J-S63019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RONDA MICHALIDES

                            Appellant               No. 40 WDA 2017


      Appeal from the Judgment of Sentence Entered November 30, 2016
               In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-SA-0000060-2016

BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:                      FILED DECEMBER 22, 2017

        Appellant Ronda Michalides appeals from the judgment of sentence

imposed after the summary appeal of her conviction for violation of the

Public School Code’s compulsory attendance requirements.1 We affirm.

        On December 10, 2015, this action was initiated by a private summary

complaint filed by the Forest Hills School District and its dean of students,

Laura Miller.      N.T., 11/30/16, at 5, 12.    The complaint alleged that

Appellant’s child (“the Child”) was truant from school during the 2015-2016

school year. A child is considered truant if he or she has been absent from

school for “three (3) days, or their equivalent, without lawful excuse.” 24

P.S. § 13-1354.          Here, the Child attended a cyber school, and the




____________________________________________
1   24 P.S. § 13-1333(a)(1).
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“equivalent” of a school day occurred if the Child was logged on to the cyber

school for five hours per day. N.T., 11/30/16, at 43.

       On July 12, 2016, Magisterial District Judge Rick Varner found

Appellant2 guilty in abstentia and imposed a $300.00 fine and $84.00 in

costs for a total of $384.00. On August 10, 2016, Appellant appealed her

summary conviction, and a de novo trial was held on November 30, 2016.

       At trial, Ms. Miller testified on behalf of the Commonwealth, stating

that she “oversee[s]” Forest Hills School District’s “cyber academy where

[the Child] was a student.”        N.T., 11/30/16, at 5.   She stated that it was

Appellant’s choice to allow her Child to attend the cyber school.       Id. at 8.

Ms. Miller explained that students who register for the cyber academy “have

to go to the Learning Lamp,” which provides after-school and alternative

education programs for schools, including online learning for the Forest Hills

School District.     Id. at 43.      She continued that, at Learning Lamp, the

students must “pick up their computer and sign all the documents saying

they understand the polices, they received the equipment, they know that

they can’t go on Facebook, that the parent is responsible for the equipment,

et cetera.”    Id.   Ms. Miller confirmed that part of the “policy is that after

receipt of two attendance violation letters for not attending, that [students]

will have to log on for a minimum of five hours[.]” Id.



____________________________________________
2Appellant was pro se at the time of the magistrate judge’s hearing, but is
now represented by counsel for her appeal to this Court.

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     Ms. Miller testified that a parent must obtain Internet access for the

Child and that a parent can request reimbursement for the cost of the

access. N.T., 11/30/16, at 44. Her testimony continued:

     Q     So all [Appellant] had to do was get internet and make
     sure [the C]hild got on and you would reimburse her?

     A     That’s correct.

     Q     And she was explained that?

     A     Yes.

     Q     What happened?

     A       I did not hear from her again. That was around the time
     we had a court hearing with Magistrate Varner. He requested
     the five hours, and then I was working with her Probation Officer
     Maul to try to keep in the loop, because I honestly can’t keep
     track of where she is living or what she is doing. We did a home
     visit, the Learning Lamp and I did, but there was no answer over
     a period of time that we tried to visit the house, because we
     weren’t even sure if she was our student or if she should be
     enrolled in the Conemaugh Valley School District.
                                 *   *    *
     [W]hen there is internet trouble at home, I want to clarify that
     the students are permitted to go to the Learning Lamp. There
     are drop-in hours. . . . They can go and sit with the teacher and
     be tutored.
                                *   *   *
     [W]e were very clear that we provide biweekly progress reports.
     Parents can check and see what their kids are doing. There’s a
     parental portal. They can see how much work they’ve done.
                                 *   *   *
     So there is a lot that can be done. To plead ignorance that the
     work was not being done is not – was inaccurate since we send
     out those reports every two weeks. They’re mailed and emailed.
     If there’s a violation, they’re mailed, and then they’re also
     emailed.

Id. at 45-48.


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      Appellant also testified on her own behalf. She asserted that the Child

“went to live with her dad,” but “[t]he Court made her come back home . . .

[t]o me.” N.T., 11/30/16, at 17. When asked if she would “sit over [the

Child’s] shoulder and make sure she was doing her work,” Appellant

answered, “Not all the time.” Id. at 37. When asked again if she would “sit

with [the Child] when she was on the computer making sure she was doing

her work,” Appellant replied, “Not at all times, but I’m sure the teacher don’t

look over their kids.” Id. at 38. When asked a third time if, “on these days

that [the Child] had to be on the computer for five hours, did you make sure

she sat at the computer for five hours,” Appellant responded, “On those

days, I’m not sure.”    Id. at 39.    Appellant also testified:   “It’s not my

responsibility to educate her. . . And, you know what, I didn’t know all of the

stipulations.” Id. at 40.

      At the conclusion of the de novo trial, Appellant was found guilty and

sentenced to pay a $300 fine and costs. Order, 12/1/16; N.T., 11/30/16, at

50.    However, the trial court suspended the fine, “contingent upon

[Appellant] enrolling [the C]hild in school upon the [C]hild’s release from

placement, and ensuring the child’s regular school attendance.” Trial Ct. Op.

at 1 (citing Order, 12/1/16).

      On December 30, 2016, Appellant filed a timely appeal. In an order

dated and timestamped January 12, 2017, the trial court ordered Appellant

to file a concise statement of errors complained of on appeal (“Concise

Statement”) within twenty-one days of the entry of the order on the docket.

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The docket, however, does not reflect when the court served the order on

Appellant. Pa.R.Crim.P. 114(C)(2)(c). Appellant filed her Concise Statement

on February 3, 2017 – twenty-two days after the entry of the order.

Although Appellant’s Concise Statement was apparently untimely by one

day, we decline to find she has waived her issues because the trial court’s

docket fails to show when the trial court served the order on Appellant. Cf.

In re Johnson, 970 A.2d 433, 439 n.7 (Pa. Super. 2009) (declining to find

waiver for failure to file a timely Rule 1925(b) statement because docket did

not reflect service of the Rule 1925(b) order per Pa.R.C.P. 236(b)).

      Appellant’s pro se Concise Statement, in its entirety, stated:

      This appeal is taken from final Order of a Hearing de novo on
      Summary appeal.

      [Appellant] submits that the evidence presented in this case was
      insufficient to sustain a conviction for the summary offenses,
      verdict was against the weight of the evidence.

      Specifically, the evidence and record in this matter indicates that
      [Appellant]’s child was in Cyber School and was required to be
      signed on during certain hours of the school day. The child was
      signed in doing the hours required. The Court erred in reaching
      a verdict against the weight of the evidence.

Concise Statement, 2/3/17.

      In her counseled brief to this Court, Appellant now presents the

following issue for our review:

      The Trial Court erred in affirming the Appellant’s summary
      conviction of violating 24 P.S. § 13-1333(a)(1) regarding the
      Commonwealth’s compulsory school attendance law when the
      evidence was insufficient to warrant such a conviction where the
      Commonwealth failed to present any evidence that the Appellant
      received proper notice of the charges per 24 P.S. § 13-

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       1333(a)(1)-(3), nor did the Commonwealth present any
       evidence establishing that the Appellant was the custodial
       guardian of the [C]hild in question.

Appellant’s Brief at 4.

       The Commonwealth contends that Appellant’s Concise Statement

challenged the weight of the evidence, while the question posed in her brief

challenges the sufficiency of the evidence. Commonwealth’s Brief at 10-11.

The Commonwealth thus argues that Appellant’s Statement failed to

preserve any challenge to the sufficiency of the evidence. Id. However, as

Appellant was pro se at the time she filed her Concise Statement, and as the

Statement includes the claim that “the evidence presented in this case was

insufficient to sustain a conviction for the summary offense[],” we find that

Appellant has preserved her sufficiency claim and will address this issue on

the merits.3

       Our standard of review when examining a challenge to the sufficiency

of the evidence is as follows:

       “Whether sufficient evidence exists to support the verdict is a
       question of law; our standard of review is de novo and our scope
       of review is plenary.” Commonwealth v. Giron, 155 A.3d 635,
       638 (Pa. Super. 2017) (citation omitted).          In assessing
____________________________________________
3  The Commonwealth also wrote in its brief:         “The trial court never
addressed the two elements complained of on appeal because it lacked a
proper Rule 1925 statement from [Appellant]. Accordingly, the issues,
which have been asserted for the first time on appeal, are waived.”
Commonwealth’s Brief at 11. To the extent that the Commonwealth is
claiming that Appellant cannot now specifically challenge whether she
“received proper notice of the charges” and whether “evidence establish[ed]
that the Appellant was the custodial guardian” of the Child, Appellant’s Brief
at 4, we find that Appellant’s broadly phrased sufficiency challenge in her
pro se Concise Statement encompasses these two more specific issues.

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      Appellant’s sufficiency challenge, we must determine “whether
      viewing all the evidence admitted at trial in the light most
      favorable to the [Commonwealth], there is sufficient evidence to
      enable the fact–finder to find every element of the crime beyond
      a reasonable doubt.” Commonwealth v. Williams, 153 A.3d
      372, 375 (Pa. Super. 2016) (citation omitted). “The evidence
      need not preclude every possibility of innocence and the fact-
      finder is free to believe all, part, or none of the evidence
      presented.” Commonwealth v. Kennedy, 151 A.3d 1117,
      1121 (Pa. Super. 2016) (citation omitted).

Commonwealth v. Hutchison, 164 A.3d 494, 497 (Pa. Super. 2017)

(alterations in original).

      At the time that the private summary complaint was filed against

Appellant on December 10, 2015, Section 1333(a) of the School Code, 24

P.S. § 13-1333(a), read as follows:

      (1) Every parent, guardian, or person in parental relation,
      having control or charge of any child or children of
      compulsory school age, who shall fail to comply with the
      provisions of this act regarding compulsory attendance, shall on
      summary conviction thereof, be sentenced to pay a fine, for the
      benefit of the school district in which such offending person
      resides, not exceeding three hundred dollars ($300) and to pay
      court costs or be sentenced to complete a parenting education
      program offered and operated by a local school district, medical
      institution or other community resources, and, in default of the
      payment of such fine and costs or completion of the parenting
      program by the person so offending, shall be sentenced to the
      county jail for a period not exceeding five (5) days. . . . Before
      any proceedings are instituted against any parent, guardian, or
      person in parental relation, for failure to comply with the
      provisions of this act, the district superintendent, attendance
      officer, or secretary of the board of school directors, shall give
      the offending person three (3) days’ written notice of such
      violation. If, after such notice has been given, the provisions of
      this act regarding compulsory attendance are again violated by
      the persons so notified, at any time during the term of
      compulsory attendance, such person, so again offending, shall
      be liable under the provisions of this section without further
      notice.

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       (2) The child and every parent, guardian or person in parental
       relation must appear at a hearing established by the district
       justice. If the parent, guardian or person in parental relation
       charged with a summary offense under this subsection shows
       that he or she took every reasonable step to insure attendance
       of the child at school, he or she shall not be convicted of the
       summary offense.

       (3) Upon a summary conviction, the district justice may
       suspend, in whole or in part, a sentence in which a parent,
       guardian or person in parental relation is summoned to pay as
       required under this section: Provided, That the child no longer is
       habitually truant from school without justification.

Id. (emphasis added)

       Appellant contends that “the Commonwealth failed to present any

evidence that the Appellant received proper notice of the charges.”

Appellant’s Brief at 7.       In making this argument, Appellant relies on an

amended version of Section 1333 that was enacted on November 3, 2016,

and became effective for the 2017-2018 school year. The amended statute

contains more detailed notice requirements than the version of the statute

that was in place at the time that the private summary complaint was filed.4

To the extent Appellant challenges the failure to comply with those newer

requirements, see Appellant’s Brief at 8, her claim is meritless.



____________________________________________
4 The amended version of the statute requires that the notice to a biological
or adoptive parent: “(1) shall include a description of the consequences that
will follow if the child becomes habitually truant; (2) shall be in the mode
and language of communication preferred by the person in parental relation;
[and] (3) may include the offer of a school attendance improvement
conference[.]” 24 P.S. § 13-1333(a)(1)-(3).


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      If Appellant is claiming that she never received any written “notice of

alleged violations . . . required to convict a parent of truancy of their child,”

Appellant’s Brief at 8, such a claim is belied by the record.                The

Commonwealth points out that Ms. Miller “testified that notice of attendance

violations are mailed and emailed.” Commonwealth’s Brief at 7 (emphasis

deleted) (citing N.T., 11/30/16, at 48). The record contains uncontradicted

testimony by Ms. Miller that the school “provide[s] biweekly progress

reports,” which are “sen[t] out . . . every two weeks” by “mail[] and email[].

If there’s a violation, they’re mailed, and then they’re also emailed.” N.T.,

11/30/16, at 47-48. The trial court referenced these notifications. See Trial

Ct. Op. at 4. The first component of Appellant’s challenge to the sufficiency

of the evidence therefore has no merit.

      Appellant also claims that the Commonwealth failed to establish that

the Appellant was the custodial parent of the Child. Appellant’s Brief at 11.

This assertion also is belied by the record and, indeed, is contradicted by

Appellant’s own testimony that the Child was living with her.              N.T.,

11/30/16, at 17.      Ms. Miller testified that Appellant was making the

educational decisions for the Child, including the choice “to allow [the Child]

to attend cyber school.” Id. at 8. Appellant presented no evidence that any

other party had custody of the Child during the 2015-2016 school year. See




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generally id. at 15-42. Accordingly, the second component of Appellant’s

challenge to the sufficiency of the evidence likewise merits no relief.5

       In summary, we cannot conclude, upon viewing all the evidence

admitted at trial in a light most favorable to the Commonwealth, that there

was insufficient evidence to support the verdict.

       Judgment of sentence affirmed.




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5 To the extent Appellant presents a broader challenge to the sufficiency of
the evidence, we reject that contention on the basis of the well-reasoned
opinion by the Honorable David J. Tulowitzki, who stated:

       [A]t trial de novo, the Commonwealth offered considerable
       testimony from Laura Miller, Dean of Students for the school
       district where [the C]hild attended, as to the [C]hild’s failure to
       either attend school, or log on and actively participate in cyber
       school for the requisite number of hours/day. Ms. Miller also
       testified as to the school’s willingness to supply the student’s
       computer, internet access, and tutoring/assistance. . . . In
       response, [Appellant] admitted that she did not sit with her
       daughter at all times[,] N.T.[,] 11/30/16, [at] 37-38[,] and did
       not ensure that her daughter logged on for 5 hours each day[.
       Id. at 39]. Additionally, [Appellant] stated that “[i]t’s not my
       responsibility to educate her . . . ,” and that she “didn’t know all
       of the stipulations[.” Id. at 40.]

       Given these facts, although we believe that [Appellant] tried to
       ensure her daughter’s attendance, she did not try hard enough,
       and admitted as much. The record overwhelmingly supports
       [Appellant]’s conviction, and is neither weak nor inconclusive.

Trial Ct. Op. at 4.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




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