appeal before the Mercer County Court of Common
Pleas. Id. The trial court treated this filing as a petition for allowance to file
a nunc pro tunc appeal for a trial de novo and scheduled a hearing on the
motion for November 9, 2018. Order, 10/23/18. The Commonwealth failed
to appear at the November 9, 2018 hearing, and the trial court granted
Appellant’s motion and permitted the nunc pro tunc appeal for a trial de novo.
Order, 11/9/18.4
____________________________________________
3 See Pa.R.Crim.P. 460 (providing that when an appeal is authorized by law
in a summary proceeding, the appeal shall be perfected by filing a notice of
appeal within 30 days after the entry of the final order).
4 We recognize that generally, the timeliness of an appeal, “whether it is an
appeal to an appellate court or a de novo appeal in common pleas court, is a
jurisdictional question.” Lee v. Guerin, 735 A.2d 1280, 1281 (Pa. Super.
1999). However, when a party motions the court of common pleas for a
summary appeal nunc pro tunc, the decision is left to the discretion of the trial
court. Commonwealth v. Jarema, 590 A.2d 310, 312 (Pa. Super. 1991).
As noted, the Commonwealth failed to appear at the November 9, 2018
-2-
J-A02035-20
On June 25, 2019, at the conclusion of Appellant’s trial de novo, the trial
court found Appellant guilty of all three violations of the Motor Vehicle Code.
Verdict and Sentencing Order, 6/25/19, at unnumbered 1-2. The trial court
sentenced Appellant as follows:
1. Investigation by Police Officers by failing to provide required
documents (license, registration, and insurance), 75 Pa.C.S.A. §
6308 (a), a summary offense, for which the Appellant was found
guilty and sentenced to pay a fine of $25.00 plus court costs;
2. Tire Equipment and Traction Surface by operating a vehicle with
rear tires extending beyond the flares attached to the rear
fenders, 75 Pa.C.S.A. § 4525 (a), a summary offense for which
the Appellant was found guilty and sentenced to pay a fine of
$25.00 plus court costs;
3. Driving an Unregistered Vehicle by operating a vehicle with an
expired registration, 75 Pa.C.S.A. § 1301 (a), a summary offense
for which the Appellant was found guilty and sentenced to pay the
court costs only.1
1 Between the time of the violation and the summary
hearing before the magisterial district judge, the
Appellant had renewed the registration for his vehicle
and was therefore only sentenced to pay the court
costs, the $25.00 fine being waived.
Trial Court Opinion, 9/19/19, at 1-2 (emphasis in original).
On July 2, 2019, Appellant filed a pro se notice of appeal. The trial court
did not order Appellant to file a statement of errors complained of on appeal
____________________________________________
hearing on Appellant’s motion for a trial de novo nunc pro tunc, and at no
point did the Commonwealth contest or object to the trial court’s order
granting Appellant’s motion. Furthermore, this issue was not raised by the
Commonwealth nor discussed by the trial court. In this instance, we decline
to engage in fact finding to determine whether the trial court abused its
discretion in granting Appellant’s motion for a trial de novo.
-3-
J-A02035-20
pursuant to Pa.R.A.P. 1925(b), relying instead on the issues Appellant raised
in his thirty-two-page notice of appeal. Trial Court Opinion, 9/19/19, at 2.
On appeal, Appellant presents the following issues:
1. If a person is being tried in a criminal venue and being
subjected to substantial loss of property as a result, is it an error
of law to convict such person without benefit of a trial by jury?
2. If it is the purpose of the courts “to protect against any
encroachment of constitutionally secured liberties” as is stated in
Boyd v. U.S. 116 U.S. 616, is it an error of law to convict a person
for practicing those very liberties?
3. If the Commonwealth itself admits that there is a difference
between travelling, which is a right, and driving, which is a
privilege, is it an error of law to convict without proof that
[Appellant] was engaged in driving?
Appellant’s Brief at 4.
Although Appellant’s pro se brief is difficult to follow, the crux of his
argument seems to be his belief that he was entitled to a jury trial and that
his constitutional right to travel was violated. After review, we conclude that
Appellant’s claims are meritless. Stated simply, Appellant was not exposed to
incarceration; therefore, he was not entitled to a jury trial. Commonwealth
v. Smith, 868 A.2d 1253, 1257 (Pa. Super. 2005). Moreover, driving and
traveling are not synonymous. Generally, citizens of the United States
possess a constitutional right to travel. Saenz v. Roe, 526 U.S. 489 (1999).
In Saenz, the Supreme Court of the United States explained that the right to
travel:
embraces at least three different components. It protects the right
of a citizen of one State to enter and to leave another State, the
-4-
J-A02035-20
right to be treated as a welcome visitor rather than an unfriendly
alien when temporarily present in the second State, and, for those
travelers who elect to become permanent residents, the right to
be treated like other citizens of that State.
Id. at 501. However, it is well settled that driving is a privilege and not a
right. Commonwealth v. Bell, 211 A.3d 761, 770 (Pa. 2019).
We have reviewed the briefs of the parties, the certified record before
us on appeal, and the trial court’s opinion filed on September 19, 2019. We
conclude that the trial court accurately addressed Appellant’s issues and
explained why they lack merit. Accordingly, we affirm the judgment of
sentence on the basis of the trial court’s opinion and adopt its analysis as our
own.5
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2020
____________________________________________
5 The parties are directed to attach a copy of that opinion in the event of
further proceedings in this matter.
-5-
Circulated 03/05/2020 12:41 PM
fiLED 1:.''1 •�.-••-Rc-n
.:., i:.n COUNTY
2019 SEP i 9 Ml 9: 20
} .. ,. .... ,, r·-,,
f \ / J.. I «..j � L, • �.1 r .t - •
IN THE COURT OF cot�dk�i�i��:iERCER COUNTYt PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
V. 70 SA2018
JASON HARLEY GREENBERG,
Defendant/Appellant
OPINION PURSUANT TO PA.R.A.P. 1925(a)
This case comes before the Pennsylvania Superior Court on the Defendant I
Appellant's ("Appellant") prose Notice of Appeal filed on July 24, 2019 seeking a
review of this Court's sentences imposed on June 25, 2019.
History of the Case
Appellant was cited for three summary traffic violations on July 14, 2018 in
connection with his operating his pick-up truck on North Main Street in Sandy Lake
Borough, Mercer County, Pennsylvania. On September 12, 2018, the magisterial district
judge held a summary trial following which the Appellant was convicted and sentenced
on all three citations.
Appellant subsequently appealed nunc pro tune to the Court of Common Pleas of
Mercer County for a trial de nova which was granted. On June 25, 2019, a trial de novo
was held on all three citations before this Court, to wit:
1. Investigation by Police Officers by failing to provide required documents
(license, registration, and insurance), 75 Pa.C.S.A. § 6308 (a), a summary
offense, for which the Appellant was found guilty and sentenced to pay a fine
of $25.00 plus court costs;
2. Tire Equipment and Traction Surface by operating a vehicle with rear tires
extending beyond the flares attached to the rear fenders, 75 Pa.C.S.A. §
4525 (a), a summary offense for which the Appellant was found guilty and
sentenced to pay a fine of $25.00 plus court costs;
3. Driving an Unregistered Vehicle by operating a vehicle with an expired
registration, 75 Pa.C.S.A. § 1301 (a), a summary offense for which the
Appellant was found guilty and sentenced to pay the court costs only.1
On July 24, 2019, Appellant filed a thirty-plus page Notice of Appeal to the
Superior Court. Although more akin to a legal brief, the Notice of Appeal does include
what purports to be a Statement of Errors Complained of on Appeal, and for that reason
this Court did not order the filing of a Pa.R.A.P. 1925(b) statement.
Issues Presented
In his Statement of Errors Complained of on Appeal, Appellant does not
challenge the weight or sufficiency of the evidence leading to his convictions. Rather,
Appellant raises three constitutional questions which may be paraphrased as follows:
1. Was it an error of law for Appellant to be convicted following a bench trial,
rather than affording Appellant a trial by jury?
2. Are the Vehicle Code provisions which Appellant violated unconstitutional, at
least as applied to Appellant, because they improperly infringe upon his right
to travel?
3. Did this Court err by misunderstanding or misapplying the distinction between
Appellant's right to travel and a privilege to drive a vehicle?
IBetween the time of the violation and the summary hearing before the magisterial district judge, the
Appellant had renewed the registration for his vehicle and was therefore only sentenced to pay the court
costs, the $25.00 fine being waived.
2
Discussion of Law
1. Was it an error of law for Appellant to be convicted following a bench
trial, rather than affording Appellant a trial by jury?
Appellant suggests that he has a constitutionally protected right to be tried before a
jury for summary offenses under the Vehicle Code. Section 6 of Article I of the
Pennsylvania Constitution provides, "Trial by jury shall be as heretofore, and the right
thereof remain inviolate .... "Pa.Const. art. I,§ 6 (emphasis added). Further, Section 9 of
Article I of the Pennsylvania Constitution provides, in material part, "In all criminal
prosecutions the accused hath a right to ... a speedy public trial by an impartial jury ... "
Pa. Const. art. I,§ 9 (emphasis added). Further, the Sixth Amendment to the United States
Constitution provides, "In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury ... " U.S. Const. amend VI (emphasis added).
In interpreting these two Pennsylvania Constitutional provisions, the Superior
Court determined that the phrase "shall be as heretofore," meant that "The constitutional
provisions entitling a defendant to a jury trial (art. I, secs. 6 & 9) do not apply to
summary convictions .... The right to trial by jury preserved by the [Pennsylvania]
Constitution is the right as it existed when the provision was first written into our
Constitution." City of Scranton v. Hollenberg, 152 Pa.Super. 138, 142-43, 31 A.2d 437,
440 (1943). After exhaustively researching this issue, this Court could find no indication
that there was a vehicle code in existence in 1776 when the Pennsylvania Constitution
was adopted-perhaps because there were no motor vehicles in existence at that time.
3
Regarding the applicability of the Sixth Amendment to the l nited States
Constitution:
"The test is clear. The decisions of the Supreme Court of the United States 'have
established a fixed dividing line between petty and serious offenses: those
crimes carrying [a sentence of] more than six months are serious [crimes] and
those carrying [a sentence of six months or] less are petty crimes.' "3
Commonwealth v. Mayberry, 459 Pa. 91, 98, 327 A.2d 86, 89 (1974) (quoting
Codispoti v, Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 41 L.Ed.2d 912(l 974 )). It is well-settled that a legislature's determination that an offense
carries a maximum prison term of six months or less indicates its view that an
offense is "petty." Blanton v. North Las Vegas, 489 U.S. 538, 543, 109 S.Ct.
1289, 103 L.Ed.2d 550 (1989). As further explained in Blanton,
It has long been settled that there is a category of petty crimes or
offenses which is not subject to the Sixth Amendment jury trial
provision. In determining whether a particular offense should be
categorized as petty, our early decisions focused on the nature of the
offense and on whether it was triable by a jury at common law. In recent
years, however, we have sought more objective indications of the
seriousness with which society regards the offense. [W]e have found the
most relevant such criteria in the severity of the maximum authorized
penalty. In fixing the maximum penalty for a crime, a legislature
include[s] within the definition of the crime itself a judgment about the
seriousness of the offense. The judiciary should not substitute its
judgment as to seriousness for that of a legislature, which is far better
equipped to perform the task, and [is] likewise more responsive to
changes in attitude and more amenable to the recognition and correction
of their misperceptions in this respect.
Id. at 541-542, 109 S.Ct. 1289 (internal quotation marks and citations omitted).
As set forth above, we determine whether an offense is serious by looking to
the judgment of the legislature, primarily as expressed in the maximum
authorized term of imprisonment. Here, by setting the maximum authorized
prison term at six months, the Legislature categorized the violation of §
3802(a)(l) [driving under the influence of alcohol] as petty for purposes of a
defendant's jury trial rights.
Commonwealth \'. Kerry, 2006 PA Super 233, 906 A.2d 1237, 1239 (Pa. Super. Ct. 2006).
This Court notes that none of the provisions of which the Appellant was convicted
carry any penalty of imprisonment, thus substantiating the intention of the Pennsylvania
Legislature that the provisions of the Vehicle Code which the AppelJant was accused of
violating are considered to be "petty offenses" for which he is not entitled to a trial by a
Jury.
Consistent with this position, the Pennsylvania Supreme Court adopted Rule 462
of the Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 462, which provides:
(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. (emphasis added).
!I
lIli In conclusion, this Court could find no law supporting Appellant's claim that he is
I'
I entitled to a jury trial for violations of the provisions of the Vehicle Code of which he
was convicted.
2. Are the Vehicle Code provisions which Appellant violated
unconstitutional, at least as applied to Appellant, because they
I. improperly infringe upon has right to travel?
1;
11
3. Did this court err by misunderstanding or misapplying the distinctien
between Appellant's right to travel and a privilege to drive a vehicle?
Issues 2 and 3 as raised by Appellant are similar and involve an exercise in
semantics - "right to travel" [in a vehicle] versus "privilege to drive" [a vehicle]. As
used in this case, the "right to travel" refers to a person's ability to be in a moving
vehicle, either as an operator or as a passenger; whereas the "privilege to drive" refers to
I a person's ability to operate a moving vehicle. It appears that Appellant is claiming that
I•
the provisions of the Vehicle Code of which he was convicted unconstitutionally infringe
upon his "right to travel." This Court could find no law supporting Appellant's claim that
5
the provisions of the Vehicle Code of which he was convicted in any way impair his
"right to travel" in a vehicle. Similarly, this Court could find no authority to support the
proposition that a distinction between Appellant's "right to travel" and "privilege to
drive" renders the Vehicle Code provisions in question unconstitutional.
Conclusion
Finding no support for Appellant's various positions, it is suggested that the
Honorable Superior Court affirm this Court's sentences of final judgment and dismiss
Appellant's appeal.
Respectfully submitted,
' I
Dated: September 19, 2019 __..c.
) -------------'
· SJ.
John C. Reed, Senior Judge
6