Opinion
J-A02035-20 No. 1121 WDA 2019
03-30-2020
COMMONWEALTH OF PENNSYLVANIA v. JASON HARLEY GREENBERG Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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. Specifically, Appellant was charged with driving an unregistered vehicle, improper tires, and investigation by police officers. 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 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.
75 Pa.C.S. §§ 1301(a), 4525(a), and 6308(a), respectively.
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. 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.
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).
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 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.
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
Trial Court Opinion, 9/19/19, at 1-2 (emphasis in original).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.
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 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?Appellant's Brief at 4.
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?
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
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.
The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed. Judgment Entered. /s/
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/30/2020
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