Com. v. Comond, M.

J-S54017-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MARVIN COMOND :

:

Appellant : No. 442 MDA 2019

Appeal from the Judgment of Sentence Entered February 19, 2019

In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP-06-SA-0000119-2018

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 24, 2019

Marvin Comond appeals, pro se, from the judgment of sentence entered

in the Court of Common Pleas of Berks County after his summary appeal was

dismissed for failure to appear for his trial de novo. Upon careful review, we

affirm in part and vacate in part.

On September 27, 2017, Comond was issued citations under City of

Reading ordinances for the summary offenses of failure to repair and maintain

a sidewalk1 and failure to maintain an exterior of a structure.2 On February

28, 2018, Comond was convicted of those offenses and ordered to pay the

fines and costs of $535.50 and $135.50, respectively. On March 22, 2018,

Comond filed an appeal to the court of common pleas, which scheduled a trial

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1 LO § 302.3

2 LO § 301.3.1

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de novo for June 6, 2018. The trial was continued until August 1, 2018, at

which time Comond failed to appear and his appeal was dismissed.

On August 2, 2018, the trial court issued an order vacating the dismissal

of Comond’s appeal, finding that Comond had not been properly served with

notice of the hearing date. The court relisted the trial de novo for August 8,

2018. On that date, the court issued a further order continuing the matter

until December 18, 2018. Subsequently, on October 15, 2018, the court

rescheduled the hearing for December 14, 2018.

On December 10, 2018, Comond filed a “Motion to Dismiss the Charges

of the Commonwealth & Motion for Continuance.” In that motion, Comond

claimed that the Commonwealth had withdrawn the citation for failure to

maintain a sidewalk, and asserted that he had remedied the other violation.

Comond also claimed that he was “an out[-]of[-]state student who is currently

pursuing his legal education” and that his last final examination was scheduled

for December 20, 2018. Motion for Continuance, 12/10/18, at ¶ 8.

Alternatively, Comond requested that his hearing be rescheduled for January

9, 2019 “to allow [him] to return to Pennsylvania.” Id. at ¶ 10. By order

dated December 14, 2018, the court rescheduled Comond’s trial de novo for

February 19, 2019. In that order, the court noted that “[n]o motion for

continuance will be considered within three business days of the scheduled

hearing, except for an emergency occurring within that time.” Order,

12/14/18 (emphasis added). On February 18, 2109, Comond faxed a letter

to the court, stating that he would be unable to attend the following day’s

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hearing because he was in school out of state. Comond failed to appear on

February 19, 2019, and the court dismissed his appeal and sentenced him, in

absentia, to pay a fine of $500 per violation, plus costs and fees.

On March 6, 2019, Comond filed a “Motion to Vacate and Reconsider the

February 19, 2019 Order That Dismissed Defendant [sic] Summary Appeal.”3

By order dated March 7, 2019, the trial court dismissed Comond’s motion.

Comond filed a timely notice of appeal on March 12, 2019, followed by a court-

ordered concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Comond raises the following claims for our review:4

1. Did the trial court erred [sic] in dismissing [Comond’s] appeal

without determining whether [Comond] had good cause for his

absence?

2. Did the trial court erred [sic] when it impose [sic] a sentence

greater than the original sentence without conducting a trial de

novo?

3. Did the trial court erred [sic] when it impose [sic] a sentence

greater ($500.00) than the original sentence (from the MDJ

$135.00) without any evidence submitted for the record?

4. Did the trial court erred [sic] in failing to have the code officer

testify at that trial de novo?

5. Did the trial court erred [sic] in sentencing [Comond] to pay

$500 for summary offense [failure to maintain a sidewalk] despite

the charges being dismissed on August 1, 2018 by the Honorable

Judge Fudeman?

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3 Pursuant to Pa.R.Crim.P. 720(D), a defendant is not entitled to file post-

sentence motions following a determination of guilt after a trial de novo.

4 We note that the Commonwealth did not file a brief in this matter.

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6. Did the trial court erred [sic] in sentencing [Comond] to pay a

combine [sic] $1,234.00 despite the work being complete?

7. Did the trial judge erred [sic] in neglecting to rule on

[Comond’s] various motions (motion to dismiss the

Commonwealth [sic] final citation & motion for continuance) prior

to dismissing the trial de novo?

8. Did the trial court erred [sic] in vacating the August 8, 2018

order which schedule [sic] a status conference for December 18,

2018 without any good cause?[5]

9. Did the trial court violation [Comond’s] Federal and

Pennsylvania Constitutional rights?

Brief of Appellant, at 6-7.

Although Comond raises a total of nine separate issues on appeal, his

claims may be distilled to three: (1) whether the trial court erred in dismissing

his appeal de novo for failure to appear; (2) whether the trial court improperly

imposed a greater fine on the charge of failure to maintain an exterior than

had been originally imposed; and (3) whether Comond was properly convicted

of the charge of failure to maintain a sidewalk after the Commonwealth

conceded on the record that Comond had completed the necessary repairs.

We will address these claims in order.

Comond first claims that the trial court erred by dismissing his appeal

without inquiring whether there was good cause for his absence from court on

February 19, 2019. Comond claims that he did, in fact, have good cause for

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5 We decline to address this claim, as Comond himself informed the court that

he would not be present in the Commonwealth of Pennsylvania until after

December 20, 2018, and, therefore, cannot possibly have been prejudiced by

the court’s order rescheduling the December 18, 2018 hearing.

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missing the hearing, in that he is a law student in Massachusetts and could

not appear because he was attending class. Comond is entitled to no relief

on this claim.

We begin by noting the following:

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. Commonwealth v.

Askins, 761 A.2d 601, 603 (Pa. Super. 2000). The adjudication

of the trial court will not be disturbed on appeal absent a manifest

abuse of discretion. Id. “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. Diamond, 945 A.2d

252, 258 (Pa. Super. 2008) (citation omitted).

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

Pennsylvania Rule of Criminal Procedure 462 governs trials de novo and

provides, in relevant part, as follows:

(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). The comment to Rule 462 states that “[p]aragraph

(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

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the trial de novo.” Id. at comment (emphasis added). Accordingly, before a

summary appeal may be dismissed for failure to appear, a trial court is

required to ascertain whether the defendant had adequate cause for his

absence.

As this Court has previously discussed:

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. This is precisely the task that we face in the instant

matter. To do so, we must consider [Commonwealth v.]

Marizzaldi, [814 A.2d 249 (Pa. Super. 2002)], in which this Court

faced a very similar set of circumstances.

Commonwealth v. Dixon, 66 A.3d 794, 796–97 (Pa. Super. 2013).

In Marizzaldi, the defendant failed to appear for his trial de novo on

various traffic offenses. The court dismissed Marizzaldi’s appeal without any

inquiry into his reasons for failing to appear. On appeal to this Court,

Marizzaldi attached to his brief an affidavit explaining the reasons for his

absence from the trial de novo. We held as follows:

After careful review, and assuming arguendo that the facts set

forth in [the appellant’s] brief and affidavit are true and correct,

we find the case at bar sufficiently similar to [Commonwealth v.

Mesler, 732 A.2d 21 (Pa. Cmwlth. 1999)] to warrant relief. The

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abbreviated transcript in the certified record does not contradict

[the appellant’s] assertions on appeal, and the brief opinion of the

trial court makes no mention that a determination of the cause or

duration of [the appellant’s] absence was made. It is for these

reasons that we are compelled to find that the record does not

establish an effort on the part of the trial court to make any such

inquiry, as was the precise situation in Mesler. This failure to do

so is contrary to the clear intent of the Rules and requires a

remand for a trial de novo. . . . [The appellant’s] tardiness was

not voluntary, and he should therefore be given an opportunity to

present a defense.

Id. at 252–53 (footnotes omitted). Accordingly, Marizzaldi stands for the

proposition that an appellant is entitled to a new trial de novo where: (1) the

trial court dismisses a summary appeal without considering whether the

absentee defendant had cause to justify his 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. See Dixon, 66 A.3d at 797.

Here, the trial court made no inquiry on the record as to the reasons for

Comond’s absence from court. In its opinion, however, the court noted that

the date Comond requested for his hearing, January 9, 2019, was not a day

on which the court was to be hearing summary appeals and that the court’s

scheduling order for the February 19, 2019 hearing specifically stated that no

continuances would be granted, except for emergencies, within three business

days prior to the scheduled hearing date. The court further stated the

following:

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[Comond] contends that this [c]ourt was “made aware” that he

would not be able to attend the hearing. We assume that

[Comond] is referring to the fax that is attached hereto as Exhibit

“A.” This [c]ourt is not in the business of practicing law by

facsimile. This [c]ourt is also not in the practice of allowing

litigants to dictate its schedule. Had a proper motion requesting

a continuance been filed, it would have been considered. It was

not in this case.

Trial Court Opinion, 5/3/19, at 4.

As required under Marizzaldi, Comond attached to his reproduced

record an “affidavit”6 in which he averred that he had previously informed the

trial court that he would not be able to attend proceedings while in law school

and had requested a January 9, 2019 hearing date. He further noted that he

had contacted the court via letter on February 18, 2019, to inform the court

that he would not be able to appear. Comond did not allege that he had not

received proper notice of the hearing date.

After our review, we conclude that the trial court did not abuse its

discretion in declining to grant Comond yet another continuance simply

because he was an out-of-state student. At the listing held on August 8, 2018,

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6 Comond’s filing is not, in fact, an “affidavit,” as it was not sworn to before

an officer authorized to administer oaths. See 1 Pa.C.S.A. § 1991 (defining

“affidavit” as “[a] statement in writing of a fact or facts signed by the party

making it, sworn to or affirmed before an officer authorized by the laws of this

Commonwealth to take acknowledgments of deeds, or authorized to

administer oaths, or before the particular officer or individual designated by

law as the one before whom it is to or may be taken, and officially certified to

in the case of an officer under his seal of office.”). For this reason, alone, we

may deny Comond relief, as he has failed to comply with the dictates of

Marizzaldi.

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the court suggested a new date of December 18, 2018, but accommodated

Comond’s schedule by agreeing to re-list his case in the new year. By order

dated December 14, 2018—which Comond does not dispute he received—the

court scheduled trial de novo for February 19, 2019, more than two months

later. Nevertheless, Comond waited until the day before the scheduled trial

de novo to contact the court to request a continuance—a continuance the court

previously stated in writing that it would not grant except in the case of an

emergency. Comond has presented no justification other than his ongoing

status as a law student for his absence from his trial de novo. After prior

attempts to accommodate Comond, and in light of the last-minute, untimely

nature of Comond’s continuance request, the court was under no obligation to

continue to delay resolution of this matter indefinitely while Comond

completed his course of study. Accordingly, Comond is not entitled to a new

trial de novo. See Commonwealth v. Akinsanmi, 55 A.3d 539 (Pa. Super.

2012) (appellant not entitled to new trial de novo where absence due to

scheduled and known commitment; appellant did not establish good cause,

involuntary absence, or unforeseen circumstance).

Next, Comond asserts that the trial court erred in imposing a greater

fine on the charge of failure to maintain an exterior than had been originally

imposed by the magisterial district justice (“MDJ”). Specifically, the MDJ

imposed a total sentence of $135.50 on that charge, representing a $100 fine,

plus $35.50 in costs. After the dismissal of Comond’s appeal de novo, the

court sentenced him to pay a fine of $500, plus costs. While Comond cites

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inapposite law regarding sentencing guidelines in support of this claim, we

nonetheless concur that relief is warranted.

“Whenever a judge imposes a more severe sentence upon a defendant

. . . the reasons for doing so must affirmatively appear.” Commonwealth v.

Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1999) (citation omitted). Here,

the record is devoid of any legal or factual support for the court’s imposition

of an enhanced penalty on the charge of failure to maintain an exterior

following the dismissal of Comond’s summary appeal. The trial court’s opinion

is of no assistance on this issue, as it failed to address this specific claim,

despite Comond having raised it in his court-ordered Rule 1925(b) statement.

See Rule 1925(b) Statement, 4/1/19, at ¶ 3 (“Did the trial court erred [sic]

when it impose [sic] a sentence greater ($500.00) than the original sentence

(from the MDJ $135.00) without any evidence submitted for the record?”).

Because the enhanced fine for failure to maintain an exterior is not supported

in the record, Serrano, supra, we are constrained to vacate that portion of

Comond’s sentence and direct the trial court to re-impose sentence in the

amount originally entered by the MDJ.

Finally, Comond asserts that he was improperly convicted of the charge

of failure to maintain a sidewalk, as the Commonwealth conceded on the

record that he had completed the necessary repairs.7 In support of this claim,

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7 Comond also asserts that the Commonwealth actually withdrew the citation

regarding failure to maintain a sidewalk. Comond includes in his reproduced

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Comond cites the following statement made by Frederick Lachat, Esquire,

counsel for the City of Reading, at the August 8, 2018 hearing:

MR. LACHAT: Your Honor, I am here on Number 17. And the

Defendant is here but we are continuing both citations although

we do intend to withdraw the one because he has fixed his

sidewalk. The windows we are working with him on.

N.T. Hearing, 8/8/18/ at 2 (emphasis added).

It is well-established that a party is bound by an admission of fact.

For an averment to qualify as a judicial admission, it must be a

clear and unequivocal admission of fact. Judicial admissions are

limited in scope to factual matters otherwise requiring evidentiary

proof, and are exclusive of legal theories and conclusions of law.

The fact must have been unequivocally admitted and not be

merely one interpretation of the statement that is purported to be

a judicial admission.

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record, and also as an exhibit to various filings in the trial court, a copy of an

order dated August 1, 2018, purporting to dismiss the violation for failure to

maintain a sidewalk. However, that order does not contain an original

signature by the trial court; rather, the court’s name is typed over the

signature line. Moreover, the trial court docket does not reflect the entry of

such an order, and it is not contained in the record certified to this Court, save

as an exhibit attached to filings by Comond. Rather, the record contains two

orders, both entered on August 1, 2018, and signed by the trial court,

dismissing Comond’s appeal and ordering him to pay the balance due in full.

Those orders were subsequently vacated by order dated August 2, 2018, the

court having found that Comond had not been properly served with notice of

the summary appeal date. Because the order Comond relies upon does not

appear ever to have been filed of record, we decline to consider it. See

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (observing

that “[t]his Court does not rely on items dehors the record[.]”). Moreover,

given the serious question as to the authenticity of the order Comond has

proffered to both this Court and the trial court, the trial court may wish to

inquire of Comond as to the manner in which he obtained the order.

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Century Sur. Co. v. Essington Auto Ctr., LLC, 140 A.3d 46, 52 (Pa. Super.

2016) (citation omitted).

Here, counsel for the Commonwealth made an unequivocal admission,

on the record in open court, that Comond had “fixed his sidewalk” and that

the Commonwealth, therefore, intended to withdraw the citation as to that

charge. This admission is binding on the Commonwealth and, therefore, its

continued pursuit of the claim of failure to maintain a sidewalk against Comond

was improper. Accordingly, we vacate Comond’s conviction and judgment of

sentence for failure to maintain a sidewalk.

Conviction for failure to maintain an exterior affirmed; conviction for

failure to maintain a sidewalk vacated; judgments of sentence on both

convictions vacated; case remanded for proceedings consistent with the

dictates of this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2019

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