J-S34026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RONALD W. BONEY

                            Appellant                No. 100 MDA 2015


           Appeal from the Judgment of Sentence October 16, 2014
                In the Court of Common Pleas of Perry County
             Criminal Division at No(s): CP-50-SA-0000006-2012


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                 FILED JULY 14, 2015

        Ronald W. Boney appeals from the judgment of sentence imposed on

October 16, 2014, in the Court of Common Pleas of Perry County, following a

summary appeal. Boney was convicted of driving while operating privilege

was suspended.1 The trial court sentenced Boney to 75 days’ incarceration.

In this appeal, Boney contends the trial court erred in (1) denying his motion

to dismiss pursuant to Pa.R.Crim.P. 600, and (2) denying his motion to

dismiss pursuant to constitutional due process rights.2    Boney’s Brief at 4.

Based upon the following, we affirm.
____________________________________________


1
    75 Pa.C.S. § 1543(b)(1).
2
  Although it appears from the trial court docket that Boney timely complied
with the order of the trial court to file a Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal, Boney’s Rule 1925 statement is not
included in the certified record. The trial court, however, reiterates the
(Footnote Continued Next Page)
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      This case arose as a result of a February 5, 2011, incident, for which

Boney was issued a traffic citation for driving under suspension. Thereafter,

      [o]n February 3, 2012, [Boney] was convicted of violating 75
      Pa.C.S. § 1543(b)(1), Driving Under Suspension—DUI related,
      which is a summary offense. [Boney] then filed an appeal to
      [the trial court] on February 17, 2012. By letter dated July 17,
      2014, [Boney] was notified to appear for the purpose of a
      hearing on appeal from summary conviction on August 11, 2014.
      On August 7, 2014, [Boney] filed a Petition to Dismiss Pursuant
      to Rule 600. On August 11, 2014, [the trial court] issued an
      order stating that it was considering the petition, and that upon
      reaching a decision [the court] would grant the relief requested
      or would continue the matter upon motion of [Boney]. On
      August 27, 2014, [the trial court] denied [Boney’s] Petition to
      Dismiss Pursuant to Rule 600, and the matter was then
      continued upon motion of [Boney] until October 16, 2014, so
      that [Boney] could subpoena witnesses. On October 16, 2014,
      at the summary appeal, [Boney] was again convicted of violating
      section 1543(b)(1).

Trial Court Opinion, 1/26/2015, at 1.

      At the outset, we note:

      Our standard of review from an appeal of a summary conviction
      heard de novo by the trial court is limited to a determination of
      whether an error of law has been committed and whether the
      findings of fact are supported by competent evidence. The
      adjudication of the trial court will not be disturbed on appeal
      absent a manifest abuse of discretion. An abuse of discretion
      may not be found merely because an appellate court might have
      reached a different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support as to be clearly erroneous.


                       _______________________
(Footnote Continued)

issues raised in Boney’s concise statement in its opinions. See Trial Court
Opinion, 1/30/2015, at 2; Trial Court Opinion, 1/26/2015, at 2.



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Commonwealth v. Rodriguez, 81 A.3d 103, 105–106 (Pa. Super. 2013)

(quotations and citations omitted), appeal denied, 91 A.3d 1238 (Pa. 2014).

      As background to the issues raised in this appeal, Boney states:

             Ronald W. Boney was convicted on February 3, 2012 of
      Driving Under Suspension 75 section 1543(b)(1) in the
      Magisterial District Court in Newport, Pennsylvania. On February
      17, 2012, [Boney] filed a timely appeal and request for De Novo
      trial in the Court of Common Pleas of the 41st Judicial District.
      On March 2, 2012, [Boney] was prosecuted on an unrelated
      charge through the same prosecutor’s office and sentenced to 16
      months to 36 months in a state correctional institution. The
      prosecutor subsequently sent notice to [Boney] that his
      summary appeal would be heard on August 11, 2014.

                                        ****

      The facts of the present case show that nearly 2 and [one-half]
      years passed between [Boney] filing his notice of appeal and his
      opportunity for hearing. This is a substantial delay. The reason
      for the delay involved the prosecutor not wanting to transport
      [Boney] from a state correctional institution. Prisoners are
      transported every day for hearings from state correctional
      institutions. There is no justifiable excuse for delay based on
      transportation. … [Boney] was actually prejudiced by the
      trooper’s inability to recall the events of the day aside from using
      whatever notes were taken and [Boney’s] inability to recall
      certain events.

Boney’s Brief at 5, 7.

      Boney first contends that the trial court erred in denying his

Pennsylvania Rule of Criminal Procedure 600 Motion. Boney argues his de

novo summary appeal was not tried in the trial court within 365 days as

required by Pa.R.Crim.P. 600. This argument, however, is meritless, as our

Court has stated that Pa.R.Crim.P. 1100, which is now Rule 600, is not

applicable to de novo trials involving summary violations as the Rule


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J-S34026-15



excludes summary proceedings. See Commonwealth v. Koch, 431 A.2d

1052, 1054 n.5 (Pa. Super. 1981) (en banc) (noting that Criminal Rule 1100

[predecessor to Criminal Rule 600] is inapplicable to summary proceedings

as the rule specifically excludes such proceedings by its language). Indeed,

Chapter 6 of the Rules of Criminal Procedure is titled as the “Trial Procedures

in Court Cases.” Further, Rule 600(A)(2)(a) requires that “[t]rial in a court

case in which a written complaint is filed against the defendant, when the

defendant is at liberty on bail, shall commence no later than 365 days from

the date on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a)

(emphasis added). A “court case” is defined as “a case in which one or more

of the offenses charged is a misdemeanor, felony, or murder of the first,

second, or third degree.” Pa.R.Crim.P. 103. By contrast, a “summary case”

is defined as “a case in which the only offense or offenses charged are

summary offenses.” Id.

      In this case, Boney was charged with a single summary offense of

driving while his operating privilege was suspended, in violation of 75

Pa.C.S. 1543(b). As such, this case is a “summary case” and cannot be

considered a “court case.” Based upon the foregoing, we conclude that Rule

600 is inapplicable to this proceeding involving only a summary offense. See

Koch, supra; see also Constantino v. Forest Hills Borough, 563 A.2d

953, 957 (Pa. Cmwlth. 1989) (concluding that appellant’s right to a speedy

trial has not been violated because Rule 1100(d)(1) does not apply “to

appeals from summary convictions, but rather to the granting of a new trial

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by the trial court.”); cf. Commonwealth v. Kujas, 435 A.2d 1293, 1294

(Pa. Super. 1981) (concluding that summary offenses charged in the same

complaint as misdemeanors are part of a “court case” for the purposes of

Criminal Rule 1100).

       Next, Boney argues that the proceedings were not completed in a

timely fashion and as such, violated his constitutional due process rights.

While not mentioned by the parties, Section 5553(e) of Title 42 provides

that “No proceedings shall be held or action taken pursuant to a summary

offense under Title 75 subsequent to three years after commission of the

offense.” 42 Pa.C.S. § 5553(e) (emphasis added).3 Under Section 5553(e),

any summary proceedings initiated under Title 75 must be disposed of “at

the trial level” within three years or not at all. Commonwealth v. Ristau,

666 A.2d 338, 340 (Pa. Super. 1995) (citation omitted). However, our case

law makes clear that the limitation period is tolled during those periods of

delay that are directly attributable to the defendant. Commonwealth v.

Quinn, 592 A.2d 1316, 1317 (Pa. Super. 1991) (holding “any period of

delay directly attributable to the accused tolls the limitation period of §

5553(e)”).




____________________________________________


3
  Prior to January 28, 2005, 42 Pa.C.S. § 5553(e) provided that summary
prosecution for a vehicle violation must be completed within two years from
commission of the offense.



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        Here, the time span between the issuance of the commission of the

offense on February 5, 2011, and the date scheduled for the de novo trial,

August 11, 2014, is a little more than three years and six months. Boney

argues the delay was due to the Commonwealth’s failure to transport him

from state prison where he was serving a 16-to-36 month sentence,

following his March 2, 2012 prosecution on unrelated charges by the same

prosecutor.    We find this argument unpersuasive.

        Initially, delay in this case occurred in the magisterial district court

where Boney was not convicted by the district judge until February 3, 2012,

almost a year after the February 5, 2011 traffic offense.           The docket

transcript from the magisterial district court, which is included in the

certified record, reflects that a summary trial was scheduled for June 30,

2011, but was continued because “Defendant Failed to Appear – Good

Cause.” Boney has offered no evidence that he objected to the continuance.

The docket transcript also shows a summary trial was scheduled for January

31, 2012, and continued for the reason stated as “Other.”        As mentioned

above, Boney was convicted on February 3, 2011.

        On this record, we conclude that the delay between the June 30, 2011,

and January 31, 2012 scheduled summary trials, was “directly attributable”4

to Boney’s conduct — i.e., his failure to appear for the June 30, 2011


____________________________________________


4
    Quinn, supra, 592 A.2d at 1317.



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summary trial.        Therefore, given that the approximately three-year-six-

month time period between February 5, 2011, and August 11, 2014, was

tolled    by   this   six-month-plus   delay,   we   conclude   Boney’s   summary

proceeding was completed within the three year limitation period of Section

5553(e). Consequently, we reject Boney’s claim that his due process rights

were violated in this case.

         Accordingly, we affirm.

         Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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