J-S68009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TYRONE MOYER,

                        Appellant                  No. 1066 EDA 2013


     Appeal from the Judgment of Sentence Entered January 29, 2013
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0001476-2013


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED DECEMBER 15, 2015

     Appellant, Tyrone Moyer, appeals from the judgment of sentence

imposed after a municipal court found him guilty of driving under the

influence of alcohol (DUI), 75 Pa.C.S. § 3802(a)(1), and the Philadelphia

Court of Common Pleas quashed Appellant’s appeal when he failed to appear

for his trial de novo. Herein, Appellant seeks to argue, inter alia, that the

trial court erred by quashing his appeal where his failure to appear at the

trial de novo was due to a misunderstanding about the date on which that

proceeding was scheduled to occur. Additionally, Appellant’s counsel, Todd

M. Mosser, Esq., seeks permission to withdraw his representation of

Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), as

elucidated by our Supreme Court in Commonwealth v. McClendon, 434

A.2d 1185 (Pa. 1981), and amended in Commonwealth v. Santiago, 978
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A.2d 349 (Pa. 2009).         After independently reviewing the record, we are

compelled to conclude that Appellant is entitled to a new trial de novo.

Consequently, we vacate Appellant’s judgment of sentence, remand for a

new trial, and deny counsel’s petition to withdraw.

       On December 19, 2012, the municipal court found Appellant guilty of

DUI, which was his first such offense. On February 1, 2013, Appellant filed a

notice of appeal to the Philadelphia Court of Common Pleas. The trial court’s

docket indicates that on February 14, 2013, the Commonwealth filed a

criminal information in accordance with Pa.R.Crim.P. 1010(A)(2).1            The

docket also has an entry, dated February 25, 2013, which simply states

“Hearing Notice.”       However, no notice corresponding with that February

date, or relating to Appellant’s trial de novo, is contained in the certified

record.

       The docket then evinces that on March 22, 2013, the court issued an

order granting the Commonwealth’s motion to quash Appellant’s appeal from

the municipal court’s decision.         That order states, in pertinent part (and

verbatim):

       Case Listed as MC Appeal. Defendant Failed to Appear (good
       service) Commonwealth 1010B Motion for Quash is GRANTED.
____________________________________________


1
  That rule directs that when a defendant files a notice of appeal from a
municipal court decision, “the attorney for the Commonwealth, upon
receiving the notice of appeal, shall prepare an information and the matter
shall thereafter be treated in the same manner as any other court case.”
Pa.R.Crim.P. 1010(A)(2).



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        CP Case is Quashed. MC Sentence to Stand and those financials
        are reinstated.

Trial Court Order, 3/22/13.

        On March 4, 2013, Appellant filed a pro se notice of appeal. Attached

to that notice was a verified statement, in which Appellant declared, inter

alia:

        1. That on March 22, 2013 the Court of Common Pleas of
        Philadelphia Quashed my Notice of Appeal for failure to appear.
        I begged the courts [sic] indulgence in this matter. I entered a
        date or [sic] March 29, 2013 and thought that was the date I
        was supposed to appear.

Appellant’s Notice of Appeal – Verified Statement, 4/4/13, at 2.

        After Appellant filed his notice of appeal, Attorney Mosser entered his

appearance on Appellant’s behalf, and the trial court ordered Appellant to file

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. In

response, Attorney Mosser filed a Rule 1925(c)(4) statement of his intent to

file an Anders/McClendon brief.         The trial court did not issue a Rule

1925(a) opinion.

        On May 20, 2015, this Court dismissed Appellant’s appeal by per

curiam order based on Appellant’s failure to file a brief. However, on May

22, 2015, Attorney Mosser filed an application to reinstate the appeal, and

he also submitted an Anders brief. This Court reinstated Appellant’s appeal

by order dated June 9, 2014, and Attorney Mosser thereafter adhered to this

Court’s directive to file a petition to withdraw to accompany his previously

filed Anders brief. Appellant’s appeal is now ripe for our review.



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     When counsel seeks to withdraw before this Court, we “must first pass

upon counsel's petition to withdraw before reviewing the merits of the

underlying issues presented by [the appellant].” Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).

     Prior to withdrawing as counsel on a direct appeal under
     Anders, counsel must file a brief that meets the requirements
     established by our Supreme Court in Santiago. The brief must:

        (1) provide a summary of the procedural history and facts,
        with citations to the record;

        (2) refer to anything in the record that counsel believes
        arguably supports the appeal;

        (3) set forth counsel's conclusion that the appeal is
        frivolous; and

        (4) state counsel's reasons for concluding that the appeal
        is frivolous. Counsel should articulate the relevant facts of
        record, controlling case law, and/or statutes on point that
        have led to the conclusion that the appeal is frivolous.

     Santiago, 978 A.2d at 361. Counsel also must provide a copy of
     the Anders brief to his client. Attending the brief must be a
     letter that advises the client of his right to: “(1) retain new
     counsel to pursue the appeal; (2) proceed pro se on appeal; or
     (3) raise any points that the appellant deems worthy of the
     court[']s attention in addition to the points raised by counsel in
     the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
     353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
     (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous



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issues overlooked by counsel.”      Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

     In this case, Attorney Mosser’s Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history, he refers to portions of the record that could

arguably support an appeal on Appellant’s behalf, and he sets forth his

conclusion that Appellant’s appeal is frivolous. He also explains his reasons

for reaching that determination, and supports his rationale with citations to

the record and pertinent legal authority. In a letter directed to Appellant,

which Attorney Mosser attached to his petition to withdraw, Attorney Mosser

states that he provided Appellant with a copy of his Anders brief, and he

informs Appellant of the rights enumerated in Nischan.              Accordingly,

counsel has complied with the technical requirements for withdrawal.          We

will now independently review the record to determine if Appellant’s issues

are frivolous, and to ascertain if there are any other non-frivolous issues he

could pursue on appeal.

     We begin by noting that,

     [t]he decision to grant a motion to quash a criminal information
     or indictment “is within the sound discretion of the trial judge
     and will be reversed on appeal only where there has been a clear
     abuse of discretion.” Commonwealth v. Lebron, 765 A.2d 293,
     294 (Pa. Super. 2000). Discretion is abused when the course
     pursued by the trial court represents not merely an error of
     judgment, but where the judgment is manifestly unreasonable or
     where the law is not applied or where the record shows that the
     action is a result of partiality, prejudice, bias or ill will. Lebron,
     765 A.2d at 294-295.


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Commonwealth v. Ripley, 833 A.2d 155, 159 (Pa. Super. 2003).



     Instantly, Attorney Mosser concludes that the trial court did not abuse

its discretion in granting the Commonwealth’s motion to quash Appellant’s

appeal from the municipal court’s decision, as Appellant failed to appear at

the trial de novo.   As Attorney Mosser points out, Pennsylvania Rule of

Criminal Procedure 1010 states that if a “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).     Counsel

states that here, “[i]t was clear from the record that [Appellant] had been

served and was provided adequate notice of the trial date.       The lack of

evidence explaining his absence provided the Common Pleas court with

proper cause to grant the Motion to Quash, dismiss the trial de novo and

reinstate the sentence and financial obligations ordered by the Municipal

Court.” Anders Brief at 9-10.

     Initially, we agree with Attorney Mosser that the record supports a

conclusion that Appellant was served with notice of his trial de novo, based

on the above-quoted portion of Appellant’s verified statement attached to his

notice of appeal, as well as the court’s March 22, 2013 order indicating ‘good

service’ was achieved.   However, Appellant’s verified statement does not

demonstrate that that notice informed him of the correct date of that

proceeding; indeed, his statement could be read as suggesting that the

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notice stated the trial was set to occur on March 29, 2013, rather than March

22, 2013. See Appellant’s Notice of Appeal – Verified Statement, 4/4/13, at

2 (“I entered a date or [sic] March 29, 2013 and thought that was the date I

was supposed to appear.”).

       Moreover, as noted supra, the certified record does not contain a copy

of the actual notice sent to Appellant; as such, we are unable to ensure that

the notice contained the correct trial date.     Pennsylvania Rule of Criminal

Procedure 114 mandates:

       (A) Filing

          (1) All orders and court notices promptly shall be
          transmitted to the clerk of courts' office for filing. Upon
          receipt in the clerk of courts' office, the order or court
          notice promptly shall be time stamped with the date
          of receipt.

          (2) All orders and court notices promptly shall be
          placed in the criminal case file.

Pa.R.Crim.P. 114(A) (emphasis added).

       Again, contrary to the clear dictates of this rule, the Philadelphia

County Clerk of Courts apparently did not place a copy of the notice provided

to Appellant in the criminal case file, as it is not contained in the certified

record.2 Therefore, even if we accepted Appellant was properly served with

notice of the trial de novo, we are unable to confirm that that notice
____________________________________________


2
  Curiously, the record does include four ‘Notices of Trial’ informing Appellant
of the dates scheduled for his trial before the municipal court. Each of those
notices was signed by Appellant indicating his receipt. However, no such
notice regarding Appellant’s trial de novo appears in the record.



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accurately informed Appellant of the date on which that trial was scheduled

to occur. Our inability to verify the accuracy of the notice is not the fault of

Appellant; it is due to an error by the Philadelphia County Clerk of Courts.

Therefore, we conclude that Appellant’s failure to appear at the trial de novo

cannot be the basis for the trial court’s granting of the Commonwealth’s

motion to quash, where the Clerk of Court’s clear violation of Rule 114(A)

precludes us from verifying that Appellant was properly notified of the date

of that proceeding.

      We note that this Court’s rationale in Commonwealth v. Panto, 913

A.2d 292 (Pa. Super. 2006), supports our decision herein.           There, Panto

failed to appear at a trial de novo and the court of common pleas dismissed

her appeal and reinstated the judgment from the municipal court.             On

appeal, Panto argued that she was not properly served with notice that her

trial de novo had been continued, as required by Rule 114(B). Id. at 296.

We agreed, emphasizing that the record failed “to show compliance with

Rule 114’s mandatory (“shall”) service of the order of the court upon an

unrepresented party/Appellant by ‘certified, registered, or first class mail.’”

Id. (citing Rule 114 (B)(3)(a)(v)). We ultimately concluded in Panto that

“[b]ecause service was not made in compliance with Rule 114, it was

improper.” Id. at 297. Accordingly, we held “that the facts and law warrant

a vacation of the judgment of sentence to comply with the service mandate

of Rule 114, which calls for notice of the order granting the continuance of

the trial de novo by certified, registered, or first-class mail.” Id.

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       Here, the language of Rule 114(A) contains the same mandatory

language as that found in the service requirements of Rule 114(B). Because

the Clerk of Courts failed to comply with Rule 114’s requirement that a copy

of the notice be placed in the certified record, we are unable to ensure that

the notice served upon Appellant properly informed him of the date of his

trial de novo. Consequently, the notice of the trial de novo was improper,

and we are compelled to vacate Appellant’s judgment of sentence.             We

remand for a new trial de novo, to be conducted after proper notice is

served upon Appellant and placed in the certified record.       In light of this

disposition, we deny Attorney Mosser’s petition to withdraw.3

       Judgment      of   sentence     vacated.   Case   remanded   for   further

proceedings. Petition to withdraw denied. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2015
____________________________________________


3
  We acknowledge that normally, where counsel is seeking to withdraw but
we conclude that there is an issue of arguable merit, we deny counsel’s
petition and direct him/her to file an advocate’s brief on the client’s behalf.
However, here, we decline to prolong this case by directing Attorney Mosser
to file an advocate’s brief, where it clear on the face of the record that the
Clerk of Court’s failed to adhere to Rule 114(A), and a new trial de novo is
warranted.



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