J-A30013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTHONY LEWIS

                            Appellant                 No. 2003 EDA 2013


                      Appeal from the Order June 25, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014550-2012


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                          FILED DECEMBER 28, 2015

        Appellant, Anthony Lewis, appeals from the June 25, 2013 order

dismissing his appeal for a trial de novo and reinstating his judgment of

sentence of eighteen months’ probation, imposed by the Municipal Court of

Philadelphia. After careful review, we affirm.

        The trial court has summarized the relevant procedural background of

this case as follows.

                    On September 10, 2012, [Appellant] was found
              guilty by Philadelphia Municipal Court … of resisting
              arrest, disorderly conduct and harassment.[1]
              [Appellant] was sentenced on December 4, 2012 to
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 5104, 5503(a)(1), and 2709(a)(1), respectively.
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              eighteen (18) months[’] probation for resisting arrest
              and twelve months[’] [concurrent] probation for
              disorderly conduct. No further penalty was imposed
              for harassment.

                    [A n]otice of [a]ppeal to the Philadelphia Court
              of Common Pleas was filed on December 4, 2012.[2]
              [Appellant] received a subpoena to appear in court
              on June 24, 2013 for his trial de novo, but
              [Appellant] failed to appear on that date.
              [Appellant] came to court the next day and claimed
              he did not know he was supposed to be in the court
              on June 24, 2013 despite having been given a
              subpoena for that date at the last listing of the case.
              He stated that he worked from 5:00 a.m. to 7:00
              a.m. on June 24, 2013 and then he went back home.

                    After hearing [Appellant]’s testimony, this
              court dismissed the appeal and ordered that the
              judgment of sentence from the Municipal Court be
              reinstated.

Trial Court Opinion, 1/16/15, at 1-2.

       On July 17, 2013, Appellant filed his timely notice of appeal.3     On

appeal, Appellant raises the following issue for our consideration.

                    Did not the [trial] court violate [Appellant]’s
              constitutional right to a jury trial in dismissing
____________________________________________


2
  Chapter 10 of Pennsylvania Rules of Criminal Procedure governs the
procedure for cases heard in Philadelphia Municipal Courts.              See
Pa.R.Crim.P. 1000-1013. Rule 1001 provides, “[a] Municipal Court case is
any case in which the only offense or offenses charged are misdemeanors …
for which no prison term may be imposed or which is punishable by a term
of imprisonment not more than 5 years ….” Id. at 1001(A). Following
conviction in Municipal Court, a defendant has the right to appeal for a trial
de novo in Philadelphia Court of Common Pleas. Id. at 1006(1)(a).
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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              [Appellant]’s 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, and in fact
              had demanded a jury trial?

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 it was error for the trial court to dismiss

Appellant’s case and reinstate his Municipal Court convictions.                  See

Appellant’s Brief at 8-15. Appellant contends that he demanded a jury trial

and “[m]erely failing to appear for court on one day does not waive or forfeit

that right[.]” Id. at 9.     For the reasons that follow, we disagree.

      Instantly, the following relevant facts are undisputed by the parties.

Appellant was convicted of the aforementioned crimes in Municipal Court,

and he thereafter sought a trial de novo.                     Appellant’s Brief at 4;

Commonwealth’s Brief at 2. A trial date was scheduled for June 24, 2013,


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and Appellant failed to appear to court on that day. Appellant’s Brief at 4;

Commonwealth’s Brief at 2.    On June 25, 2013, Appellant was present in

court and “candidly confessed that he had forgotten about the court date.”

Appellant’s Brief at 4; see Commonwealth’s Brief at 2. The trial court then

dismissed the case pursuant to Rule 1010(B).         Appellant’s Brief at 5;

Commonwealth’s Brief at 3. Rule 1010(B) provides as follows.

           Rule 1010. Procedures for Trial De Novo

                                     …

           (B) 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.

                                     …

Pa.R.Crim.P. 1010(B). The comment to Rule 1010(B) clarifies, “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.” Id. at cmt.

(emphasis added).

     In the case before us, the trial court inquired as to Appellant’s absence

when he appeared the day following his trial date.      N.T., 6/25/13, at 2.

Appellant initially told the trial court, “I didn’t even know [that I was

supposed to be in court].”    Id.   The trial court then asked if Appellant

received a subpoena from the last listing of the case, to which Appellant

responded, “[y]es, but I went to work ….” Id. Appellant explained he left


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work at 7:00 a.m. the morning of his scheduled trial, and “[t]hen I went

back home.” Id. The trial court then dismissed his appeal, “based on the

fact that [Appellant] didn’t show up [on June 24, 2013.]” Id. at 3.

      Instantly, the record amply supports the trial court’s findings that

Appellant was absent from his trial de novo without good cause, and we

discern no abuse of discretion or error of law. See Askins, supra. While

Appellant now attempts to raise the constitutionality of the trial court’s

dismissal, the record is devoid of an objection on this or any basis at the

time of the trial court’s action.   See N.T., 6/25/13, at 1-5.   Accordingly,

Appellant has waived this argument.           See Pa.R.A.P. 302(a) (stating,

“[i]ssues not raised in the lower court are waived and cannot be raised for

the first time on appeal[]”); Commonwealth v. Miller, 80 A.3d 806, 811

(Pa. Super. 2013) (finding that Appellant’s constitutional challenges were

waived for failure to raise them before the trial court).

      Based on the foregoing discussion, we conclude Appellant is not

entitled to relief on his sole issue, and we affirm the trial court’s June 25,

2013 order reinstating Appellant’s September 10, 2012 judgment of

sentence.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2015




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