Com. v. Brown D.

J. S02005/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

DONALD W. BROWN, JR., : No. 3378 EDA 2015

:

Appellant :

Appeal from the Judgment of Sentence, October 19, 2015,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0007157-2015

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2017

Donald W. Brown, Jr., appeals from the October 19, 2015 judgment of

sentence of nine months’ probation imposed after the Philadelphia Municipal

Court found him guilty of resisting arrest and disorderly conduct. 1 The

Philadelphia Court of Common Pleas dismissed appellant’s subsequent

appeal from the municipal court after he failed to appear for his trial

de novo. After careful review, we affirm the judgment of sentence.

The relevant facts and procedural history, as gleaned from the certified

record, are as follows. On July 25, 2014, appellant repeatedly yelled

obscenities at a cashier and SEPTA Police Officer Joshua Mann after they

informed him that his sister was too old to ride the elevated rail line without

1

18 Pa.C.S.A. §§ 5104 and 5503(a)(3), respectively.

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paying a fare. (Notes of testimony, 7/16/15 at 7-12.) Officer Mann

attempted to issue appellant a citation, at which point appellant fled and had

to be apprehended. (Id. at 12-16.) In the ensuing scuffle, Officer Mann

suffered a broken bone in one of his hands. (Id.) Appellant was arrested in

connection with this incident and charged with resisting arrest and disorderly

conduct. On July 16, 2015, appellant proceeded to a bench trial in the

Philadelphia Municipal Court before the Honorable Wendy L. Pew. As noted,

appellant was found guilty of the aforementioned offenses and sentenced to

nine months’ probation. Appellant filed a timely notice of appeal and a trial

de novo was scheduled before the Honorable Abbe F. Fletman of the

Philadelphia Court of Common Pleas for October 19, 2015.

When his case was called to determine its status,

[appellant] was not present. [Appellant’s] counsel

admitted that she had had no contact with her client

in quite some time. Court records showed that on

August 3, 2015, [appellant] signed service of a

subpoena, notifying him of his court date, its

location, and that he was required to be present by

9:00[a.m.] The case was put on hold to allow

[appellant’s] counsel to locate [appellant] while the

Court addressed other matters. At approximately

11:45[a.m.] that day it came time for the Court to

revisit [appellant’s] case. He was still absent and his

counsel had been unable to contact him.

Trial court opinion, 3/10/16 at 1-2.

Following appellant’s failure to appear, Judge Fletman dismissed the

trial de novo, issued a bench warrant for appellant, and reinstated the

sentence originally imposed by Judge Pew. (Notes of testimony, 10/19/15

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at 3-6.) On November 2, 2015, appellant appeared at a hearing before the

Honorable Karen Yvette Simmons of the Philadelphia Municipal Court. At

said hearing, Judge Simmons informed appellant that his appeal had been

dismissed due to his failure to appear for trial and reinstated the sentence

originally imposed by Judge Pew. (Notes of testimony, 11/2/15 at 4.)

Appellant addressed the court, but did not offer an excuse for his absence at

the trial de novo and made no claim that his appeal had been improperly

dismissed. (Id. at 5-6.) Appellant did not file a motion for reconsideration.

This timely appeal followed.2

On appeal, appellant raises the following issues for our review:

A. Did not the Philadelphia Court of Common

Pleas violate [appellant’s] constitutional right

to a jury trial in dismissing his trial de novo

and reinstating his Philadelphia Municipal Court

conviction and judgment of sentence in that

[appellant] never waived his right to a jury

trial for the offenses of which he was charged?

B. Did not the Philadelphia Court of Common

Pleas err in dismissing [appellant’s] trial

de novo and reinstating his Philadelphia

Municipal Court conviction and judgment of

sentence in that the evidence was insufficient

to prove that [appellant’s] failure to appear at

his trial de novo was willful and voluntary?

Appellant’s brief at 3.

Preliminarily, we note that following a conviction in Philadelphia

Municipal Court, an appellant has two options on appeal: he may “request

2

Appellant and the trial court have complied with Pa.R.A.P. 1925.

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either a trial de novo or file a petition for a writ of certiorari with the

Philadelphia Court of Common Pleas.” Commonwealth v. Coleman,

19 A.3d 1111, 1118-1119 (Pa.Super. 2011), citing Pa.R.Crim.P 1006(1)(a).

“A trial de novo gives the defendant a new trial without reference to the

Municipal Court record; a petition for writ of certiorari asks the Common

Pleas Court to review the record made in the Municipal Court.”

Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa.Super. 2015)

(citation omitted). “[W]hen a defendant files a petition for a writ of

certiorari, the Philadelphia Court of Common Pleas sits as an appellate

court.” Coleman, 19 A.3d at 1119 (citation omitted). On the contrary,

when a defendant is afforded a trial de novo, as is the case here, any

matters “pertaining to the proceedings before the district magistrate are

irrelevant.” Beaufort, 112 A.3d at 1269 (citation omitted).

Our standard of review is limited to whether

the trial court committed an error of law and

whether the findings of the trial court are supported

by competent evidence. The adjudication of the trial

court will not be disturbed on appeal absent a

manifest abuse of discretion. An abuse of discretion

may not be found merely because an appellate court

might have reached a different conclusion, but

requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of

support as to be clearly erroneous.

Commonwealth v. Dixon, 66 A.3d 794, 796 (Pa.Super. 2013) (citations

and internal quotation marks omitted).

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Appellant first argues that the trial court’s dismissal of his appeal for a

trial de novo was improper because it violated his constitutional right to a

jury trial. (Appellant’s brief at 11-17.) Appellant maintains that, at the very

least, the trial court should have conducted a trial in absentia. (Id. at

18-19.)

Upon review, we conclude that appellant has waived these claims. The

record reveals that appellant’s counsel failed to raise either of these issues

during the October 19, 2015 proceeding, and appellant did not file a motion

for reconsideration. Rather, appellant raised these arguments for the first

time in his Rule 1925(b) statement. It is well established that issues not

raised below, even those of a constitutional nature, are waived. See

Commonwealth v. Miller, 80 A.3d 806, 811 (Pa.Super. 2013) (holding

that, “[a]ppellant’s failure to raise his constitutional claims before the trial

court impedes appellate review, and his failure to develop the record before

the trial court interferes with our ability to conduct a meaningful evaluation

of the issues raised[.]”); see also Pa.R.A.P. 302(a) (“[i]ssues not raised in

the lower court are waived and cannot be raised for the first time on

appeal[]”). Moreover, we note that appellant is not entitled to a jury trial on

a summary offense. See Commonwealth v. Smith, 868 A.2d 1253, 1257

(Pa.Super. 2005), appeal denied, 877 A.2d 462 (Pa. 2005) (finding that

there is no right to a jury trial when a sentence of six months or less is

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imposed.) Accordingly, we decline to address appellant’s first claims on the

basis of waiver.

Appellant next argues that the trial court abused its discretion in

dismissing his appeal for failure to appear for his trial de novo because

there was insufficient evidence to prove that his absence “was willful and

voluntary.” (Appellant’s brief at 19-22.) We disagree.

Pennsylvania Rule of Criminal Procedure 1010 governs the procedures

to be followed in situations where a defendant is convicted in Philadelphia

Municipal Court and seeks a trial de novo in the Court of Common Pleas.

Pa.R.Crim.P. 1010(A)(2).3 Read in relevant part, Rule 1010 provides that,

“[i]f the defendant fails to appear for the trial de novo, the Common Pleas

Court judge may dismiss the appeal and thereafter shall enter judgment in

the Court of Common Pleas on the judgment of the Municipal Court judge.”

Pa.R.Crim.P. 1010(B). The comment to Rule 1010 explains that:

Paragraph (B) makes it clear that the Common Pleas

Court judge may dismiss an appeal when the judge

determines that the defendant is absent

without cause from the trial de novo. If the

appeal is dismissed, the Common Pleas Court judge

must enter judgment and order execution of any

sentence imposed by the Municipal Court judge.

3

Pennsylvania Rule of Criminal Procedure 462 is the statewide (in all

counties outside of Philadelphia) equivalent of Rule 1010(B) and provides, in

pertinent part, as follows: “[i]f 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(D).

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Id. Comment (emphasis added). Therefore, before an appeal for a trial

de novo may be dismissed for failure to appear, the trial court must

ascertain whether the absentee defendant had good cause for his absence.

See Commonwealth v. Akinsanmi, 55 A.3d 539, 540 (Pa.Super. 2012)

(noting, “[w]hen a defendant does not appear for the summary appeal and

does not provide an excuse, dismissal of the appeal is proper. Conversely,

when good cause for the absence is shown, a new trial should be granted.”

(citations omitted)).

Upon review, we conclude that the trial court properly dismissed

appellant’s appeal after he failed to appear for his trial de novo. It is

undisputed that appellant failed to appear for his October 19, 2015 de novo

trial under the plain meaning of Rule 1010(B). Accordingly, we must resolve

only the question of whether appellant demonstrated “good cause” for his

absence. The record reveals that counsel offered no explanation for

appellant’s absence during the October 19, 2015 de novo trial. (See notes

of testimony, 10/19/15 at 4-5.) On the contrary, appellant’s counsel

acknowledged that dismissal of the appeal was appropriate. (Id. at 5.) At

the November 2, 2015 hearing, appellant again failed to offer any

explanation as to why he failed to appear at his de novo trial or seek a

continuance. (See notes of testimony, 11/2/15 at 3-6.)

The trial court, in turn, noted that it was “entirely reasonable” for it to

conclude that appellant’s absence was willful and voluntary:

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[Appellant] had notice of his court date on August 3,

2015, giving him two and a half months to inform his

counsel of any scheduling issues. The Court

attempted to accommodate [appellant] and his

counsel by giving him almost three hours to either

come to court or inform the Court of the

circumstances that led to his absence. . . . No

reason for [appellant’s] absence was offered.

Trial court opinion, 3/10/16 at 2-3.

Given the record before us, we find that appellant has failed to satisfy

his burden to show good cause for his absence from the de novo trial.

Appellant has also failed to demonstrate an involuntary absence or an

unforeseen circumstance. It is well settled that, as a reviewing court, we

are bound by the trial court’s weight of the evidence and credibility

determinations. See Commonwealth v. Sanchez, 907 A.2d 477, 491 (Pa.

2006), cert. denied, 551 U.S. 1106 (2007) (noting where the trial court

functions as fact-finder, “appellate courts generally do not substitute their

judgments for those of a fact-finder in matters of credibility”). Accordingly,

we find that the trial court’s dismissal of the de novo appeal was entirely

proper under Rule 1010, and appellant’s claim of trial court error must fail.

For all the foregoing reasons, we affirm the October 19, 2015

judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2017

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