Opinion
J-S84029-16 No. 2127 EDA 2015
02-10-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. ANDRE WILLIAMS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Dated June 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003698-2015 BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J. MEMORANDUM BY SOLANO, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Andre Williams, appeals from the order of the Court of Common Pleas of Philadelphia dismissing his appeal for a trial de novo, and reinstating the judgment of sentence imposed by the Municipal Court of Philadelphia. We affirm.
We note that Appellant has another appeal, at No. 2266 EDA 2015, in which he raises this same issue with respect to a similar disposition at a different Court of Common Pleas docket number, CP-51-CR-0003979-2015.
The Court of Common Pleas summarized the procedural history of this case as follows:
On April 8, 2015, the matter of the Commonwealth of Pennsylvania versus [Appellant] was heard in the Municipal Court of Philadelphia . . . on the charges of possession of an
instrument of crime and terroristic threats. That court found [Appellant] guilty of terroristic threats, and imposed a sentence of six (6) to twelve (12) months of incarceration with immediate parole after six (6) months followed by twelve (12) months of reporting probation. [Appellant] filed a Notice of Appeal for a trial de novo before the Court of Common Pleas that same day.Trial Court Opinion, 12/16/15, at 1-2.
On April 30, 2015, [Appellant] was scheduled to appear before this court for his Formal Arraignment. On that date, [Appellant] failed to appear and this court issued a subpoena instructing [him] to return to this court for trial on June 17, 2015 at 9:00 a.m. Defense attorney Michael Sanuck accepted service on behalf of [Appellant].
On June 17, 2015, [Appellant] failed to appear for trial. At approximately 11:04 a.m., the court dismissed the appeal pursuant to Pennsylvania Rule of Criminal Procedure 1010(B), adjudicated [Appellant] guilty and reinstated the Municipal Court sentence of six (6) to twelve (12) months of incarceration with immediate parole after six (6) months followed by twelve (12) months of reporting probation. A bench warrant was issued that same day and later lifted by the Honorable Harvey W. Robbins in Municipal Court. [Appellant] filed a timely Notice of Appeal. After receiving the notes of testimony of the June 17, 2015 hearing as ordered by [Appellant], a timely Statement of Errors in accordance with Pennsylvania Rule of Appellate Procedure 1925(b) was filed.
On appeal, Appellant presents a single issue for our review:
Did not the Court of Common Pleas violate [Appellant's] constitutional right to a jury trial in dismissing [his] trial de novo and reinstating his Municipal Court conviction and judgment of sentence, insofar as [Appellant] had never waived his right to a jury trial for those offenses?Appellant's Brief at 3.
Our standard of review is whether the trial court abused its discretion or committed an error of law, and whether competent evidence supports the trial court's findings. See Commonwealth v. Askins , 761 A.2d 601, 603 (Pa. Super. 2000), appeal dismissed as improvidently granted , 782 A.2d 508 (Pa. 2001). "An abuse of discretion is not a mere error in judgment, but rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law." Commonwealth v. Cox , 115 A.3d 333, 336 (Pa. Super. 2015) (citations omitted), appeal denied , 124 A.3d 308 (Pa. 2015).
Appellant argues that he had a constitutional right to a jury trial which he never waived. Appellant's Brief at 5. He asserts that "[m]erely failing to appear for court on one day does not waive or forfeit that right, particularly where other remedies are available." Id. He also maintains that "[i]nsofar as the judge's actions were purportedly authorized by Pa.R.Crim.P. 1010(B), that rule of criminal procedure cannot trump the Constitutions of the United States and Pennsylvania." Id. at 5-6. We disagree.
As the Commonwealth correctly observes, Appellant waived this argument because he "was represented by counsel throughout the proceedings below and there is nothing in the record to indicate that he requested a jury trial in absentia or objected when the court did not provide one." Commonwealth Brief at 6, citing Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and may not be raised for the first time on appeal). Appellant's assertion of a constitutional right does not change this result. See , e.g., Commonwealth v. Miller , 80 A.3d 806, 811 (Pa. Super. 2013) (finding appellant's constitutional challenges waived for failure to raise them before the trial court).
Even in the absence of waiver, Appellant's claim is without merit. Pennsylvania Rule of Criminal Procedure 1010(B), governing Philadelphia Municipal Court procedures, states:
If the defendant fails to appear for the trial de novo, the Common Pleas Court judge may dismiss the appeal and thereafter shall enter judgment in the Court of Common Pleas on the judgment of the Municipal Court judge.Pa.R.Crim.P. 1010(B). See Commonwealth v. Akinsanmi , 55 A.3d 539, 540-541 (Pa. Super. 2012) (when a defendant fails to appear for a summary appeal and does not provide good cause, dismissal of the appeal is proper). The comment to Rule 1010(B) explains:
Paragraph (B) makes it clear that the Common Pleas Court judge may dismiss an appeal when the judge determines that the defendant is absent without cause from the trial de novo. If the appeal is dismissed, the Common Pleas Court judge must enter judgment and order execution of any sentence imposed by the Municipal Court judge. Nothing in this rule is intended to preclude the judge from issuing a bench warrant when the defendant fails to appear.Id., cmt. Because Appellant failed to appear for his summary appeal and offered no reason for his failure to do so, the trial court acted properly in applying Rule 1010(B), and we affirm its decision.
Pennsylvania Rule of Criminal Procedure 462 applies to trials de novo in all counties outside of Philadelphia. It similarly provides that "[i]f 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(D).
The Honorable Vincent N. Melchiorre, sitting as the trial court, has authored a comprehensive opinion which expands upon the facts and law discussed above, in determining that Appellant is not entitled to relief. Judge Melchiorre cites prevailing legal authority, and notes that Appellant, "at no time" provided the trial court "with an excuse for not appearing on June 17, 2015[]." Trial Court Opinion, 12/16/15, at 6 n.3. We adopt and incorporate the trial court's opinion in disposing of this appeal. The parties shall attach a copy of the trial court's December 16, 2015 opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/10/2017
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