J-S61026-17

                                  2017 PA Super 342



    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA


                        v.

    RICHIE PERALTA

                             Appellant                  No. 2281 EDA 2016


             Appeal from the Judgment of Sentence June 17, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-SA-0001577-2016


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

OPINION BY RANSOM, J.:                                FILED OCTOBER 31, 2017

        Appellant, Richie Peralta, appeals from the judgment of sentence of June

17, 2016, imposed after the court dismissed his de novo appeal for failure to

appear. We affirm.

        On March 15, 2016, Appellant was stopped at the intersection of Tioga

and Colon Streets in Philadelphia, Pennsylvania, due to the tinted windows of

his car. Upon running Appellant’s license, the police officer discovered that

Appellant’s license had been suspended. The officer wrote two traffic citations

for the above violations.1 See Traffic Citations AA23374I-4 and AA233742-5.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 4524(e) and § 1543(a), respectively.
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A hearing for these citations was scheduled for May 17, 2016, at 9:00 a.m.

Appellant did not appear at the hearing, was found guilty in absentia and was

fined $146.50 and $275.00, respectively.2 That same day, Appellant filed a

notice of appeal to the Court of Common Pleas, and a trial de novo was

scheduled for June 17, 2016. See Notice of Appeal, 5/17/16.

       On June 17, 2016, Appellant failed to appear for his trial de novo, and

his appeal was dismissed. See Order, 6/17/16. Appellant retained counsel

and filed an unopposed motion for reconsideration.      See Mot. for Recons.,

6/22/16, at ¶¶ 1-6. The motion averred that Appellant worked nine hours a

day, seven days a week, and that due to his heavy workload, unrelated legal

troubles, and conflict within his family, he had inadvertently missed his trial.

Id. The Commonwealth did not oppose the motion. Id. The court heard

argument from Appellant’s counsel but ultimately denied the motion.        See

Notes of Testimony (N.T.), 6/22/16, at 3-16.

       Appellant timely appealed3 and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The court issued a responsive

opinion.


____________________________________________


2 The trial court opinion indicates that the hearing was scheduled for May 11,
2016; however, an examination of the citation indicates that the hearing was
scheduled for May 17, 2016.

3 Appellant’s appeal was dismissed June 17, 2016, and he thus had thirty days
to appeal. See Pa.R.A.P. 903. July 17, 2016, was a Sunday; accordingly,
Appellant had until Monday, July 18, 2016, to file his appeal, which he did.
Id.; see also 1 Pa.C.S. § 1908.

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      On appeal, Appellant raises the following issues for our review, which

we have reordered for ease of analysis:

      1. Whether or not it was an abuse of discretion for the trial court
      to deny relief to the Appellant, when promptly presented with his
      credible claim of involuntariness, and where the Commonwealth
      did not oppose the motion for reconsideration and argued before
      the trial court that it be granted, where the Appellant was pro se
      at the time of his absence, where the denial was based on the trial
      court’s procedural rigidity?

      2. Whether or not it was an error of law for the trial court to deny
      the Appellant a new trial after his de novo summary appeal was
      dismissed for failing to appear, where he presented a prima facie
      claim of involuntariness that was found to be credible.

      3. Whether or not it was an error of law for the trial court to find
      the Appellant was absent without cause, where he failed to appear
      due to his inability to remember his court date cause [sic] stress
      from conflict in his home life and overwork?

      4. Whether or not it was an error of law for the trial court to
      dismiss the Appellant’s appeal under Pa.R.Crim.P. 1037(D)(2) for
      failing to appear prior to his de novo summary trial at a
      status/settlement conference scheduled by the Court of Common
      Pleas pursuant to Pa.R.Crim.P. 1037(A).

Appellant’s Brief at 7.

      The standard of review regarding summary conviction appeals is well-

settled and is

      limited to a determination of whether an error of law has been
      committed and whether the findings of fact are supported by
      competent evidence. The adjudication of the trial court will not be
      disturbed on appeal absent a manifest abuse of discretion.

Commonwealth v. Marizzaldi, 814 A.2d 249, 251 (Pa. Super. 2002)

(internal citations and quotation omitted).



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       Pennsylvania Rule of Criminal Procedure 1037(D), regulating summary

appeals from decisions of the Traffic Division of the Philadelphia Municipal

Court, controls.     See Pa.R.Crim.P. 1030, 1037.       With regard to summary

appeals where the defendant fails to appear for a trial de novo,

       the Common Pleas Court judge shall dismiss the appeal and enter
       the judgment in the Court of Common Pleas on the judgment of
       the Traffic Division judge or hearing officer.

Pa.R.Crim.P. 1037(D)(2).4 The entry of such an order constitutes a final order

and no post-sentence motions are permitted. See Pa.R.Crim.P. 720(D).

       Essentially, Appellant claims that despite the plain language of Rule

1037(D)(2), the trial court erred in dismissing his appeal without a hearing.

His argument is two-fold.          See Appellant’s Brief at 18.   First, Appellant

acknowledges that the Rule provides that the court “shall” dismiss the appeal

due to the failure to appear.         Id. at 19.   However, he suggests that the

comment to Rule 462(D) should inform our interpretation and that the

language of Rule 1037(D)(2) should be read permissively.            Id.   Second,

Appellant contends that the court’s decision does not comport with Rule 101,

which provides that the rules are intended to effectuate the just determination

of criminal proceedings. Id. at 18; Pa.R.Crim.P. 101(A).

       The body of case law regarding the dismissal of summary appeals for

failure to appear is solely from counties governed by Rule 462. In that regard,

____________________________________________


4 Summary appeals from traffic court cases in counties outside the First
Judicial District are governed by Pa.R.Crim.P. 462(D), which provides that if
the defendant fails to appear, the trial court “may” dismiss the appeal.

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our Court has held that where an appellant’s tardiness is involuntary, he

should be given an opportunity to present a defense as provided by the

Comment to the Rule. See Marizzaldi, 814 A.2d at 251-53 (citing in support

the Comment to Pa.R.Crim.P. 462(D), providing that a trial judge may dismiss

an appeal where the judge determines that the defendant is absent without

cause).

     Marizzaldi did not define “without cause.” Because the trial court had

not conducted an inquiry into the cause of the absence, we vacated the

judgment of sentence and remanded.           See Marizzaldi, 814 A.2d at 253

(finding that the appellant may have shown good cause where, through no

fault of his own, he missed a bus to court). Subsequent cases have further

defined this term. See Commonwealth v. Akinsanmi, 55 A.3d 539, 541

(Pa. Super. 2012) (finding that the appellant’s absence was voluntary where

she was attending a research conference instead of court and did not request

a continuance); see also Dixon, 66 A.3d 797-98 (finding that the appellant’s

absence was voluntary where he ignored directions printed on his court papers

and reported to the wrong location).

     However, these cases are of limited utility to our analysis, as they all

concern themselves with Rule 462(D), which governs all appeals from

summary convictions in counties outside of Philadelphia, traffic related and

otherwise. See Pa.R.Crim.P. 462; see, e.g., Commonwealth v. Mesler,

732 A.2d 21, 25 (Pa. Commw. 1999) (involving summary appeal from

conviction from unlawful taking of game or wildlife and one count of shooting

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on the highways); see also Commonwealth v. Krut, 457 A.2d 114, 115 n.2

(Pa. Super. 1983) (involving summary appeal from convictions for various

motor vehicle related offenses).

        In contrast, the Philadelphia Municipal Court and Philadelphia Municipal

Court Traffic Division are governed by different rules. See Pa.R.Crim.P. 1001-

1037.     Summary appeals that do not involve motor vehicle offenses are

governed by Part A; summary appeals involving motor vehicle offenses are

governed by Part B. See Pa.R.Crim.P. 1002. The Traffic Division Rules were,

per the Legislature, “developed . . . to accommodate the procedures

Philadelphia Traffic Court implemented to address the issues in summary

traffic cases unique to Philadelphia, to more efficiently handle the vast number

of summary traffic cases, and to protect the defendants’ rights to a fair and

prompt disposition of their cases.” See Comment to Pa.R.Crim.P. 1030.

        The language regarding the specific Rules is equally different. Rule 462

provides that if the defendant fails to appear, the trial judge may dismiss the

appeal. See Pa.R.Crim.P. 462(D). The use of “may” and “if” are the operative

words. In counties outside of Philadelphia, the trial judge has discretion to

dismiss the appeal when no cause is shown and, only if the appeal is

dismissed, should the trial judge enter judgment.       In contrast, Rule 1037

provides that if the defendant fails to appear, the trial judge shall dismiss the

appeal and enter judgment. See Pa.R.Crim.P. 1037(D). The differences in

Rule 462 and Rule 1037 are that in the former, the judge may dismiss the




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appeal and in the latter the judge shall dismiss the appeal. Nothing in the

Rules or the comments thereto convince us that Appellant’s argument is valid.

      Thus, we conclude that, based on the above, the trial judge did not have

the discretion to consider the cause of Appellant’s absence, and did not

commit an abuse of discretion in dismissing the appeal. See Pa.R.Crim.P.

462(D), 1001-1002, 1037.

      Appellant’s next two claims of error are essentially the same claim. See

Appellant’s Brief at 13-18. He contends that the court erred in dismissing his

appeal for failure to appear because his absence, due to forgetfulness, stress,

overwork, and family problems, was involuntary. Id. Thus, he argues that

he was not absent without cause and his appeal should not have been

dismissed. Id. at 16-17. Due to our disposition of Appellant’s previous issue,

we need not address the merits of these claims.

      Finally, Appellant claims that the court could not dismiss his appeal

because the June 17, 2016 court date was a status hearing and not a trial de

novo. See Appellant’s Brief at 23-27. Appellant contends that this is not

permissible under Pa.R.Crim.P. 1037.       Id.    However, Appellant did not

preserve this issue in his Pa.R.A.P. 1925(b) statement and has accordingly

waived it for purposes of appeal. See Commonwealth v. Castillo, 888 A.2d

775, 780 (Pa. 2005); see also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included

in the Statement and/or not raised in accordance with the provision of this

paragraph (b)(4) are waived.”).

      Judgment of sentence affirmed. Jurisdiction relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




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