J-S62036-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
MARIE CHAVANNES,                          :
                                          :
                 Appellant                :    No. 472 MDA 2017

          Appeal from the Judgment of Sentence February 15, 2017
               in the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-SA-0000119-2016

BEFORE:     STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 17, 2017

     Marie Chavannes (Appellant) pro se appeals from the judgment of

sentence imposed on February 15, 2017, after her summary appeal was

dismissed for her failure to appear at the hearing. We affirm.

     The trial court provided the following background.

           Appellant … is the owner of a residential property located
     at 813 Spring Street in Wyomissing, Berks County,
     Pennsylvania. On August 18, 2015, Appellant [] was given
     notice of three code violations on her property. On September
     28, 2015, Reading Codes enforcement officer Guido Marte [re-
     inspected] the property and issued three citations for non-
     compliance with local ordinances [(L.O.)]. The citations charged
     Appellant with violating:

            L.O. § 304.2 Failure to maintain or repair gutters and
            downspouts
            L.O. § 304.7 Failure to repaint or repair front porch
            L.O. § 304.10 Failure to install handrail on steps

          On February 25, 2016, Magisterial District Judge Alvin B.
     Robinson found Appellant guilty in absentia of all three code

*Retired Senior Judge assigned to the Superior Court.
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     violations. Each violation carried a fine and costs totaling
     $335.50 each. Appellant has paid $190.00 toward the fines and
     costs owed.

            On March 29, 2016, Appellant filed an appeal with the
     Court of Common Pleas in Berks County. A summary appeal
     trial was scheduled on June 6, 2016, but had to be continued
     until August 1, 2016. On August 1, 2016, the trial was again
     continued until November 7, 2016. On November 7, 2016, the
     summary appeal trial was once again continued to December 14,
     2016. On December 14, 2016[,] the summary appeal trial was
     rescheduled for February 15, 2017. Each continuance was at the
     request of or on behalf of Appellant. Each continuance order,
     including the order dated December 14, 2016[,] states, “No
     motion for continuance will be considered within three business
     days of the scheduled hearing, except for an emergency
     occurring within that time.”

            On February 15, [2017,] Appellant’s counsel, John
     Fielding, appeared to represent her at the summary appeal trial.
     Appellant’s counsel did inform the [trial c]ourt of Appellant’s
     health issues, however, counsel did not express any emergency
     situation which would bar Appellant from appearing as
     scheduled. Appellant’s counsel was not prepared to proceed
     with the trial without Appellant and requested yet another
     continuance on behalf of Appellant. On February 15, 2017, the
     [trial] court dismissed the appeal for failure of Appellant to
     appear.

Trial Court Opinion, 5/12/2017, at 1-2.

     Accordingly,   the   aforementioned   judgment   of   sentence   against

Appellant was entered on that date. Appellant timely filed pro se a notice of

appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

     On appeal, Appellant presents three issues for our consideration.

          1. Did the [trial] court err[] in dismissing [A]ppellant[’s]
     de novo trial while counsel was present on behalf of [Appellant]?




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          2. Did the trial court determine whether [Appellant] had
     adequate cause for her absence?

           3. Did the [trial] court abuse its discretion by not granting
     a continuance sua sponte?

Appellant’s Brief at 5 (suggested answers omitted).

     We consider Appellant’s issues together, as they are interrelated. In

doing so, we bear in mind the following.

            Our standard of review is limited to whether the trial court
     committed an error of law and whether the findings of the trial
     court are supported by competent evidence. The adjudication of
     the trial court will not be disturbed on appeal absent a manifest
     abuse of discretion. An abuse of discretion may not be found
     merely because an appellate court might have reached a
     different conclusion, but requires a result of manifest
     unreasonableness, or partiality, prejudice, bias, or ill-will, or
     such lack of support as to be clearly erroneous.

            Pennsylvania Rule of Criminal Procedure 462 governs de
     novo trials following the appeal of a summary conviction. That
     rule states, in pertinent part, the following:

           Rule 462. Trial De Novo

           (A) When a defendant appeals after the entry of a
           guilty plea or a conviction by an issuing authority in
           any summary proceeding, upon the filing of the
           transcript and other papers by the issuing authority,
           the case shall be heard de novo by the judge of the
           court of common pleas sitting without a jury.

                                      ***

           (D) If the defendant fails to appear, the trial judge
           may dismiss the appeal and enter judgment in the
           court of common pleas on the judgment of the
           issuing authority.

     Pa.R.Crim.P. 462.


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             The Comment to Rule 462 explains that “[p]aragraph (D)
      makes it clear that the trial judge may dismiss a summary case
      appeal when the judge determines that the defendant is absent
      without cause from the trial de novo.” Pa.R.Crim.P. 462, cmt.
      Therefore, before a summary appeal may be dismissed for
      failure to appear, the trial court must ascertain whether the
      absentee defendant had adequate cause for his [or her]
      absence. In the event that good cause is established, the
      defendant is entitled to a new summary trial.

Commonwealth v. Dixon, 66 A.3d 794, 796 (Pa. Super. 2013) (some

citations and quotation marks omitted).

       In Dixon, the Court held that a new trial is required when: “(1) a

trial court dismisses a summary appeal without considering whether the

absentee defendant had cause to justify the absence; and (2) the absentee

defendant presents an affidavit on appeal that (assuming the assertions

delineated in the affidavit are true) presents at least a prima facie

demonstration that cause existed for the absence, rendering that absence

involuntary.” Id. at 797.

      Here,   Appellant     contends   that   she   had   a   “health   emergency”

preventing her appearance at court. Appellant’s Brief at 14. Appellant has

included with this appeal an affidavit where she asserts that she is “a 67

year old elderly woman” suffering “from multiple                health problems.”

Appellant’s Brief at Appendix G. She states that on February 15, 2017, she

was “suffering from high blood glucose[] and hypertension” and was also

“experiencing nausea[] and dizziness.” Id. She suggests that the trial court



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erred by dismissing her appeal without determining whether she had “good

cause.” Appellant’s Brief at 15.

      The trial court offered the following rationale for the dismissal of the

appeal in its opinion.

            In   this    case,   Appellant   had    requested    several
      continuances. The de novo trial was continued four times.
      Appellant’s failure to appear on February 15, 2017 was not
      excused by the appearance of counsel, where counsel was
      present[] only for the purpose of requesting yet another
      continuance. Counsel notified the [trial c]ourt that Appellant has
      health issues, but could not point to a specific cause of
      Appellant’s absence that day. Appellant’s counsel presented no
      explanation to the [trial c]ourt that Appellant had an emergency
      or was in such ill health that she could not be present to try her
      case.

            The [trial c]ourt considered the cause for Appellant’s
      absence, but the vague excuse of “health issues” was not
      convincing where[] Appellant had proper notice of the hearing
      and the [o]rder states that continuance requests will only be
      considered on an emergency basis within three business days of
      the scheduled hearing, and Appellant had requested multiple
      continuances prior to February 15, 2017.

Trial Court Opinion, 5/12/2017, at 4.

      The trial court reached these conclusions after extensive discussion at

the summary appeal hearing.        Attorney Fielding represented to the trial

court that he was with Appellant the day before and “she did not have health

issues.” N.T., 2/15/2017, at 2. The trial court also requested that Appellant

be reached by phone. Attorney Fielding was able to reach Appellant’s son,

who stated that his mother’s “health is preventing her from being [at court]

or speaking on the phone.” Id. at 3.        Additionally, the Commonwealth


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attempted to enter into a settlement agreement, but Appellant did not

authorize Attorney Fielding to accept such an agreement.

      The trial court recognized that it did not have a benefit of an affidavit.

See Trial Court Opinion, 5/12/2017, at 4. However, this Court’s review of

the affidavit provided on appeal reveals no information that was not

available to the trial court at the time it decided to dismiss the appeal rather

than continue the matter. Appellant relates her various health issues, but

does not explain why she was unable to attend the hearing even by

telephone.

      Based upon the trial court’s long history with this case, including the

numerous continuances requested by Appellant, as well as the extent of the

inquiry into why Appellant could not appear, we conclude that the trial court

neither erred nor abused its discretion by dismissing the summary appeal for

Appellant’s failure to appear.     Accordingly, we affirm her judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/17/2017




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