Opinion
No. 563 C.D. 2012
11-07-2012
Commonwealth of Pennsylvania v. Michele Tomlins, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Michele Tomlins (Tomlins) appeals from the Washington County Court of Common Pleas' (trial court) March 1, 2012 verdict that found her guilty under Citation Nos. P9055866-1 and 9055867-2, but not guilty under Citation No. 9055868-3. Tomlins presents two issues for this Court's review: (1) whether the trial court erred when it convicted her of violating the local ordinances where the unlawful conduct was that of Tomlins' tenants rather than Tomlins herself; and (2) whether the trial court erred in rendering conflicting verdicts where the proofs and elements of the acquitted crime were identical to those of the convicted crimes. Because it appears that Tomlins' appeal to the trial court may have been untimely, we vacate the verdict of the trial court and remand the matter to that court for the purpose of determining whether Tomlins' appeal was timely filed, and if not, whether grounds exist for nunc pro tunc relief.
Tomlins is the owner of a building located at 301-305 Cherry Street in McDonald Borough (Borough), Pennsylvania, which houses several apartments. Tomlins does not live in the building. Her husband, Donald Tomlins, is the property manager. On June 1, 2011, as a result of ongoing complaints and the Borough Code Enforcement Officer's observations, three citations were issued to Tomlins alleging violations of the Borough Code. Citation No. P9055866-1 was issued under Borough Code Section 10-401(A), due to periodic obstruction of the street due to bicycles, grills and other objects being left in the street. Citation No. 9055867-2 was issued under Borough Code Section 10-401(B), based on excessive garbage throughout the entire area of the property, the odor arising therefrom, and weekly complaints of noise and loud disturbances throughout the evening. Citation No. 9055868-3 was issued under Borough Code Section 10-402, due to the garbage on the property, and damage to neighbors' property caused by children living at Tomlins' property. On June 11, 2011, Tomlins was issued a fourth citation. Citation No. 9055873-1 was issued under Borough Code Section 11-101, for violation of the duties of a landlord.
On July 13, 2011, Tomlins was convicted and assessed fines by the Washington County Magisterial District Court under docket numbers MJ-27306-NT-0000142-2011, 27306-NT-0000150-2011, 27306-NT-0000151-2011 and 27306-NT-000185-2011 relative to all four citations. On August 16, 2011, Tomlins appealed to the trial court, which held a de novo hearing on January 26, 2012. At the inception of the hearing, the Borough withdrew the fourth citation. On March 1, 2012, the trial court found Tomlins guilty relative to Citation Nos. P9055866-1 and 9055867-2, but not guilty under Citation No. 9055868-3. Tomlins timely appealed to this Court.
"When a defendant appeals after the entry of a guilty plea or a conviction by an issuing authority in any summary proceeding . . . the case shall be heard de novo by the judge of the court of common pleas sitting without a jury." Pa.R.Crim.P. 462(A).
This Court's review of a nonjury trial is limited to determin[ing] whether the findings of the trial court are supported by competent evidence, and whether the trial judge committed error in the application of law. As a reviewing court, this Court may not reweigh the evidence or substitute our judgment for that of the fact-finder. Furthermore, the fact-finder is free to believe all, part or none of the evidence presented.
Initially, we note:
Although proceedings pursuant to municipal ordinance violations are civil in nature, where there is a provision in the ordinance that provides for imprisonment upon conviction or failure to pay a fine, they are treated as criminal proceedings and are governed by the Rules of Criminal Procedure. The person or persons charged with violating the ordinance for which imprisonment is available enjoys the same protections that are available to defendants in traditional criminal prosecutions.Commonwealth v. DeLoach, 714 A.2d 483, 485 (Pa. Cmwlth. 1998) (citations omitted). The McDonald Borough Code provides for imprisonment for failure to pay assessed fines for the violations at issue in this matter. Thus, the Pennsylvania Rules of Criminal Procedure apply. Pennsylvania Rule of Criminal Procedure 460(A) states:
When an appeal is authorized by law in a summary proceeding, including an appeal following a prosecution for violation of a municipal ordinance that provides for imprisonment upon conviction or upon failure to pay a fine, an appeal shall be perfected by filing a notice of appeal within 30 days after the entry of the guilty plea, the conviction, or other final order from which the appeal is taken. The notice of appeal shall be filed with the clerk of courts.Pa.R.Crim.P. 460(A) (emphasis added). The untimely filing of an appeal is a jurisdictional defect that may not be disregarded, and may be raised by an appellate court. Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965).
According to the Magisterial District Court's Orders Imposing Sentence contained in the original record, the Magisterial District Court convicted Tomlins on July 13, 2011. The Orders imposing the fines, and notifying Tomlins of her conviction and her right to appeal within thirty days, are dated July 14, 2011. Because it appears that Tomlins' Notice of Summary Appeal from the Magisterial District Court's Orders to the trial court was not filed until August 16, 2011, which was more than thirty days later, her appeal to the trial court may have been untimely filed. Since this Court cannot definitively determine the timeliness of Tomlins' appeal, we vacate the trial court's order and remand to the trial court for a determination as to whether the appeal was timely filed, and if not, whether grounds exist for nunc pro tunc relief.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 7th day of November, 2012, the Washington County Court of Common Pleas' March 1, 2012 verdict is vacated, and this matter is remanded to the court to determine whether the appeal from the Washington County Magisterial District Court was timely filed, and if not, whether grounds exist for nunc pro tunc relief.
Jurisdiction is relinquished.
/s/_________
ANNE E. COVEY, Judge
Commonwealth v. Parente, 956 A.2d 1065, 1068 n.8 (Pa. Cmwlth. 2008) (citations omitted).