J-S84029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANDRE WILLIAMS

                            Appellant                 No. 2127 EDA 2015


          Appeal from the Judgment of Sentence Dated June 17, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003698-2015


BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                         FILED FEBRUARY 10, 2017

        Appellant, Andre Williams, appeals from the order of the Court of

Common Pleas of Philadelphia dismissing his appeal for a trial de novo, and

reinstating the judgment of sentence imposed by the Municipal Court of

Philadelphia.1 We affirm.

        The Court of Common Pleas summarized the procedural history of this

case as follows:

          On April 8, 2015, the matter of the Commonwealth of
        Pennsylvania versus [Appellant] was heard in the Municipal
        Court of Philadelphia . . . on the charges of possession of an
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  We note that Appellant has another appeal, at No. 2266 EDA 2015, in
which he raises this same issue with respect to a similar disposition at a
different Court of Common Pleas docket number, CP-51-CR-0003979-2015.
J-S84029-16


      instrument of crime and terroristic threats. That court found
      [Appellant] guilty of terroristic threats, and imposed a sentence
      of six (6) to twelve (12) months of incarceration with immediate
      parole after six (6) months followed by twelve (12) months of
      reporting probation. [Appellant] filed a Notice of Appeal for a
      trial de novo before the Court of Common Pleas that same day.

         On April 30, 2015, [Appellant] was scheduled to appear
      before this court for his Formal Arraignment. On that date,
      [Appellant] failed to appear and this court issued a subpoena
      instructing [him] to return to this court for trial on June 17, 2015
      at 9:00 a.m. Defense attorney Michael Sanuck accepted service
      on behalf of [Appellant].

         On June 17, 2015, [Appellant] failed to appear for trial. At
      approximately 11:04 a.m., the court dismissed the appeal
      pursuant to Pennsylvania Rule of Criminal Procedure 1010(B),
      adjudicated [Appellant] guilty and reinstated the Municipal Court
      sentence of six (6) to twelve (12) months of incarceration with
      immediate parole after six (6) months followed by twelve (12)
      months of reporting probation. A bench warrant was issued that
      same day and later lifted by the Honorable Harvey W. Robbins in
      Municipal Court. [Appellant] filed a timely Notice of Appeal.
      After receiving the notes of testimony of the June 17, 2015
      hearing as ordered by [Appellant], a timely Statement of Errors
      in accordance with Pennsylvania Rule of Appellate Procedure
      1925(b) was filed.

Trial Court Opinion, 12/16/15, at 1-2.

      On appeal, Appellant presents a single issue for our review:

             Did not the Court of Common Pleas violate [Appellant’s]
      constitutional right to a jury trial in dismissing [his] trial de novo
      and reinstating his Municipal Court conviction and judgment of
      sentence, insofar as [Appellant] had never waived his right to a
      jury trial for those offenses?

Appellant’s Brief at 3.

      Our standard of review is whether the trial court abused its discretion

or committed an error of law, and whether competent evidence supports the



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J-S84029-16


trial court’s findings. See Commonwealth v. Askins, 761 A.2d 601, 603

(Pa. Super. 2000), appeal dismissed as improvidently granted, 782

A.2d 508 (Pa. 2001).        “An abuse of discretion is not a mere error in

judgment, but rather, involves bias, ill will, partiality, prejudice, manifest

unreasonableness, or misapplication of law.” Commonwealth v. Cox, 115

A.3d 333, 336 (Pa. Super. 2015) (citations omitted), appeal denied, 124

A.3d 308 (Pa. 2015).

      Appellant argues that he had a constitutional right to a jury trial which

he never waived. Appellant’s Brief at 5. He asserts that “[m]erely failing to

appear for court on one day does not waive or forfeit that right, particularly

where other remedies are available.” Id. He also maintains that “[i]nsofar

as the judge’s actions were purportedly authorized by Pa.R.Crim.P. 1010(B),

that rule of criminal procedure cannot trump the Constitutions of the United

States and Pennsylvania.” Id. at 5-6. We disagree.

      As the Commonwealth correctly observes, Appellant waived this

argument   because     he   “was   represented   by   counsel   throughout   the

proceedings below and there is nothing in the record to indicate that he

requested a jury trial in absentia or objected when the court did not provide

one.” Commonwealth Brief at 6, citing Pa.R.A.P. 302(a) (issues not raised in

the lower court are waived and may not be raised for the first time on

appeal). Appellant’s assertion of a constitutional right does not change this

result. See, e.g., Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.


                                      -3-
J-S84029-16


2013) (finding appellant’s constitutional challenges waived for failure to raise

them before the trial court).

       Even in the absence of waiver, Appellant’s claim is without merit.

Pennsylvania Rule of Criminal Procedure 1010(B), governing Philadelphia

Municipal Court procedures, states:

       If the 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). See Commonwealth v. Akinsanmi, 55 A.3d 539,

540-541 (Pa. Super. 2012) (when a defendant fails to appear for a summary

appeal and does not provide good cause, dismissal of the appeal is proper).

The comment to Rule 1010(B) explains:

       Paragraph (B) makes it clear that the Common Pleas Court judge
       may dismiss an appeal when the judge determines that the
       defendant is absent without cause from the trial de novo. If the
       appeal is dismissed, the Common Pleas Court judge must enter
       judgment and order execution of any sentence imposed by the
       Municipal Court judge. Nothing in this rule is intended to
       preclude the judge from issuing a bench warrant when the
       defendant fails to appear.

Id., cmt.2 Because Appellant failed to appear for his summary appeal and

offered no reason for his failure to do so, the trial court acted properly in

applying Rule 1010(B), and we affirm its decision.

____________________________________________


2
  Pennsylvania Rule of Criminal Procedure 462 applies to trials de novo in all
counties outside of Philadelphia. It similarly provides that “[i]f the defendant
fails to appear, the trial judge may dismiss the appeal and enter judgment in
(Footnote Continued Next Page)


                                           -4-
J-S84029-16



      The Honorable Vincent N. Melchiorre, sitting as the trial court, has

authored a comprehensive opinion which expands upon the facts and law

discussed above, in determining that Appellant is not entitled to relief.

Judge Melchiorre cites prevailing legal authority, and notes that Appellant,

“at no time” provided the trial court “with an excuse for not appearing on

June 17, 2015[].” Trial Court Opinion, 12/16/15, at 6 n.3.     We adopt and

incorporate the trial court’s opinion in disposing of this appeal. The parties

shall attach a copy of the trial court’s December 16, 2015 opinion in the

event of further proceedings in this matter.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2017




                       _______________________
(Footnote Continued)

the court of common pleas on the judgment of the issuing authority.”
Pa.R.Crim.P. 462(D).




                                            -5-
J-S84029-16




              -6-
                                                                                    Circulated 01/25/2017 10:55 AM




                                IN THE COURT OF COMM:ON PLEAS
                       FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                           TRIAL DIVISION - CRIMINAL SECTION


COMMONWEALTH                OF                                      CP-51-CR-0003698-2015
PENNSYLVANIA

           vs.

                                                                    SUPERIOR COURT
ANDRE WILLIAMS                                                      NO. 2127EDAFILE.D

                                                                                          DEC 1 6 zo·i5
                                           OPINION                                Criminal !~pf,;~:f'.t um
                                                                               F·1r~'Wt· Jud;r,tal
                                                                                             ~v."  ri1,,i,r,...,
                                                                                                          -tu;
                                                                                                     _J.,l.,. ...
                                                                                                                    i .,··>1   ·?P..

MELCIDORRE, J.                                                      DECEMBER 16, 2015




I.     FACTS and PROCEDURAL              IDSTORY

       On April 8, 2015) the matter of the Commonwealth           of Pennsylvania      versus Andre

Williams was heard in the Municipal Court of Philadelphia before the Honorable Marvin L.

Williams, Sr., on the charges of possession of an instrument of crime' and terroristic threats.'

That court found the Defendant guilty of and terroristic threats, and imposed a sentence of six (6)

to twelve (12) months of incarceration with immediate parole after six (6) months followed by

twelve (12) months of reporting probation. The Defendant filed a Notice of Appeal for a trial de

novo before the Court of Common Pleas that same day.

       On April 30, 2015, the Defendant was scheduled to appear before this court for his·

Formal Arraignment         On that date, the Defendant failed to appear and this court issued a

       I
           18 Pa. C.S.A. § 907

       2
           18 Pa. C.S.A. § 2706
subpoena instructing the Defend8!1t to rettim to this court for trial on June 17, 2015 at 9:00am.

Defense attorney Michael Sanuck accepted service on behalf of the D_efendant.

        On June 17, 2015, the Defendant failed to appear for trial. At approximately 11:04 a.m.,

this court dismissed the appeal pursuant to Pennsylvania Rule of Criminal Procedure 101 O(B),

adjudicated the Defendant guilty and reinstated the Municipal Court sentence of six (6) to twelve

. (12) months of incarceration with immediate parole after six (6) months followed by twelve (12)

months of reporting probation. A bench warrant was issued that same day and later lifted by the

Honorable Harvey W. Robbins in Municipal Court.         The Defenda11:t filed a timely Notice of

Appeal. After receiving the notes of testimony of the June 17, 2015 hearing as ordered by the

Defendant, a timely Statement of Errors in accordance with Pennsylvania Rule of Appellate

Procedure 1925(b)was filed.



II.    ISSUES ON APPEAL

       The Defendant raises the following issues verbatim on appeal:

        a.     The quashing of defendant' s trial in the Court of Common Pleas, reinstating the

Municipal Court conviction and sentence, violated the defendant's Pennsylvania and Federal

Constitutional right toa jury trial. The defendant at no time waived this right, and the Municipal

Court conviction was obtained without a jury or the opportunity to demand a jury. Insofar as Pa.

R. Crim. P. 101 O(B) allows a trial de nova, to be quashed under these circumstances, the rule is

unconstitutional.

       b.      The trial court erred in quashing the trial de nova, insofar as there was no

evidence of a willful failure to appear in court.




                                                    2
 III.    DISCUSSION

         The Superior Court's standard of review is limited to whether the trial court abused its

 discretion or committed an error of law and whether the findings of the trial court are supported

 by competent evidence.      See Commonwealth v. Askins, 761 A.2d 601, 603 (Pa Super. 2000).

 The adjudication of the trial court will not be disturbed on appeal absent a manifest abuse of

 discretion.   Id. "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."

 Commonwealth       v. Diamond, 945 A.2d 252, 258 (Pa. Super. 2008) (citation omitted).           Rule

. 101 O(B) is located in Chapter 10 of the Pennsylvania Rules of          Criminal Procedure, which

 governs all proceedings in the Philadelphia Municipal Courts.         See Pa.R.Crim.P.   1000, emf.

 Rule 101 O(B) provides: "[i] f the 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!' · · ·

         In the instant case, the 'Defendant argues that the quashing of his trial in the Court of

 Common Pleas and reinstating the Municipal            Court conviction   and sentence violated    his

. Constitutional right to a jury trial: He further argues that at no time did he waive this right, and

 the Municipal Court conviction was obtained without a jury or the opportunity to demand a jury

 thereby violating his constitutional rights. This argument fails.

         The right-to a trial is a fundamental guarantee of both the United States Constitution and

 the Pennsylvania     Constitution.   The Sixth Amendment       to the United States Constitution

provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

 trial, by an impartial jury of the State and district wherein the crime shall have been committed."



                                                   3
 U.S. Const. Art. 6. Similarly, our Pennsylvania Constitution states: "Trial by jury shall be as

 heretofore, and the right thereof remain inviolate!'   Pa. Const. Art. 1, §<5.

          In Philadelphia, misdemeanor charges are initially prosecuted in Municipal Court. 42 Pa.

 C.S. §l 123(a)(2) .. Terroristic Threats is a misdemeanor offense which can be punished by a term

 of imprisonment up to five years. See 18 Pa. C.S.A. § 2706, 18 Pa. C.S.A. §1Q6(b)(6).

 Therefore, initial jurisdiction of Defendant's case was vested only in the Philadelphia Municipal

 Court.

          No jury trials are conducted in Philadelphia Municipal Court. 42 Pa. C.S.A. § l 123(a)(2)

 (In cases under this paragraph the defendant shall have no right of trial by jury in the municipal

 court). In order to preserve the constitutional right to a jury trial, the Commonwealth provides

 that, after conviction in Municipal Court, a defendant "shall have the right of appeal for trial de

 nova, including the right of trial by jury, to the court of common pleas." 42 Pa. C.S.A. §

 1123(a)(2). See also, Schedule to Art. V of Pa. Const., §16(r)(iii) (In Municipal Court cases, the

·defertdruitshallhave no right of trial by jury in that court, but heshall have theright of appeal·

 from trial de nova including the right to trial by jury to the trial division of the court of common

 pleas.). Therefore, there was no error in the Municipal Court conviction being obtained without

 a jury or the opportunity to demand a jury as suggested by the Defendant.

          There is no question, that Defendant was entitled to a new trial in the Philadelphia Court

 of Common Pleas, including a trial by a jury of his peers. However, he waived that right when

 he failed to appear for the June 17, 2015 de novo·hearing. Having determined that the Defendant

· failed to appear for his trial de nova, this court dismissed the Defendant's appeal and entered
                                                                            '
 judgment corisistent with the Municipal Court judgment. This adjudication complied with· the




                                                   4
clear and unambiguous      dictates of Rule lOlO(B). Thus, this court finds that Defendant's

argument lacks merit.

       The second part of Defendant's argument claims that "Insofar as Pa. R. Crim. P. 1010(B)
                                                                          .
allows a trial de novo to be quashed under these circumstances, the rule is unconstitutional."

After extensive searching, this court is not aware of any legislation that supersedes Rule 10 lO(B)

or any case law that challenges its constitutionality. As such, this court will not engage in a

belabored discussion of the due process clause or the right to a jury trial in response to a

Statement of Errors that raises these issues without any particularity.

       Lastly, Defendant argues that this court erred in quashing the trial de novo because there

was no evidence of a willful failure to appear in court. This argument must also fail.

        When a defendant appeals a Municipal Court conviction and fails to appear for his trial

de novo, the trial court may dismiss the appeal, and thereafter, enter judgment in a manner

consistent with the Municipal Court judgment. Pa. R. Crim. P. lOlP(B). The trial court may

dismiss an appeal when "the judge 'determines' that the defendant is absent without cause" from

the trial de novo. Pa. R. Crim. P. 1010 cmt. What's more, when a defendant is absent without

cause at the time his trial is scheduled to begin, he may be tried and sentenced in absentia.

Commonwealth v. Sullens, 619 A.2d 1349, 1352 (Pa. 1992) (stating that a contrary rule would

allow an accused at large upon bail to immobilize the commencement of trial and frustrate an

overtaxed judicial system until the trial date meets with her pleasure and convenience);

Commonwealth v, Bond, 670 A.2d 678, 679 (holding that a defendant who leaves the courtroom

voluntarily and without cause prior to sentencing may be sentenced in absentia). The decision to

proceed in absentia remains within the discretion of this Court. Commonwealth v. Wilson, 712

A.2d 735, 739 (Pa. 1998) (holding that when a defendant voluntarily absents himself from the



                                                   5
          trial proceedings without cause, he has waived his right t~ be present, and the trial court retains

          discretion to continue without delay). Absent a manifest abuse of injustice, the reviewing court

          should not disturb this court's adjudication of the matter. Commonwealth                         v. Parks, ?68 A.2d

          1168 (Pa. Super. 2001) (stating the standard of review).

                   In the matter sub judice, the Defendant failed to appear for his trial de nova under the

          plain: meaning of Rule IOIO(B) because he was not present in the courtroom when his case was

          called. As previously stated, the record reflects that on April 30, 2015, the Defendant was

          scheduled to appear before this court for a formal arraignment. On that date, he failed to appear

          and this court issued a subpoena instructing the Defendant to return to this court for trial on June

          17, 2015 at 9:00arn.           Defense attorney Michael Sanuck accepted service on .behalf of the

          Defendant. And while not reflected on the record, this court is aware that the Public Defenders'

          Office (or defense attorneys in general) does not accept service for a defendant that they are not

          in contact with.
,.   ·.   · ·- · ·· Additionally, on June 15, 2015, this court received anadvanceddeferrse requestfrorrr the

          Public Defender because of missing discovery. On June 17th, this court marked its' trial sheets

          reflecting the advance defense request and holding the matter open for the Defendant's arrival.

          Approximately two hams later, at 11:04 a.m., the Defendant still .had not appeared and no

          representations were.made by counsel as to why the Defendant was !}Ot present.3 This court

          dismissed the appeal pursuant to Pennsylvania Rule of Criminal Procedure lOlO(B), adjudicated

          the Defendant guilty and reinstated the Municipal Court sentence.4


                    3 At no time has the Defendant given this court an excuse for not appearing on June 17, 2015; there has
          . been no claim of a serious accident, illness, natural disaster, or unforeseen circumstance that was out of his control.

                    4 Paragraph (B) of Rule 1010 makes it clear that the Common Pleas Court judge may dismiss an appeal
          when the judge determines.that the defendant is absent without cause from the trial de novo. Pa. R. Crim. P. Rule
          101 O{b). cmt. See also Commonwealth v. Akinsanmi, 55 A.3d 539, 540-41 (Pa . .Super. 2012) (noting "[w]hen a

                                                                       6
        This court found that the Defendant had failed to appear within the meaning of Rule

.1 OlO(B). Determined to continue without delay - and following the methodology that Rule

1010(8) requires - this court dismissed the appeal and entered judgment consistent with the

Municipal Court judgment. Clearly, this does not constitute a manifest abuse of discretion, and

the Defendant's argument lacks merit.



 IV.     CONCLUSION

        In summary, this court has carefully reviewed the entire record and finds no harmful,

prejudicial or reversible error and nothing to justify the granting of Defendant's request for relief

in this case. For the reasons set forth above, Defendant's judgment of sentence should be

affirmed.




                                                             BY-THE"COURT:·




                                                             VfN~,J.




defendant does not appear for the summary appeal and does not provide an excuse, dismissal of the appeal is proper.
Conversely.when good cause for the absence is shown, a new trial should be granted.") (citations omitted).

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