Opinion
J-A21032-18 No. 533 EDA 2018
08-14-2018
COMMONWEALTH OF PENNSYLVANIA v. STEPHEN L. FITZGIBBONS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 8, 2018
In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-SA-0000032-2018 BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J. JUDGMENT ORDER BY McLAUGHLIN, J.:
When Stephen L. Fitzgibbons failed to appear for his nunc pro tunc appeal for a trial de novo in the Montgomery County Court of Common Pleas, the court dismissed the appeal without prejudice. We affirm.
A Magisterial District Judge found Fitzgibbons guilty in February 2017 of summary traffic offenses for operating a vehicle with a suspended registration and exhibiting a suspended license. See 75 Pa.C.S.A. §§ 1371(a), 1571(a)(1). The docket shows that Fitzgibbons did not appear for the proceedings; the reason is not evident in the certified record. Fitzgibbons states in his appellate brief that he "was unaware of the first two court dates as [he] was not getting [his] mail at the time," and "had no transportation at the time of the third hearing." Appellant's Br. at 1 (unpaginated).
Fitzgibbons did not immediately appeal to the Court of Common Pleas, but the court allowed, by agreement of the parties, a nunc pro tunc appeal for a trial de novo. The court scheduled a hearing for February 8, 2018 at 1:30 PM. See Notice of Appeal. However, Fitzgibbons failed to appear at the trial de novo. The court dismissed the summary appeal without prejudice, re-instated the finding of guilt, entered judgment, and imposed a sentence of no further penalty. See Pa.R.Crim.P. 462(D) & cmt. (providing that court may dismiss a summary appeal and enter judgment if the defendant fails to appear without good cause); Trial Court Opinion, filed May 10, 2018, at 1.
Fitzgibbons then appealed to this Court. Although the Court of Common Pleas dismissed the appeal "without prejudice," our jurisdiction is proper. Fitzgibbons was not required to seek relief in the trial court; the dismissal order was a final order. See Pa.R.Crim.P. 720(d) (precluding post-sentence motions in summary case appeals following a trial de novo); Commonwealth v . Dixon , 66 A.3d 794, 797 (Pa.Super. 2013) (affirming, on the merits, the dismissal of a summary appeal for the defendant's failure to appear, noting that this Court often conducts the Rule 462(D) analysis in the first instance).
After Fitzgibbons lodged his appeal to this Court, the Court of Common Pleas ordered him to file and serve a Statement of Errors Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b). Fitzgibbons did not comply with the Rule 1925(b) order, and in so doing, he waived all arguments on appeal. We therefore affirm. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Hill , 16 A.3d 484, 494 (Pa. 2011) (citing Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998)).
In any event, the lower court properly dismissed the appeal. Fitzgibbons states on appeal that he was late to the hearing in Montgomery County due to traffic resulting from the Eagles' Super Bowl victory parade in Philadelphia. His claim that he merely showed up late, rather than failed to appear, is belied by the trial court's opinion, and his explanation (even if true) does not constitute good cause, such as would excuse his absence. See Commonwealth v. Akinsanmi , 55 A.3d 539, 541 (Pa.Super. 2012). He offers no reason he was unable to prepare in advance to attend the hearing despite foreseeably heavy traffic.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/14/18