J-A18002-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

SHAWN CRAWFORD

                            Appellant              No. 1221 WDA 2016


             Appeal from the Judgment of Sentence July 20, 2016
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-SA-0000075-2016


BEFORE: BOWES, LAZARUS, AND OTT, JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 17, 2017

       Shawn Crawford appeals from judgment of sentence of fines and costs

imposed after he was convicted of various summary violations under the

Dog Law.1 We affirm.

       On August 26, 2015, Appellant’s German Shepard dog named

“Roscoe” seriously injured a dog owned by James Record.          The incident

occurred off Appellant’s property and Roscoe was unrestrained.    The    day

after the incident, Appellant relinquished ownership of Roscoe to the

____________________________________________


1
  The charges are: (1) harboring a dangerous dog (3 Pa.C.S. § 459-502-A
(a)(1)(ii)); (2) unlawful confinement and control (3 Pa.C.S. § 459-
305(a)(3)); (3) failure to properly license dog (3 Pa.C.S. § 549-201(a)); (4)
failure to vaccinate against rabies (3 Pa.C.S. § 455.8(a)(1)).
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Washington Area Humane Society (“the Humane Society”).          The Humane

Society evaluated Roscoe and found that he was a good candidate for

adoption.   Within a few weeks, a family that lived outside Fayette County

(“New Owners”) adopted Roscoe.

      In October 2015, Mr. Record sent a certified letter to Appellant asking

him to pay $5,000 in veterinarian bills.    Appellant did not respond.     On

March 17, 2016, Fayette County Animal Control Officer Gary L. Hoffman filed

a criminal complaint against Appellant alleging numerous summary offenses

under the Dog Law.    All charges were based on contemporaneous reports

from the police and animal control authorities. After one postponement, the

hearing took place on May 4, 2016, but Appellant did not appear. Based on

Mr. Record’s uncontested testimony, Appellant was found guilty, and the

magisterial district justice awarded restitution in the amount of $5,700, plus

costs and fines.

      Appellant filed a timely appeal to the Court of Common Pleas on May

31, 2016.    A motion to vacate the charges was filed by Attorney Molly

Maguire Gaussa on behalf of New Owners. On June 7, 2016, the trial court

held a hearing on the motion. Appellant attended but was unrepresented.

New Owners maintained that they were interested parties as they did not

want the dangerous dog label to follow Roscoe. The trial court denied the

motion.




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      At that hearing, Attorney Gaussa made an oral motion for continuance

of the trial because she was unavailable on the scheduled trial date.    The

trial court initially indicated that it would entertain a continuance to

accommodate Attorney Gaussa.         However, after realizing that Attorney

Gaussa was representing New Owners, not Appellant, the trial court denied

the motion, finding that New Owners lacked standing to seek a continuance.

At the conclusion of that hearing, Attorney Gaussa expressed a willingness

to represent Appellant at trial, pro bono.

      On July 8, 2016, Appellant filed a pro se “routine” motion for

continuance of the July 20, 2016 trial without obtaining the Commonwealth’s

consent.   The trial court denied the motion without prejudice on July 11,

2016, because local rules require parties to file a “priority” motion for

continuance, which requires a hearing, when they do not have the opposing

party’s consent. Appellant did not seek the consent of the Commonwealth

or file a priority motion and, consequently, the case proceeded to trial as

scheduled on July 20, 2016.

      As trial commenced, Attorney Gaussa had not entered her appearance

as Appellant’s attorney of record. Appellant appeared pro se at trial and did

not contest his guilt. The trial court asked Appellant if he had reached any

agreement with the Commonwealth, to which Appellant replied that they had

discussed the fines.   Appellant represented to the court that he wanted to

contest the $5,700 restitution award lodged against him. At this point in the

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proceedings, the trial court asked Officer Hoffman to explain why the

magisterial district court had ordered restitution. Following his explanation,

the trial court asked Appellant if his challenge was limited to the amount of

the restitution fees, to which Appellant replied in the affirmative. The trial

court found Appellant guilty and reinstated the sentence imposed by the

magisterial district justice with regard to fines and costs, but vacated the

restitution award. No post-sentence motion was filed.

      On August 16, 2016, Attorney Gaussa entered her appearance on

behalf of Appellant and filed this timely appeal.   That same day, the trial

court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal within twenty-one days.          When Appellant

failed to file a Rule 1925(b) concise statement, the trial court filed a

Statement in Lieu of Opinion on September 16, 2016, urging this Court to

dismiss the appeal since all issues were waived due to Appellant’s failure to

file the Rule 1925(b) statement.    Appellant filed his Rule 1925(b) concise

statement the same day, prompting the trial court to issue a supplemental

opinion on October 20, 2016, addressing the issues identified therein “[i]n

the event that the Superior Court addresses Appellant’s claims.” Trial Court

Supplemental Opinion, 10/20/16, at 1.

      Appellant presents the following issues for our review:

      1. Whether the trial court erred and/or abused its discretion
         when it denied [Appellant] due process under the



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         Pennsylvania Constitution and the Constitution of the United
         States?

      2. Whether the trial court was without jurisdiction over this case
         as the subject of the criminal charges, the dog, was not
         owned by [Appellant] at the time charges were filed nor had
         the dog been kept in Fayette County for over seven months
         when the charges were filed against [Appellant]?

      3. Whether the trial court erred and/or abuse[d] its discretion in
         admitting irrelevant and unfairly prejudicial evidence without
         defense counsel present, [when] by prior appearances on the
         issue at hand the court was aware of the defense counsel on
         this case and the circumstances for the defense counsel's
         unavailability the date of the scheduled summary appeal
         trial?

      4. Whether the Court erred and/or abused its discretion in
         denying Appellant[’s] pro se request[] for a continuance prior
         to the trial date and by not affording Appellant the
         opportunity for a continuance at the time of the trial to allow
         his counsel to be present as the circumstances surrounding
         counsel's unavailability were known to the court?

      5. Whether the court erred and/or abused its discretion in
         granting counsel's request for a continuance dated June 7,
         2016 in motions court then proceeded to deny Appellant's
         direct request for a continuance?

      6. Whether the trial court erred and/or abused its discretion in
         allowing the Appellant to proceed without counsel and enter
         into a guilty plea without counsel present or discussing with
         counsel, as this action waived his Constitutional right to be
         confronted by his accuser and the accuser was not present on
         the date of the trial?

Appellant’s brief at 8-10 (unnecessary capitalization omitted).

      Preliminarily, we must address the effect of Appellant’s failure to

timely comply with Pa.R.A.P. 1925(b), which is a prerequisite to appellate

merits review. Attorney Gaussa entered her appearance and filed the appeal

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on Appellant’s behalf. Thus, Appellant was represented by counsel when the

Rule 1925(b) statement was ordered.          Counsel’s failure to file a Rule

1925(b) statement has been held to constitute per se ineffective assistance

of counsel, and the remedy is to remand to permit the nunc pro tunc filing of

such a statement and to give the trial court the opportunity to address the

issues raised therein.    See Pa.R.A.P. 1925(c)(3).     Here, however, as in

Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009), counsel did

not completely fail to file a Rule 1925(b) statement. Rather, the statement

was untimely filed.     As we recognized in Burton, the untimely filing of a

Pa.R.A.P. 1925(b) statement on behalf of a defendant seeking to appeal is

the equivalent of a complete failure to file because it results in waiver of all

issues on appeal without any reasonable basis. However, where a statement

has been filed, albeit late, and the trial court has issued an opinion

addressing the issues raised, remand would not serve any purpose. Thus,

we held in Burton that, in such circumstances, this Court may decide the

appeal on the merits.

      That is precisely the situation herein. Counsel was per se ineffective in

failing to timely file the Rule 1925(b) statement.     However, since such a

statement was filed and the trial court addressed the issues raised therein,

we will proceed to the merits.

      Appellant alleges first that he was deprived of due process and his

right to counsel because the court denied his request for continuance and

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failed to inform him of the charges against him.       In his Pa.R.A.P. 1925(b)

statement, Appellant purported to preserve this alleged error as follows:

“Appellant was denied due process.” The trial court found this statement too

vague to address, and dismissed it as meritless on that basis. We concur.

      We have explained that a Rule 1925(b) statement “must properly

specify the error to be addressed on appeal.” Commonwealth v. Hansley,

24 A.3d 410, 415 (Pa.Super. 2011). “The Rule 1925(b) statement must be

specific enough for the trial court to identify and address the issue an

appellant wishes to raise on appeal.” Id. When a court has to guess what

issues an appellant is appealing, that is not enough for meaningful review.”

Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super. 2001).                   “A

Concise Statement which is too vague to allow the court to identify the

issues raised on appeal is the functional equivalent of no Concise Statement

at all.” Id. at 686-87.

      In the instant case, Appellant’s Rule 1925(b) concise statement

vaguely levels the accusation that there was some due process violation at

some point in time. It was not specific enough to allow for a cogent analysis

by the trial court. We find Appellant’s first issue waived for lack of specificity

in Appellant’s 1925(b) concise statement.          See Pa.R.A.P. 1925(b)(4).

However, to the extent that Appellant’s due process claim overlaps other

issues specifically articulated in his Rule 1925(b) concise statement and

raised herein, we will address his concerns.

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       Second, Appellant challenges the Fayette County Court of Common

Pleas’ jurisdiction to hear this case.2          He alleges that since Roscoe was

owned by persons who did not reside in Fayette County at the time charges

were filed, Fayette County lacked jurisdiction.          This challenge is without

merit.

       All courts of common pleas have statewide jurisdiction over any case

arising under the Crimes Code.            Commonwealth v. Bethea, 828 A.2d

1066, 1074 (Pa. 2003).              Appellant’s complaint actually resembles a

challenge to venue, the procedural protection designed so that a party is

tried in the court closest to where the crime occurred because the evidence

and witnesses are most likely to be located there. Id. Venue is generally

appropriate in the court with the closest geographical connection to the

events at issue.      Commonwealth v. Brookins, 10 A.3d 1251, 1258-59

(Pa.Super. 2010) (citing Bethea, supra at 1075).

       The facts of the instant case are undisputed.           At the time of the

incident, Appellant owned Roscoe.                Roscoe escaped from Appellant’s

residence and attacked Mr. Record’s dog, all within Fayette County. Further,

a Fayette County animal control officer filed the private complaint. Thus, the

____________________________________________


2
  As part of his challenge to jurisdiction, Appellant challenges his conviction
as a dog owner under the definition of owner in the Pennsylvania Dog Law, 3
P.S. § 459-502(a)(3), which he maintains is unconstitutionally vague. This
challenge, asserted for the first time on appeal, is waived.



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court with the closest geographical connection to the events at issue was the

Fayette County Court of Common Pleas and the venue herein was proper.

      In this third issue, Appellant alleges that the trial court erred in

permitting   Officer   Hoffman    to   offer   hearsay   testimony   without   the

administration of an oath.       Appellant’s brief at 28-29; Pa.R.E. 603.      He

contends that this violated the Confrontation Clause and the Pennsylvania

Rules of Evidence’s prohibition against hearsay testimony. Since Appellant

did not object at the time, he failed to preserve the issue for appellate

review. However, Appellant attributes his failure to object to the fact that he

was wrongfully denied his right to counsel and “vulnerable.”          Appellant’s

brief at 29. This contention, together with Appellant’s fourth issue, that the

court abused its discretion in denying a continuance to permit counsel to be

present at the summary trial, relate to Appellant’s final issue: that he was

denied the right to counsel. For ease of disposition, we address Appellant’s

sixth issue first: the right to counsel.

      Appellant argues that the trial court erred by allowing him to proceed

without counsel.    Appellant’s claim, at its essence, is that he should have

been afforded counsel to advise him to contest the district justice’s guilty

verdict. He suggests that if he had counsel at the summary trial, counsel

might have brought a motion to dismiss or advised Appellant to proceed

differently. See Appellant’s brief at 40. He avers that the trial court erred

by failing to advise him of his right to counsel or appointing counsel on his

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behalf or continuing the case until counsel could be present. Furthermore,

he contends that his lack of counsel resulted in the Commonwealth’s

introduction of hearsay evidence, depriving him of his right to confront his

accuser. For the following reasons, Appellant’s claims lack merit.

       It is well-settled that, “[g]enerally, there is ‘no requirement, either

under the United States Constitution or under the Pennsylvania Constitution,

that   defendants   in   all    summary      cases   be    provided    with   counsel.’”

Commonwealth v. Smith, 868 A.2d 1253, 1256 (Pa.Super. 2005) (quoting

Commonwealth v. Long, 688 A.2d 198, 201 (Pa.Super. 1996)).                           An

indigent defendant charged with a summary offense is entitled to appointed

counsel   where     there      is   a   reasonable   likelihood   of    imprisonment.

Pa.R.Crim.P. 122, 454(A)(2)(b). Further, for a summary trial, a defendant is

only entitled to be advised of a right to counsel if there is “a reasonable

likelihood of a sentence of imprisonment or probation.”                   Pa.R.Crim.P.

454(A)(2).   A reasonable likelihood of imprisonment or probation requires

more than the mere possibility under the statute. See Commonwealth v.

Blackham, 909 A.2d 315, 318 (Pa.Super 2006) (citing Argersinger v.

Hamlin, 407 U.S. 25 (1972)).

       The statute under which Appellant was charged allows for a sentence

of no more than ninety days imprisonment.                 3 Pa.C.S. § 459-903(b)(1).

However, the Commonwealth did not seek imprisonment or probation, the

magisterial district justice did not sentence Appellant to imprisonment, and

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the trial court clearly had no interest in sentencing Appellant to a term of

imprisonment.      In fact, as noted supra, the Commonwealth and Appellant

indicated to the trial court that the concern was the restitution, not the

underlying charges. N.T., 7/20/16, at 3, 5, 8. The trial court vacated the

restitution award. Id. at 8.

       Appellant does not offer any support for his contention that he was

constitutionally entitled to counsel at his summary trial. He argues only that

he had the right to present his own defense and the right to confront the

witnesses against him, which no one contests. In this case, there was no

reasonable likelihood of a sentence of imprisonment or probation and

Appellant did not receive a sentence of imprisonment or probation. 3 Thus,

he was not entitled to counsel or to be advised by the trial court of any right

to counsel, and the trial court did not err by proceeding without counsel

present.

       Nor did the absence of counsel result in any violation of the

Confrontation Clause. The Confrontation Clause of the Sixth Amendment of

the United States Constitution entitles a criminal defendant to an opportunity

to   challenge     the   evidence      and     witnesses   presented   against   him.
____________________________________________


3
   While not dispositive, the fact that Appellant was not sentenced to a term
of imprisonment or probation is probative.          See Commonwealth v.
Blackham, 909 A.2d 315, 318 (Pa.Super. 2006) (listing the fact that the
appellant was not sentenced to imprisonment and only received fines as a
factor in its Pa.R.Crim.P. 122 analysis).



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U.S.Const.Amend. VI; see Commonwealth v. Brown, 139 A.3d 208, 212

(Pa.Super. 2016). The Confrontation Clause applies to witnesses providing

testimony for the purposes of establishing or proving a fact in the case

against the accused. Id. (citing Crawford v. Washington, 562 U.S. 36, 51

(2004)).       Thus, in this case, Appellant had the right to challenge any

evidence or testimony adduced at trial for the purpose of proving his guilt,

although he chose not to do so. He only sought relief from the restitution

award.

         As trial commenced, the Commonwealth represented to the court that

it had worked out a resolution with Appellant.       Id. at 3.   The court then

inquired of Appellant whether he was represented by Ms. Gaussa. Appellant

informed the court that Ms. Gaussa “ended up taking my case pro bono, but

. . . she ended up leaving to get married and she’s out.”             Id.   Upon

confirming that Attorney Gaussa never entered an appearance of Appellant’s

behalf, the court asked Appellant whether he had negotiated an agreement

with the Commonwealth. Appellant acknowledged that they had discussed

the fines but told the court that, “the fines ain’t really the problem.      It’s

mainly the $5,700 vet bill.”     Id. The court told Appellant that was a civil

matter and that he was not going to order Appellant to pay the veterinary

bills.   Id.   Appellant questioned the effect of the district justice’s order to

pay the $5,700 bill.




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      At that point, the court turned to Officer Hoffman and asked him if he

understood what Appellant was saying about restitution. The officer advised

the court that the owner of the dog that was attacked testified that he

incurred $5,700 in damages to his dog.           Id. at 6.   The district justice

imposed fines, costs, and the entire amount of the veterinary bill as

restitution.   The trial court and the Commonwealth agreed that the

veterinary bills were a civil matter.

      The trial court specifically asked Appellant whether he was challenging

the underlying charges:

      The Court: All right, so Mr. Crawford, you’re not disputing the
      allegations that, what happened with the dog, you just don’t
      want to pay the vet bill basically? That’s your issue?

      The Defendant: Basically, yes.

Id. at 8.

      The record reveals that Officer Hoffman did not “testify” or offer

evidence regarding the charges. The officer was not sworn in as a witness

because there was no need for his testimony. Furthermore, his response to

the trial court was not “hearsay” as it was not elicited to establish

Appellant’s guilt or innocence. Since Appellant did not contest the charges,

the Commonwealth did not present a case against Appellant and no evidence

was adduced at trial to prove Appellant’s guilt. There were no witnesses to

confront as no evidence or testimony was presented to prove facts tending

to establish his guilt.   See Crawford, supra, at 51 (the Confrontation

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Clause applies to witnesses who bear testimony for the purpose of

establishing some fact establishing the guilt of the accused).             Thus,

Appellant’s Confrontation Clause rights were neither implicated nor violated.

The trial court granted Appellant’s request for relief from restitution, but

upheld the district justice’s finding of guilt. Id.

      Since Appellant was not legally entitled to counsel, the denial of the

continuances that would have allowed counsel to attend the summary trial

did not implicate that right. To the extent that Appellant simply alleges that

the trial court erred in denying both Attorney Gaussa’s oral request for a

continuance and Appellant’s subsequent pro se request for a continuance,

we address it on that basis.

      "The grant or denial of a motion for a continuance is within the
      sound discretion of the trial court and will be reversed only upon
      a showing of an abuse of discretion."         Commonwealth v.
      Boxley, 948 A.2d 742, 746 (Pa. 2008). "An abuse of discretion
      is not merely an error of judgment; rather discretion is abused
      when the law is overridden or misapplied, or the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias, or ill will, as shown by the evidence or the
      record[.]" Id. Moreover, "[a] bald allegation of an insufficient
      amount of time to prepare will not provide a basis for reversal of
      the denial of a continuance motion." Commonwealth v. Ross,
      57 A.3d 85, 91 (Pa.Super. 2012). "An appellant must be able to
      show specifically in what manner he was unable to prepare for
      his defense or how he would have prepared differently had he
      been given more time. We will not reverse a denial of a motion
      for continuance in the absence of prejudice.” Id.

Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.Super. 2014)

(internal parentheticals omitted).



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       Attorney Gaussa, appearing as counsel for New Owners, orally

requested a continuance of the summary trial at the June 7, 2016 motions

court hearing.     Attorney Gaussa was not Appellant’s counsel, and had no

standing to seek a continuance. Appellant maintains, however, that because

the trial court initially intimated a willingness to change the trial date to

accommodate Attorney Gaussa’s schedule, it abused its discretion when it

later denied the request.

       The trial court explained the reasons why it changed its mind

regarding Attorney Gaussa’s requested continuance:

       [T]his court only entertained Attorney Gaussa’s oral motion for
       continuance during motions court on June 7, 2016 because this
       court was under the impression that she would represent
       Appellant. However, since Attorney Gaussa only represented the
       subsequent dog owners and not Appellant, then the subsequent
       dog owners lacked standing to request a continuance in this
       matter.

Trial Court Supplemental Opinion, 10/20/16, at 6 (unnecessary capitalization

omitted). Thus, the court likely would have granted the continuance if the

moving party had standing and if Attorney Gaussa was Appellant’s counsel of

record. We find no abuse of the trial court’s discretion in its denial of this

request for continuance.4


____________________________________________


4
  Arguably Appellant does not make the requisite showing of prejudice due
to the denial. See Commonwealth v. Antidormi, 84 A.3d 736, 745-46
(Pa.Super. 2014). He sought relief from the restitution that had been
(Footnote Continued Next Page)


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      Appellant maintains further that the denial of his pro se request for a

continuance constituted an abuse of discretion because it was based on a

local policy.    In support of his position, Appellant cites our sister court’s

decision in Gillespie v. Department of Transportation, 886 A.2d 317

(Pa.Cmwlth. 2005), which while not binding, may be cited as persuasive

authority.      See Little Mt. Cmty. Ass’n v. S. Columbia Corp, 92 A.3d

1191, 1198 n.14 (Pa.Super. 2014) (quoting In re Barnes Foundation, 74

A.3d 129, 134 n.4 (Pa.Super. 2013)).             In Gillespie, the trial court blindly

adhered to a policy of only allowing continuances where both parties agreed.

The Commonwealth Court held that the trial court abused its discretion

because it did not exercise any discretion at all.

      The Fayette County policy herein is inapposite.              As the trial court

explained, there are two types of continuance motions, “routine” and

“priority.” See Trial Court Supplemental Opinion at 5. When both parties

agree to a continuance, a routine motion so stating is filed and ruled upon

without a hearing. Id. In the event one or more parties do not consent to

the continuance, a priority motion must be filed and presented to the court

for a ruling on the motion. Id. In this case, Appellant filed a routine motion

but without the Commonwealth’s consent.               Id.   Unlike the trial court in

                       _______________________
(Footnote Continued)

imposed by the magisterial district judge. The trial court granted him the
relief he sought.



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Gillespie, the Fayette County Court of Common Pleas does not have a

“standing policy that all parties must agree to a continuance.”        Gillespie,

supra at 319. Rather, when all parties do not consent, the trial court must

exercise its discretion and determine whether to grant a motion for

continuance. Appellant’s failure to follow the proper procedure deprived the

trial court of the opportunity to exercise its discretion. This claim fails.

      For all of the foregoing reasons, no relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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