J-S13009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

GERALD PAUL KRUTH,

                        Appellant                    No. 502 WDA 2014


              Appeal from the Order Entered March 21, 2014
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0002460-2013


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

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 16, 2015

     Appellant, Gerald Paul Kruth, appeals from the trial court’s March 21,

2014 order denying his “Motion to Compel Acceptance of Summary Appeal

for Filing by Court Records” (hereinafter, Motion to Compel).          For the

reasons stated infra, we conclude that the court erred by denying that

motion. Therefore, we vacate the court’s March 21, 2014 order and remand

for further proceedings consistent with this memorandum decision.

     The trial court set forth the procedural history of this case as follows:

           Appellant … was charged by criminal information … with
     one count of [misdemeanor] simple assault, originally filed as a
     private complaint.

          The case was assigned to the Honorable Beth A. Lazzara.
     Judge Lazzara granted the Commonwealth’s motion to amend
     the misdemeanor count of simple assault to a summary count of
     harassment, and to add one summary count of disorderly
     conduct. The trial was scheduled for February 25, 2014, wherein
     Judge Lazzara agreed to sit as a magistrate.
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              On February 25, 2014, the case was reassigned to the
       Honorable Edward J. Borkowski. Appellant proceeded to a trial
       on that date before the [t]rial [c]ourt. At the conclusion of
       trial[,] Appellant was found guilty of the summary count of
       harassment and not guilty of the summary count of disorderly
       conduct.

             That same day, Appellant was sentenced by the Trial Court
       to a period of probation of ninety days.

             Appellant filed a Motion to Compel Acceptance of Summary
       Appeal for Filing by Court Records on March 19, 2014, which was
       denied by the [t]rial [c]ourt on March 21, 2014. The [t]rial
       [c]ourt was not sitting as a magistrate, but was instead sitting as
       the finder of fact and law in a trial of summary offenses.
       Appellant filed a timely notice of appeal on March 27, 2014.[1]

Trial Court Opinion (TCO), 10/15/14, at 2-3 (footnote omitted).

       On April 4, 2014, the trial court issued an order directing Appellant to

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

appeal.    Appellant timely complied with that order on April 11, 2014.      On

October 15, 2014, the trial court issued a Rule 1925(a) opinion concluding

that Appellant waived his appellate issue(s) because his Rule 1925(b)

statement “fails to comply with Rule 1925(b)(4).” TCO at 6.
____________________________________________


1
  Appellant’s notice of appeal states that he is appealing from both his
February 25, 2014 judgment of sentence of 90 days’ probation, as well as
the trial court’s March 21, 2014 order denying his Motion to Compel. While
Appellant should have filed two separate notices of appeal, it is clear from
the issues he asserts herein that he seeks to challenge only the court’s order
denying his Motion to Compel. Accordingly, we will consider Appellant’s
notice of appeal as stemming from the entry of that final order, and not from
his judgment of sentence. See Zokaites v. Pittsburgh Irish Pubs, LLC,
962 A.2d 1220, 1222 (Pa. Super. 2008) (considering an appeal from an
order denying a motion to compel).




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      Herein, Appellant raises two issues for our review:

      1. Has [Appellant] waived the issue of whether he is entitled to
      file a summary appeal to a trial de novo?

      2. Is [Appellant] entitled to file a summary appeal to a trial de
      novo?

Appellant’s Brief at 2.

      Appellant initially challenges the trial court’s determination that he

waived his appellate issue by failing to file a proper Rule 1925(b) statement.

In reaching this conclusion, the trial court began by quoting Appellant’s

multi-page Rule 1925(b) statement, which contains a lengthy narrative of

the procedural history of his case.   The court then set forth the following

excerpt from this Court’s decision in In re A.B., 63 A.3d 345 (Pa. Super.

2013):

             This Court has considered the question of what constitutes
      a sufficient 1925(b) statement on many occasions, and it is well-
      established that Appellant's concise statement must properly
      specify the error to be addressed on appeal. [T]he 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.
      Further, this Court may find waiver where a concise statement is
      too vague. When a court has to guess what issues an appellant
      is appealing, that is not enough for meaningful review.

Id. at 350 (internal citations and quotation marks omitted). After quoting

this passage from In re A.B., the trial court stated that a Rule 1925(b)

statement “should not be redundant or provide lengthy explanations as to

any error.”   TCO at 6 (citing Pa.R.A.P. 1925(b)(4)(iv)).     The court then

concluded that “Appellant’s four-page Concise Statement is substantially the




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same as Appellant’s Motion to Compel. This filing fails to comply with Rule

1925(b)(4), and Appellant’s claim is waived.” Id.

     From the trial court’s opinion, it is not clear whether the court found

Appellant’s Rule 1925(b) statement inadequate because it was overly vague,

or because it was ‘redundant’ and/or excessively lengthy.     In any event,

however, we disagree with the court that Appellant’s Rule 1925(b)

statement was so inadequate as to preclude the court from ascertaining, and

meaningfully reviewing, his appellate claim. To be sure, Appellant did not

format his Rule 1925(b) statement in the typical fashion, and it was

unnecessary for him to include a protracted procedural history of his case.

However, at the close of Appellant’s Rule 1925(b) statement, he declares:

           Therefore, the denial to [Appellant] of his right to file a
     summary appeal for a trial de novo not only violates an on-the-
     record agreement, but also violates the clear dictates of
     Pa.R.Crim.P. [] 454.       As such, Judge Borkowski’s Order
     prohibiting the summary appeal should be reversed, and
     [Appellant] should be entitled to a trial de novo.

Rule 1925(b), 4/11/14, at 3-4 (emphasis omitted). We conclude that this

portion of Appellant’s Rule 1925(b) statement adequately conveyed to the

trial court that Appellant is challenging the court’s denial of his Motion to

Compel because Appellant believes he is entitled to a summary appeal for a

trial de novo.   Therefore, we conclude that Appellant has preserved this

issue for our review, and we will now assess the merits of his argument.

     Appellant maintains that the trial court erred by denying his Motion to

Compel because he is entitled to a summary appeal for a trial de novo for


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two main reasons: (1) there was an on-the-record agreement that Appellant

would be permitted to file such an appeal, and (2) under Chapter 4 of the

Pennsylvania Rules of Criminal Procedure, which governs summary cases, he

was entitled to file a summary appeal for a trial de novo within 30 days of

his conviction.   Namely, Appellant cites Rule 454 of that chapter, which

states, in relevant part:

      (B) … If the defendant pleads not guilty, the issuing authority
      shall try the case in the same manner as trials in criminal cases
      are conducted in the courts of common pleas when jury trial has
      been waived; …

      …

      (F) At the time of sentencing, the issuing authority shall:

      …

          (2) advise the defendant of the right to appeal within 30
          days for a trial de novo in the court of common pleas …[.]

Pa.R.Crim.P. 454(B) and (F)(2).

      In response to Appellant’s arguments, the Commonwealth contends

that Appellant’s “reliance on [Rule] 454 is misplaced[,]” as that rule

“governs cases which originated as summary cases and never were brought

in the Court of Common Pleas.”       Commonwealth’s Brief at 13 (emphasis

added). The Commonwealth avers that because Appellant’s case “originated

as a ‘court case[,]’” it is governed by Chapter 5 of the Rules [of Criminal

Procedure,]” namely Rules 561 and 589.       Id. at 14.    Rule 561 states, in

pertinent part, that “[i]n any case in which all the misdemeanor, felony, and

murder charges are withdrawn pursuant to this rule, any remaining


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summary offenses shall be disposed of in the court of common pleas.”

Pa.R.Crim.P. 561(C) (emphasis added). Rule 589 contains nearly identical

language.     See Pa.R.Crim.P. 589(B) (“In any case in which all the

misdemeanor, felony, and murder charges are withdrawn pursuant to Rule

561, any remaining summary offenses shall be disposed of in the court of

common pleas.”). The Commonwealth maintains that the language of these

rules indicates “that once a matter has left the issuing authority, it is

appropriate that it remain and ‘be disposed of in the court of common

pleas[,]’” regardless of whether the case ultimately involves only summary

offenses. Commonwealth’s Brief at 15. The Commonwealth correctly points

out that “a judge of the Court of Common Pleas may hear a summary case.”

Commonwealth’s Brief at 16-17 (citing Commonwealth v. Ritter, 408 A.2d

1146, 1147 (Pa. Super. 1979)); see also 42 Pa.C.S. § 912 (“Every judge of

a court of common pleas shall have all the powers of a judge or magisterial

district judge of the minor judiciary.”); Commonwealth v. Allem, 532 A.2d

845, 850 (Pa. Super. 1987) (stating “judges of the court of common pleas

are clearly empowered to sit as issuing authorities”).         Finally, the

Commonwealth contends that when a judge of the court of common pleas

presides over such summary cases, he/she does so “as a judge of the Court

of Common Pleas[,]” not as an ‘issuing authority’ or magistrate judge.

Commonwealth’s Brief at 17. As such, Judge Borkowski was not presiding

over Appellant’s case as a magistrate, and Appellant is not entitled to a

summary appeal for a trial de novo.

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      Initially, we agree with the Commonwealth that a court of common

pleas judge may hear a summary case. We also agree that under Rules 561

and 589, a case remains in the court of common pleas when it originates in

that court, yet it evolves into a summary case based on the misdemeanor

and/or felony charges being withdrawn or otherwise eliminated. However,

we disagree with the Commonwealth that when a court of common pleas

judge presides over a summary case in such circumstances, the judge is

precluded from sitting as an ‘issuing authority’ or magistrate judge. Indeed,

the Commonwealth Court of Pennsylvania has held that a court of common

pleas judge presiding in summary cases is necessarily acting as a magistrate

or issuing authority.

      Specifically, in Hufmen v. Board of Probation and Parole, 58 A.3d

860 (Pa. Cmwlth 2012) (en banc), the Commonwealth Court considered a

case involving the following procedural history:

             On September 12, 2007, the [Pennsylvania Board of
      Probation and Parole (Board)] paroled [Hufmen] from a three to
      six-year sentence for possession of a controlled substance with
      intent to deliver. The sentence had a minimum release date of
      December 5, 2008, and a maximum release date of December 5,
      2011. [Hufmen] was assigned to reside in the Philadelphia parole
      district. On January 9, 2011, [Hufmen] was arrested by the
      Radnor Township Police Department and charged with retail
      theft, conspiracy to commit retail theft and resisting arrest, a
      second degree misdemeanor.

            After several continuances, a preliminary hearing was held
      before a magisterial district judge on March 29, 2011. Neither
      [Hufmen] nor his counsel attended the preliminary hearing. The
      magisterial district judge held [Hufmen] for court on the charges
      and transferred the case to the Court of Common Pleas of
      Delaware County (trial court). On June 14, 2011, [Hufmen],

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       under the alias “Karrien A. Sweet,” entered a guilty plea in the
       trial court before the common pleas judge to one count of retail
       theft graded as a summary offense and was sentenced to no
       further penalty.

              On July 22, 2011, [Hufmen] signed a “Waiver of
       Revocation Hearing and Counsel/Admission Form” (waiver form)
       waiving his revocation hearing with the Board. [Hufmen]
       acknowledged in writing on the waiver form that he pled guilty in
       the trial court to the summary charge of retail theft. … By a
       revocation decision mailed September 22, 2011, the Board
       recommitted [Hufmen] as a convicted parole violator to serve six
       months backtime based on his waiver of the revocation hearing
       and admission of his guilty plea of the summary offense of retail
       theft.

              [Hufmen] filed a pro se administrative appeal in which he
       claimed that the Board erred in recommitting him as a convicted
       parole violator. Specifically, he argued that the common pleas
       judge was acting as a magisterial district judge when she
       accepted his guilty plea and, therefore, he was not convicted in a
       court of record. The Board denied his request for administrative
       relief and affirmed its September 16, 2011 decision….

Id. at 861-862 (footnotes omitted).

       Hufmen filed an appeal with the Commonwealth Court, contending

“that the common pleas judge was sitting as a magisterial district judge

when she accepted his guilty plea for retail theft….” Id. at 862. Thus, the

Commonwealth Court was tasked with deciding “[i]n what capacity a court of

common pleas is acting when disposing of a summary conviction….” Id. at

863.2 In assessing this issue, the Court emphasized, inter alia, the language
____________________________________________


2
 The Court noted that this issue was important because “a summary offense
conviction by a magisterial district judge, or a common pleas judge sitting as
a magisterial district judge, is not a conviction in a court of record and[,
consequently,] the Board is not authorized to recommit a parolee as a
convicted parole violator for such a conviction.” Id.



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of Pennsylvania Rule of Criminal Procedure 1002(A), which states that “all

criminal proceedings in which a person is accused only of … non-traffic

summary offenses … shall proceed as provided in Chapter 4 of the Rules of

Criminal Procedure….”3 Id. at 864. The Hufmen Court also reasoned:

              Had [Hufmen] initially only been charged with summary
       retail theft, he would have been tried before a magisterial district
       judge and, if convicted, would not have been recommitted as a
       convicted parole violator. Because he was also charged with a
       misdemeanor, however, the charges were transferred to a
       common pleas judge. Following the rationale of Chesson [v.
       Pennsylvania Bd. of Probation and Parole, 47 A.3d 875, 880
       (Pa. Cmwlth 2012) (holding that “a conviction for a summary
       offense before the Municipal Court of Philadelphia County[, which
       is normally a ‘court of record,’] is the functional equivalent of a
       conviction before a magisterial district judge”), once
       [Hufmen’s] misdemeanor charge was dropped and only a
       summary charge remained, the case proceeded under
       Pa.R.Crim.P. 1002(A), and Chapter 4 of the Rules of
       Criminal Procedure applied. Accordingly, when disposing
       of a summary offense, a common pleas judge is sitting as
       “the issuing authority,” i.e., a magistrate under
       Pa.R.Crim.P. 103.

Id. at 864 (emphasis added).

       While the Commonwealth Court’s decisions in Chesson and Hufmen

are not binding upon this Court, we consider them as persuasive authority.

See Commonwealth v. Rodriguez, 81 A.3d 103, 107 n.7 (Pa. Super.

2013). The rationale expressed by the Commonwealth Court in those cases,

as well as the language of Rule 1002(A), convince us that here, Judge
____________________________________________


3
  Chapter 4 of the Rules of Criminal Procedure governs summary cases,
including a defendant’s “right to appeal within 30 days for a trial de novo in
the court of common pleas….” Pa.R.Crim.P. 454(F)(2).



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Borkowski was necessarily presiding over the disposition of Appellant’s

summary offenses as a magisterial district judge, thereby entitling Appellant

to a summary appeal from his conviction for harassment. Consequently, we

vacate the court’s March 21, 2014 order denying Appellant’s Motion to

Compel, and remand for the court to permit Appellant to file a nunc pro tunc

summary appeal for a trial de novo.

      Order vacated. Case remanded for further proceedings.      Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2015




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