J-S13033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ZACKARY ELKING POLL

                            Appellant                No. 1448 WDA 2014


                 Appeal from the Order Entered August 6, 2014
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-SA-0001467-2014


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

MEMORANDUM BY STABILE, J.:                              FILED MAY 27, 2015

       Appellant, Zackary Elking Poll, appeals from the August 6, 2014 order

dismissing his summary appeal.1 We vacate and remand.

       On April 15, 2014, a Pittsburgh police officer cited Appellant for

reckless driving, operating a vehicle without a valid certificate of inspection,

operating a vehicle without valid evidence of an emission inspection, and

failing to ensure use of a seatbelt by persons under age eighteen.2


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1
   This order is final and appealable. Pa.R.A.P. 341(b)(2); Pa.R.Crim.P.
720(D); see Commonwealth v. Dixon, 66 A.3d 794, 795 (Pa. Super.
2012).
2
     75 Pa.C.S.A. §§ 3736, 4703(a), 4706(c)(5) and 4581(a)(2)(i),
respectively. We note that § 4703 has been amended effective May 1,
2015.
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      Appellant contested the charges but was found guilty of each after a

summary trial on July 2, 2014. That same day, Appellant filed an appeal,

and the trial court proceeding was scheduled for August 6, 2014. The trial

court dismissed the appeal when Appellant failed to appear.

      “Our standard of review from an appeal of a summary conviction heard

de novo by the trial court 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.”     Commonwealth v. Marizzaldi, 814 A.2d 249 (Pa.

Super. 2002).      Appellant argues the trial court erred in dismissing his

summary appeal without inquiring into the reasons for Appellant’s absence

from the proceeding.     He cites Marizzaldi for authority that a trial court

must do so.

      In Marizzaldi, the trial court dismissed the defendant’s summary

appeal without explanation when the defendant failed to appear. Id. at 250-

51. Furthermore, the trial court’s opinion did not reflect any inquiry into the

reasons for the defendant’s absence. Id. at 251. This Court concluded the

trial court failed to comply with Rule 462 of the Rules of Criminal Procedure.

That Rule provides in relevant part as follows:

              (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.

                                        […]

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            (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.

                                        […]

            Comment: […] Paragraph (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. If the appeal is
            dismissed, the trial judge should enter judgment and order
            execution of any sentence imposed by the issuing
            authority.

Pa.R.Crim.P. 462(A), (D), and comment (emphasis added). The Marizzaldi

Court also noted that Pa.R.Crim.P. 720(D) does not permit post-sentence

motions after a trial de novo after a summary appeal. Marizzaldi, 814 A.2d

at 252.   Thus, the facts of Marizzaldi were distinguishable from cases

decided under an earlier version of the Rules of Criminal Procedure

permitting such a motion and, thereby, affording the defendant an

opportunity to establish good cause for failing to appear. Id. The defendant

in Marizzaldi filed an affidavit along with his appellate brief explaining that

he missed his bus and thus arrived ten minutes late for his hearing, at which

point the trial court had already dismissed his appeal. Id. at 251. Given the

trial court’s failure to conduct any inquiry into the cause of the defendant’s

absence and the absence in the record of anything contradicting the




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defendant’s assertions on appeal, the Marizzaldi Court remanded for a trial

de novo. Id. at 252.3

       In Dixon, this Court summarized Marizzaldi as follows:

                    We understand Marizzaldi to require a new trial
              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.

Dixon, 66 A.3d at 797.

       Here, as in Marizzaldi, the record fails to reflect any inquiry into the

cause of Appellant’s absence. At the August 6, 2014 hearing, the trial court

stated the following:       “Okay, we will dismiss the appeal, defendant not

appearing.” N.T. Hearing, 8/6/14, at 2. Thereafter, the trial court imposed

fines and the proceeding concluded. Id. The trial court’s opinion likewise

contains no mention of any inquiry into the cause of Appellant’s absence:

“The Summary Appeal hearing was conducted on August 6, 2014, at which

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3
    In a concurring statement, Judge Beck wrote that she believed the
defendant was entitled to a hearing to establish the reason for his absence,
but that missing a bus and failing to make a timely communication with the
court would not constitute sufficient cause for missing the hearing. Id. at
253 (Beck, J. concurring).       Judge Beck found the circumstances of
Marizzaldi distinguishable from Commonwealth v. Doleno, 594 A.2d 341
(Pa. Super. 1991), where the defendant missed his hearing due to his
attorney’s error, and Commonwealth v. Parks, 768 A.2d 1168 (Pa. Super.
2001), where the docket failed to reflect the clerk of courts provided notice
of the hearing. Id.



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time the Defendant failed to appear. In his absence, judgment was entered

on the judgment of the issuing authority, pursuant to [Pa.R.Crim.P.

462(D)].” Trial Court Opinion, 7/29/14, at 1.

      In accordance with Marizzaldi, Appellant attached an affidavit to his

appellate brief. He states:

                  I was not present because my car battery died. I
            was not represented by counsel at the time and did not
            know who to call. Once my vehicle was operational again,
            I went to the Clerk of Courts where I was informed that
            my appeal had been dismissed and my only option was to
            file an appeal with the appellate courts, which I filed
            myself.

Appellant’s Brief at 20.

      The Commonwealth concedes that Marizzaldi is on point, inasmuch as

the record does not reflect any inquiry into the cause of Appellant’s absence

from the summary appeal hearing, as required by the holding in Marizzaldi

and the comment to Rule 462.           Commonwealth’s Brief at 8-9.      The

Commonwealth deems Appellant’s proffered excuse dubious, as did Judge

Beck in her concurring statement in Marizzaldi. Id. The Commonwealth

ultimately takes no position on the outcome of this appeal, but defers to the

judgment of this panel.

      In our judgment, Marizzaldi is controlling.     Nothing in the instant

record evinces any inquiry into the cause of Appellant’s absence from his

summary appeal hearing.       Likewise, the record contains nothing to refute

Appellant’s assertion that he missed the hearing because of a dead car



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battery. The trial court committed an error of law in failing to inquire into

the cause of Appellant’s absence from the summary appeal.4 Though we are

not without sympathy to the concerns of Judge Beck in Marizzaldi and the

Commonwealth in this case concerning the sufficiency of the proffered

excuse for the absence, we discern no meaningful distinction between a

missed bus and a dead car battery, insofar as either scenario constitutes

prima facie cause for an involuntary absence.5     We therefore vacate the

order on appeal and remand for a new trial de novo.

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/27/2015


____________________________________________


4
    Our holding notwithstanding, we appreciate the procedural predicament
trial courts face where the summary appellant fails to appear. As we stated
in Dixon, “[t]he trial court cannot question an absent defendant regarding
the cause of the absence, and the defendant cannot file post-sentence
motions to explain the absence.” Dixon, 66 A.3d at 797.
5
    The Dixon Court declined to award a new trial de novo where the
appellant averred that he appeared at the wrong location for his hearing and
was unable to find the correct location in time. Dixon, 66 A.3d at 795-96.
In Dixon, the record confirmed that the appellant received notice of the
time, date and location of the hearing. Thus, unlike Marizzaldi and the
instant case, the record in Dixon contained information contradicting the
appellant’s excuse for his absence.



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