Opinion
No. 868 C.D. 2014
02-20-2015
Commonwealth of Pennsylvania v. Charles and Evelyn Shoaf, Appellants
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Evelyn Shoaf (Shoaf), representing herself, asks whether the Court of Common Pleas of Allegheny County (trial court) erred in dismissing her appeal of her summary conviction for violating a provision of the Borough of Dravosburg's property maintenance ordinance (ordinance) relating to unsafe structures. Among other things, Shoaf questions why the summary appeal hearing before the trial court proceeded in her absence when her son notified the trial court that she was hospitalized on the date of the hearing. Upon review, we vacate and remand for a determination of whether Shoaf had cause for her failure to appear at the scheduled hearing, and if she had cause, for a trial de novo on the merits.
Charles Shoaf is deceased.
In October 2013, a magisterial district judge found Shoaf guilty of violating the ordinance and imposed a fine of $8,000 plus costs. Shoaf appealed to the trial court.
After an apparent postponement, the trial court convened a hearing on April 22, 2014. At the outset of the hearing, the clerk stated that Shoaf's son contacted the trial court and indicated Shoaf was hospitalized and, therefore, sought a postponement. Counsel for the Commonwealth responded:
Your Honor, this case was scheduled for March 25th. The same thing happened, everybody showed up for Dravosburg. I was here, the building inspector was here and your office got a phone call the mother was in the hospital. The hearing was rescheduled for today by your order and no further postponements. We don't have any verification. We need documentation. If they wanted a postponement they have got to notify the parties in advance.Certified Record (C.R.), Item #4, Summary Appeal Hearing, Notes of Testimony (N.T.), 4/22/14, at 1.
In response, the trial court inquired about the "high fine" imposed below. Id. Counsel for the Commonwealth informed the trial court that the fine was imposed because of a dilapidated structure. He offered to show the trial court photographs depicting the condition of the structure; however, the photographs were not admitted into evidence. Counsel for the Commonwealth also stated the magisterial district judge fined Shoaf $1,000 per day for the violation. Counsel for the Commonwealth then notified the trial court that Shoaf had not performed any repairs on the property. He also stated, "[e]very time there is a hearing scheduled they call and say they can't make it. Like I said, your last order said no further postponements." N.T. at 2. In response, the trial court dismissed Shoaf's appeal.
The trial court then issued a "form" order in which it checked a box that stated: "DEFENDANT FAILED TO APPEAR. APPEAL IS DISMISSED AND JUDGMENT IS ENTERED ON THE JUDGMENT OF THE ISSUING AUTHORITY PURSUANT TO PA. RULES OF CRIMINAL PROCEDURE 462 (D)." C.R., Item #2. Shoaf appealed to this Court.
The trial court subsequently issued a very brief opinion, which states, in its entirety:
This is a de novo Summary Appeal by Defendants, Charles and Evelyn Shoaf, from a Code Violation of the Borough of Dravosburg: LO 108 - unsafe structure and equipment. Defendant was cited on August 28, 2012, and was found guilty on October 16, 2013.Tr. Ct. Slip Op., 5/29/14, at 1. This matter is now before us for disposition.
The Summary Appeal hearing was conducted on April 22, 2014, at which time Defendants failed to appear. In their absence, judgment was entered on the judgment of the issuing authority, pursuant to Pa. Rules of Criminal Procedure 462(d).
Defendant was fined $8,000.00, plus all applicable costs. Accordingly, the appeal was dismissed.
On appeal, Shoaf takes issue with the fact that the hearing before the trial court proceeded in her absence despite the fact that her son contacted the trial court and explained she was hospitalized. Shoaf, who is 81 years of age, asserts she was in UPMC McKeesport Hospital on the date of the hearing and, therefore, she was unable to attend.
As to the merits, Shoaf claims her property was singled out as violative of the ordinance based on a complaint, despite the fact that other nearby structures are in similar condition to her property. She asserts she is unable to afford the necessary repairs or the $8,000 fine. Shoaf also points out the Commonwealth's counsel improperly informed the trial court that the fine levied against her was $1,000 per day when, in fact, it was $100 per day.
Attached to Shoaf's brief is a letter from her physician indicating that she has difficulty in ambulation, suffers from anxiety, does not drive and rarely leaves her home. Because this letter is not part of the certified record, we may not consider it. Gibbs v. Dep't of Pub. Welfare, 947 A.2d 233 (Pa. Cmwlth. 2008).
Pennsylvania Rule of Criminal Procedure 462 governs trials de novo following the appeal of a summary conviction. That Rule states, in pertinent part:
Rule 462. Trial De NovoPa.R.Crim.P. 462. The Comments to the Rule explain that: "Paragraph (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 the trial de novo ." Pa.R.Crim.P. 462, cmt. (emphasis added).
(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.
"Therefore, before a summary appeal may be dismissed for failure to appear, the trial court must ascertain whether the absentee defendant had adequate cause for her absence." Commonwealth v. Dixon, 66 A.3d 794, 796 (Pa. Super. 2013) (citation omitted). Failure to do so constitutes reversible error. Commonwealth v. Mesler, 732 A.2d 21 (Pa. Cmwlth. 1999). Further, in the event good cause is established, the defendant is entitled to a new summary trial. Dixon.
As this Court noted in Mesler, the Rules of Criminal Procedure are "intended to provide for the just determination of every criminal proceeding" and "shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay." Pa.R.Crim.P. 101(A), (B).
In Dixon, the Superior Court observed:
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.Id. at 796-97.
Here, the abbreviated hearing transcript confirms Shoaf's assertion that her son contacted the trial court prior to the start of the hearing to inform the court that Shoaf was in the hospital. N.T. at 1. Counsel for the Commonwealth responded that, at a prior scheduled hearing, the same issue arose, and the trial court issued an order rescheduling the hearing and indicating there would be no further postponements. Id. Despite these statements, the trial court made no further inquiry or statement regarding whether Shoaf had cause for failing to attend the hearing. N.T. at 1-2. Rather, the trial court simply dismissed Shoaf's appeal. N.T. at 2; C.R., Item #2. Additionally, in its subsequent brief opinion the trial court made no mention of whether it determined Shoaf was absent without cause as contemplated by Pa.R.Crim.P. 462(D).
Although the Commonwealth attached a copy of this purported order to its brief to this Court, the order is not contained in the certified record. Therefore, we may not consider it. Gibbs.
In the absence of any such inquiry or determination, a remand is necessary for a hearing to determine whether Shoaf had cause for her failure to appear at the scheduled hearing on April 22, 2014. If the trial court determines Shoaf had cause for failing to appear, the trial court must provide Shoaf with a trial de novo on the merits. See Commonwealth v. Marizzaldi, 814 A.2d 249, 252 (Pa. Super. 2002) (where common pleas court entered judgment on summary appeal in defendant's absence and neither transcript nor opinion revealed common pleas court made any inquiry as to whether defendant had cause for failing to appear, common pleas court's dismissal violated "clear intent" of the Rules of Criminal Procedure and required a remand for a trial de novo); see also Commonwealth v. Cicchiello (Pa. Cmwlth., No. 1087 C.D. 2008, filed May 13, 2009), 2009 WL 9096530 (unreported) (remanding for common pleas court to determine if defendant had cause for failing to attend de novo hearing on summary appeal, and if cause was established, hearing on the merits of summary appeal).
The Commonwealth cites Commonwealth v. Slomnicki, 773 A.2d 216 (Pa. Cmwlth. 2001) for the proposition that the trial court had authority to dismiss Shoaf's appeal based on her failure to appear at the de novo hearing. However, as the Commonwealth recognizes, in Slomnicki, the defendant failed to appear at the de novo hearing "without any excuse." Id. at 218. Here, unlike in Slomnicki, Shoaf did, in fact, offer an excuse for her failure to appear at the de novo hearing, and the trial court made no determination as to whether her excuse constituted good cause.
Hypothetically speaking, Shoaf could have been admitted to the hospital shortly before commencement of the hearing, thus rendering it infeasible for her to seek a continuance in advance of the hearing, as the Commonwealth suggests. The lack of a record concerning the circumstances surrounding Shoaf's purported hospitalization renders a remand necessary for a determination of whether Shoaf had cause for her absence at the hearing. --------
Based on the foregoing, the order of the trial court is vacated and this matter is remanded for proceedings consistent with the foregoing opinion.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 20th day of February, 2015, the order of the Court of Common Pleas of Allegheny County is VACATED and this matter is REMANDED for proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge