J. S62036/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
MATTHEW PETER SZCZESNIAK,                 :           No. 3800 EDA 2016
                                          :
                         Appellant        :


               Appeal from the Order Entered November 2, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-MD-0005766-2015


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 05, 2019

        Matthew Peter Szczesniak appeals from the November 2, 2016 order

denying his petition for leave to appeal nunc pro tunc, following his

convictions, in absentia, of the summary offenses of reckless driving and

turning movements and required signals.1 After careful review, we affirm.

        The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows. On August 3, 2012, appellant received

one summary citation for reckless driving (Citation No. P1V94FXXW20) and

one summary citation for turning movements and required signals (Citation

No. P1V94GB2727) during the course of his arrest for driving under the

influence.    On October 9, 2012, the Philadelphia Traffic Court convicted




1   75 Pa.C.S.A. §§ 3736 and 3334(a), respectively.
J. S62036/18

appellant in absentia of reckless driving and turning movements and

required signals after he failed to show up for his scheduled court date.

Appellant failed to appeal his convictions. Thereafter, on June 17, 2015, the

Pennsylvania Department of Transportation notified appellant that his driving

privileges were being revoked for a period of 5 years, due to the fact that his

most recent May 22, 2015 DUI conviction constituted a third major violation

within a five-year period.

      On August 5, 2015, appellant filed a “Petition for Leave to File

Summary Traffic Appeal Nunc Pro Tunc” in the Court of Common Pleas of

Philadelphia County (“trial court”). A hearing on appellant’s nunc pro tunc

petition was scheduled for October 26, 2015, at the conclusion of which said

petition was dismissed after appellant failed to appear.       (See notes of

testimony, 10/26/15 at 9.) On November 23, 2015, the trial court vacated

its order dismissing appellant’s petition, and a second hearing was scheduled

for March 11, 2016. Following said hearing, the trial court denied appellant’s

petition for leave to appeal nunc pro tunc on November 2, 2016.           This

timely appeal followed on December 1, 2016.        On May 2, 2017, the trial

court directed appellant to file a concise statement of errors complained of

on appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. Appellant

filed a timely Rule 1925(b) statement on May 8, 2017, and the trial court

filed its Rule 1925(a) opinion on November 9, 2017.

      Appellant raises the following issues for our review:



                                     -2-
J. S62036/18


            1.    Whether the trial court erred in denying
                  appellant’s petition to appeal nunc pro tunc
                  where Philadelphia Traffic Court did not have
                  jurisdiction to try the appellant since the
                  evidence of record establishes that appellant
                  did not respond to his citations or enter a plea
                  and the court, rather than issue a bench
                  warrant as is required, held a trial
                  in absentia[?]

            2.    Whether the trial court erred in denying
                  appellant’s petition to appeal nunc pro tunc
                  where no adequate notice of trial was provided
                  to the appellant by the court[?]

            3.    Whether the trial court erred in denying
                  appellant’s petition to appeal nunc pro tunc
                  where there was no competent record of
                  evidence to rebut appellant’s testimony that he
                  did not receive notice of his conviction and his
                  right to appeal from the court as required[?]

Appellant’s brief at 4 (full capitalization omitted; emphasis added).

      In an appeal from the denial of a petition to appeal nunc pro tunc,

our standard of review is as follows:

            [A]llowance of appeal nunc pro tunc is within the
            sound discretion of the trial court, and our scope of
            review of a decision of whether to permit an appeal
            nunc pro tunc is limited to a determination of
            whether the trial court has abused its discretion or
            committed an error of law.        Orders granting or
            denying [a] petition to appeal nunc pro tunc are
            reversible [only] in instances where the court abused
            its discretion or where the court drew an erroneous
            legal conclusion.

Commonwealth v. Yohe, 641 A.2d 1210, 1211 (Pa.Super. 1994) (internal

citations and quotation marks omitted; some brackets in original).




                                        -3-
J. S62036/18

      Here, appellant did not file an appeal within 30 days of his summary

convictions. See Pa.R.Crim.P. 460(A) (stating, inter alia, that “an appeal

shall be perfected by filing a notice of appeal within 30 days after the entry

of the guilty plea, the conviction, or other final order from which the appeal

is taken.”). Therefore, the only way appellant could attack the convictions

was   by   obtaining    relief   through    a    petition   for   leave   to     appeal

nunc pro tunc.    “[A]n appeal nunc pro tunc is intended as a remedy to

vindicate the right to an appeal where that right has been lost due to certain

extraordinary circumstances.” Commonwealth v. Williams, 893 A.2d 147,

150 (Pa.Super. 2006) (citation omitted), appeal denied, 921 A.2d 497 (Pa.

2007).

      The crux of appellant’s first claim is that the denial of his petition for

leave to appeal nunc pro tunc was improper because the Philadelphia

Traffic Court lacked subject       matter       jurisdiction to   conduct      his   trial

in absentia. (Appellant’s brief at 10.) We disagree.

      “Subject matter jurisdiction speaks to the competency of a court to

hear and adjudicate the type of controversy presented.” Commonwealth

v. Succi, 173 A.3d 269, 283 (Pa.Super. 2017) (citation omitted), appeal

denied, 188 A.3d 1121 (Pa. 2018).          “Issues pertaining to jurisdiction are

pure questions of law, and an appellate court’s scope of review is plenary.

Questions of law       are subject to      a    de novo standard of review.”




                                      -4-
J. S62036/18

Commonwealth v. McGarry, 172 A.3d 60, 65 (Pa.Super. 2017) (citation

omitted), appeal denied, 185 A.3d 966 (Pa. 2018).

      The jurisdiction and venue of traffic court in this Commonwealth is

governed by 42 Pa.C.S.A. § 1302.            In 2013, the Legislature enacted

legislation that abolished the Philadelphia Traffic Court and transferred the

jurisdiction to hear “prosecutions for summary offenses arising under . . .

Title 75[]” to the newly established Traffic Division of the Philadelphia

Municipal Court. See 42 Pa.C.S.A. §§ 1121, 1123(a)(9). Prior to that time,

Philadelphia had two separate courts that dealt with summary and

misdemeanor traffic offenses.     Summary traffic offenses, like appellant’s

instant convictions, could only be heard in Philadelphia Traffic Court and

misdemeanor traffic offenses could only be heard in Philadelphia Municipal

Court. Because appellant was found guilty in absentia of summary traffic

violations in the Philadelphia Traffic Court on October 9, 2012, the

2013 restructuring of the traffic court does not have any bearing on the

current    matter.       At     the   time     of   appellant’s    convictions,

Section 1302(a.1)(1)(i) vested the Philadelphia Traffic Court with jurisdiction

“of all prosecutions for summary offense arising under . . . Title 75.”

42 Pa.C.S.A § 1302(a)(i).       Accordingly, under the      plain reading of

Section 1302, the Philadelphia Traffic Court had exclusive subject matter

jurisdiction to adjudicate all summary traffic offenses committed within

Philadelphia County at that time. Appellant’s claim to the contrary must fail.



                                      -5-
J. S62036/18

      Appellant further contends that the Philadelphia Traffic Court lacked

jurisdiction to conduct his trial in absentia because it failed to issue a bench

warrant pursuant to Pa.R.Crim.P. 430(B) after he did not respond to the

summary traffic citations.       (Appellant’s brief at 11-14.)        This claim is

meritless.

      An     appellant   who   claims   the   trial   court   improperly   tried   him

in absentia bears the burden of “establish[ing] that his absence was with

cause[.]”    Commonwealth v. Johnson, 764 A.2d 1094, 1097 (Pa.Super.

2000), appeal denied, 781 A.2d 141 (Pa. 2001). The decision to conduct a

trial in absentia remains within the discretion of the trial court.                See

Commonwealth v. Wilson, 712 A.2d 735, 739 (Pa. 1998) (holding that

when a defendant voluntarily absents himself from the trial proceedings

without cause, he has waived his right to be present, and the trial court

retains discretion to continue without delay).

      Read in relevant part, Rule 430(B) provides that a bench warrant shall

be issued when “the defendant fails to respond to a citation or summons

that was served upon the defendant personally or by certified mail return

receipt requested[.]” Pa.R.Crim.P. 430(B)(1)(a).

      Here, the Philadelphia Traffic Court’s failure to issue a bench warrant

in this matter after appellant did not respond to the traffic citations did not

divest the court from jurisdiction.      On the contrary, the authority of the

Philadelphia Traffic Court to conduct a trial in absentia is set forth in



                                        -6-
J. S62036/18

Pennsylvania Rule of Criminal Procedure 455, which provides, in relevant

part, as follows:

               (A)    If the defendant fails to appear for trial in a
                      summary case, the trial shall be conducted in
                      the defendant’s absence, unless the issuing
                      authority determines that there is a likelihood
                      that the sentence will be imprisonment or that
                      there is other good cause not to conduct the
                      trial in the defendant’s absence. If the trial is
                      not conducted in the defendant’s absence, the
                      issuing authority may issue a warrant for the
                      defendant’s arrest.

               ....

               (F)    If the defendant does not respond within
                      10 days to the notice [of conviction and
                      sentence] in paragraph (D), the issuing
                      authority may issue a warrant for the
                      defendant’s arrest.

Pa.R.Crim.P. 455(A), (F).

      Under Rule 455, a trial court is not required to issue a bench warrant

prior to conducting a trial in absentia. Rather, the comment to Rule 455

states that:

               Comment:     In those cases in which the issuing
               authority determines that there is a likelihood that
               the sentence will be imprisonment or that there is
               other good cause not to conduct the trial in the
               defendant's absence, the issuing authority may
               issue a warrant for the arrest of the defendant
               in order to have the defendant brought before
               the issuing authority for the summary trial.
               See Rule 430(B). The trial would then be conducted
               with the defendant present as provided in these
               rules. See Rule 454.




                                         -7-
J. S62036/18

Pa.R.Crim.P.   Comment      (emphasis   added).      Based   on   the   forgoing,

appellant’s second claim of trial court error must fail.

      In his final two claims, appellant argues that the trial court abused its

discretion in denying his petition for leave to appeal nunc pro tunc because

he was not provided adequate notice of the October 9, 2012 trial

in absentia, his subsequent convictions in absentia, nor his right to appeal

therefrom, pursuant to Rule 455(D).         (Appellant’s brief at 15-19.)    The

record belies appellant’s claims.

      It is well settled that,

            [a] party seeking leave to appeal from a summary
            conviction nunc pro tunc has the burden of
            demonstrating two things: (1) that the delay in
            filing his appeal was caused by extraordinary
            circumstances involving fraud or a wrongful or
            negligent act of a court official resulting in injury to
            that party and (2) that upon learning of the
            existence of the grounds relied upon for nunc pro
            tunc relief, he acted promptly to seek such relief.

Yohe, 641 A.2d at 1212 (citation omitted).

      Pursuant to Rule 455(D),

            [i]f the defendant is found guilty, the issuing
            authority shall impose sentence, and shall give
            notice by first class mail to the defendant of the
            conviction and sentence, and of the right to file an
            appeal within 30 days for a trial de novo . . . .

Pa.R.Crim.P. 455(D).

      Instantly, the trial court found that appellant was not entitled to

nunc pro tunc relief because the record fails to demonstrate that



                                      -8-
J. S62036/18

appellant’s delay in seeking an appeal was caused by extraordinary

circumstances.   (Trial court opinion, 11/9/17 at 2.2)      In support of this

conclusion, the trial court reasoned as follows:

            Appellant testified at his hearing on March 11, 2016
            that he did in fact receive the traffic citations from
            the officer at the time of his arrest on or about
            August 3, 2012. ([Notes of testimony, 3/11/16 at
            7-10.]) These citations had on them the required
            dates for the appellant to appear in court to answer
            the traffic violations. ([Id. at 17-21.]) Appellant
            acknowledged these dates to appear.            Appellant
            acknowledged the fact that he has resided at the
            same address for the past 25 years. ([Id. at 15.])
            Moreover, [] appellant states that he never received
            notice of his court trial default, despite notices being
            sent to his home address advising him of his right to
            appeal. The electronic notices were present in his
            Court file and these were brought to the attention of
            [] appellant and his counsel by the Court. ([Id. at
            28-29.])

            On November 2, after holding the matter under
            advisement this court made the following findings of
            fact and conclusions of law: ([Notes of testimony,
            11/2/16 at 4-7.])

            [Appellant’s] testimony at the time of the motion
            was that he did receive the specific citations, which
            were marked as exhibit A and B, from the police
            officer at the scene and at the time of the stop.
            However, he was at this point unsure as to whether
            or not it was exactly on the date of August 3rd or
            August 2nd. But he did indicate that all the citations
            -- that both of the summary citations were issued to
            him personally at the scene on the same date that
            he was charged with the DUI. In addition to that,
            [appellant] contested the notice to appear for trial.

2 The trial court’s November 9, 2017 opinion does not contain pagination; for
the ease of our discussion, however, we have assigned each page a
corresponding number.


                                     -9-
J. S62036/18


             The notice to appear for trial is on both the citations
             that [appellant] indicated that he had received. On
             the date of the stop that notice indicates: “Notice to
             Appear: You must appear for your summary trial
             which is scheduled for October 9, 2012 at 9:00 a.m.
             at 800 Spring Garden Street, Philadelphia, PA
             19123[,]” which is the address where we are right
             now. It’s the Traffic Court address. That notice
             appeared on both of those citations. [Appellant’s] --
             the basis for his contest of that notice was that he
             didn’t read and didn’t see that notice on the citations
             although he did receive the citations. And based on
             the fact that he didn’t read or see that notice that it
             was not adequate notice[,] which is required under
             the rules and the law.

Id. at 3-4 (emphasis omitted; citations to notes of testimony reformatted).

        Following our careful review of the record, we agree with the trial

court’s assessment that no fraud or a breakdown in the operation of the

court occurred in this matter.       See Yohe, 641 A.2d at 1212.           The

Philadelphia Traffic Court clearly provided appellant with adequate notice of

the date and location of his summary trial on both of his citations, and

mailed proper notice of his convictions in absentia to the address where

appellant resided, which was the same address listed on his driver’s license.

(See Traffic Citations, Nos. P1V94FXXW20 and P1V94GB2727, 8/5/12;

Philadelphia Traffic Court Notice of Conviction In Absentia, 10/11/12;

Commonwealth’s Exhibit A.) Additionally, appellant’s appellate rights were

set forth on the citations and notice of conviction that were mailed to his

residence. (Id.) Appellant’s final claims of trial court error, therefore, must

fail.



                                     - 10 -
J. S62036/18

     Based on the foregoing, we affirm the November 2, 2016 order

denying appellant’s petition for leave to appeal nunc pro tunc.

     Order affirmed.



     Lazarus, J. joins this Memorandum.

     McLaughlin, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/5/19




                                   - 11 -
