J-A19026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MICHAEL J. PAUL

                            Appellant                  No. 3460 EDA 2015


            Appeal from the Judgment of Sentence October 9, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-SA-0000532-2015


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                              FILED JANUARY 03, 2017

        Michael J. Paul appeals, pro se, from the judgment of sentence entered

on October 9, 2015, by the Bucks County Court of Common Pleas,

dismissing his summary appeal after he failed to appear before the trial

court. That same day, the court convicted Paul in absentia of operating a

vehicle with a suspended registration.1        On appeal, Paul claims the court

abused its discretion in dismissing his summary appeal because he was

never notified of the date for the trial de novo. Based on the following, we

vacate and remand for further proceedings.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  75 Pa.C.S. § 1371(a). The court ordered Paul to pay costs and fines as his
sentence.
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       The trial court set forth the factual and procedural background as

follows:

              On May 31, 2015, Corporal Michael Schum of the
       Bensalem Township, Bucks County, Police Department issued
       Citation No. C2413511-2 to Paul for operating a vehicle with a
       suspended registration, pursuant to 75 Pa.C.S. § 1371(a). On
       June 15, 2015, Paul entered a plea of not guilty.           At the
       subsequent District Court hearing held on July 13, 2015, which
       Paul failed to attend, Paul was found guilty by Magisterial District
       Justice Joseph P. Falcone of that violation.

             On July 24, 2015, Paul filed a Notice of Appeal from
       Summary Criminal Conviction. A hearing for summary appeals
       was scheduled for October 9, 2015, and the docket reflects that
       on September 2, 2015, a Notice of that hearing was sent to Paul
       at his address of record, which was 4407 Oakmont Street,
       Philadelphia, PA 19136.

             At the scheduled hearing on October 9, 2015, Paul was
       again not present, although Corporal Schum was, and
       consequently this Court found Paul guilty in absentia, dismissed
       his appeal and sentenced him to pay the costs and fines.

Trial Court Opinion, 2/19/2016, at 1-2. This pro se appeal followed.2

       In his sole issue on appeal, Paul contends the court abused its

discretion in dismissing his summary appeal.         He states he “was never

notified of the trial de novo date and, had he been notified, was prepared to

show that, at the time the citation was issued, his vehicle was fully insured

and his registration should not have been suspended.”            Paul’s Brief at

____________________________________________


2
    On January 26, 2016, the trial court ordered Paul to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Paul filed a concise statement on February 10, 2016. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on February 19, 2016.



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unnumbered 2.        Relying on Commonwealth v. Dixon, 66 A.3d 794 (Pa.

Super. 2013), he states a trial court must ascertain whether an absentee

defendant, like himself, had adequate cause for his absence before a

summary appeal may be dismissed. Id. Moreover, he states:

              At a re-trial of this matter Paul would be able to
       demonstrate that he received no notice of the October 9, 2015
       trial date and, had he received notice, would have appeared and
       been able to demonstrate that his license should not have been
       suspended with testimony and documentary evidence.

Id. at unnumbered 3.3

       Preliminarily, we observe that Paul’s pro se brief fails to comply with

the applicable Pennsylvania Rules of Appellate Procedure, insofar as it is

lacking with respect to Pa.R.A.P. 2111(a)(1) (statement of jurisdiction),

(a)(2) (order or other determination in question), (a)(3) (statement of both

the scope and the standard of review), (a)(4) (statement of the questions

involved), (a)(6) (summary of argument), (a)(10) (the opinions and

pleadings specified in subdivisions (b) and (c) of the rule), and (a)(11) (a
____________________________________________


3
     Paul alleges he had been unaware that his registration had been
suspended until he received the vehicle citation. He avers he then contacted
the Pennsylvania Department of Transportation (“PennDOT”) and “learned
that [PennDOT] had suspended his registration because his old insurance
carrier (Geico) reported that his insurance was terminated on February 8,
2015 (which Paul requested) but that his new carrier (Amica) had not
reported his purchasing of new insurance which began on February 9, 2015.”
Paul’s Brief at unnumbered 1. Paul further states, “On the same day the
citation was issued (and the first day that Paul had notice of the registration
suspension because of the inadvertent 23 hour gap in coverage) Paul filed
an affidavit with [PennDOT] averring that his vehicle had not been in use
during the insurance gap.” Id. at unnumbered 1-2.



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copy of the statement of errors complained of on appeal). Paul also failed to

attach a copy of the trial court’s Rule 1925(a) opinion as required pursuant

to Rule 2111(b).

       [A]lthough this Court is willing to construe liberally materials
       filed by a pro se litigant, pro se status generally confers no
       special benefit upon an appellant. Accordingly, a pro se litigant
       must comply with the procedural rules set forth in the
       Pennsylvania Rules of the Court. This Court may quash or
       dismiss an appeal if an appellant fails to conform with the
       requirements set forth in the Pennsylvania Rules of Appellate
       Procedure. Pa.R.A.P. 2101.

Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal

denied, 879 A.2d 782 (Pa. 2005) (some citations omitted). 4          While the

defects in Paul’s brief are substantial, they do not impede a meaningful

review of the matter, and therefore, we will address his argument.

       The standard of review regarding summary conviction appeals is well-

settled:

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

____________________________________________


4
   “[A]ny layperson choosing to represent himself [or herself] in a legal
proceeding must, to some reasonable extent, assume the risk that his [or
her] lack of expertise and legal training will prove his [or her] undoing.”
Commonwealth v. Gray, 608 A.2d 534, 550 (Pa. Super. 1992), quoting
Vann v. Commonwealth Unemployment Compensation Bd. of Review,
494 A.2d 1081, 1086 (Pa. 1985). As such, we cannot serve as Paul’s
counsel and litigate his claims for him.



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

(internal citations and quotation omitted).

      Pennsylvania Rule of Criminal Procedure 462 governs summary

appeals, which states, in relevant part:

      (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(A), (D). Moreover, the comment to Rule 462 provides, in

pertinent part:

      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, comment.

      We also note:

      There shall be no post-sentence motion in summary case
      appeals following a trial de novo in the court of common pleas.
      The    imposition     of   sentence   immediately     following  a
      determination of guilt at the conclusion of the trial de novo shall
      constitute a final order for purposes of appeal.

Pa.R.Crim.P. 720(D).




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      In Marizzaldi, supra, the defendant was found guilty in absentia of

several summary offenses after he failed to appear at a de novo hearing.

On appeal, the defendant attached an affidavit to his brief, asserting:

      [H]e arrived for his summary appeal hearing approximately ten
      minutes late and learned that his appeal had already been
      dismissed. He explain[ed] that he was delayed because he
      missed the bus and that he waited for the next available one,
      which arrived in the City of Pittsburgh a few minutes after his
      hearing was scheduled to begin. He also state[ed] that he was
      not given an opportunity to explain to the trial court the reason
      for his tardiness.

Marizzaldi, 814 A.2d at 251. A panel of this Court concluded the trial court

made “no mention that a determination of the cause or duration of [the

defendant]’s absence was made.”       Id. at 252.    Consequently, the panel

stated it was compelled to find that “the record does not establish an effort

on the part of the trial court to make any such inquiry[.]” Id. Moreover,

the court noted, “Th[e] failure to do so is contrary to the clear intent of the

Rules and requires a remand for a trial de novo.” Id.

      More recently, in Dixon, supra, another panel of this Court found that

Marizzaldi requires the following to determine whether a remand for a new

summary appeal trial is necessary:

      (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.

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      In Dixon, the defendant explained in an affidavit that his failure to

appear at the summary appeal hearing was involuntary because he initially

went to the wrong location and then, after being given numerous erroneous

directions, he went home and missed the trial. On appeal, the panel noted a

conundrum with respect to summary appeal cases:

      The problem that arises in these types of cases is that, for a
      quite obvious reason, trial courts often dismiss the appeals
      without inquiring into whether the absentee defendant had good
      cause: the person who could offer cause for the absence is the
      absent defendant himself. In other words, there is no one
      present in the courtroom whom the trial judge can question
      regarding the reasons for the absence. Moreover, pursuant to
      Pa.R.Crim.P. 720(D), a defendant in a summary appeal case is
      not permitted to file post-sentence motions. The 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.       Consequently, this Court often must
      address the necessary cause inquiry arising from Pa.R.Crim.P.
      462 in the first instance.

Dixon, 66 A.3d at 796-797. The panel then dismissed the matter, finding:

      Nothing in [the defendant]’s affidavit indicates that the
      circumstances causing his absence were beyond his control.
      [The defendant] was aware of the time, date, and location of the
      hearing. [The defendant] travelled to downtown Pittsburgh, but
      failed to report to the correct room, which was specified in his
      court papers. After a period of time, [the defendant] went home
      without making any attempt to contact the court.            [The
      defendant]’s failure to locate the correct room for his hearing
      does not render his absence involuntary.

Id. at 798.

      Turning to the present matter, as indicated above, Paul asserts his

failure to appear at the summary appeal proceeding was the result of not

receiving notification of the hearing.

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     In dismissing the summary appeal, the trial court opined:

            Here, this Court observed that proper notice had been sent
     to Paul, as reflected by the docket entry indicating that the
     hearing for his summary appeal was scheduled for October 9,
     2015, at 9:00 AM, and that notice of that hearing was mailed to
     him on September 2, 2015, to his address of record at 4407
     Oakmont Street, Philadelphia, PA 19136. We further observed
     that the docket did not contain any subsequent entry reflecting
     the return of that notice, and we concluded that this was
     sufficient to trigger the presumption of receipt of notice by Paul.

            While we are cognizant that post-trial motions are not
     permitted in summary appeals pursuant to Pa.R.Crim.P. 720(D),
     we nevertheless observed that in his Notice of Appeal Paul did
     not attempt to provide this Court with any valid reason for his
     failure to appear at the hearing or explain in an affidavit why his
     absence was involuntary and should have been excused. Paul
     merely asserted that he did not receive that notice, which we
     determined was insufficient in accordance with case law to
     overcome the presumption of receipt.

           For example, in Breza v. Don Farr Moving & Storage
     Co., 828 A.2d 1131 (Pa. Super. 2003), the Superior Court of
     Pennsylvania affirmed a judgment entered against an appellant
     in absentia after the trial court had determined that the
     appellant “failed to provide a satisfactory excuse for its non-
     appearance.” The Superior Court observed that

        [i]n making this determination, the trial court applied the
        mailbox rule. This rule provides that proof of a mailing
        raises a rebuttable presumption that the mailed item was
        received. Samaras v. Hartwick, 698 A.2d 71, 73 (Pa.
        Super. 1997). Furthermore, the presumption under the
        mailbox rule is not nullified solely by testimony denying
        receipt of the item mailed.      Id.; see also Donegal
        Mutual      Insurance       Company       v.    Insurance
        Department, 719 A.2d 825 (Pa. Cmwlth. 1998) (finding
        that merely asserting that the letter was not received,
        without corroboration, is insufficient to overcome the
        presumption of receipt).

     Breza, 828 A.2d at 1135.         The Court concluded that
     “[Appellant’s] mere assertion that notice was not received,

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     without corroboration, is insufficient to overcome the
     presumption. Samaras; Donegal Mutual, supra. Therefore,
     we agree with the trial court that [Appellant] failed to provide a
     satisfactory excuse for its failure to appear.” Id.

            [Paul] relies upon Commonwealth v. Dixon, 66 A.3d 794
     (Pa. Super. 2013), and Commonwealth v. Mesler, 732 A.2d
     21 (Pa. Cmwlth. 1999), for the proposition that a trial court’s
     failure to determine if the defendant was absent from a hearing
     without cause before dismissing a summary case constitutes
     reversible error. Those cases, and companion cases such as
     Commonwealth v. Parks, 768 A.2d 1168 (Pa. Super. 2001),
     Commonwealth v. Marizzaldi, 814 A.2d 249 (Pa. Super.
     2002), and Symanski v. Dotey, 52 A.3d 289 (Pa. Super. 2012),
     are distinguishable from the instant matter because either there
     was insufficient evidence to establish the presumption that
     notice was sent to, and received by, the appellant; the trial court
     failed to determine if a valid reason existed for the appellant’s
     absence from the summary appeals hearing; or a reasonable
     explanation for the appellant’s involuntary absence was
     subsequently suggested or presented.

            Here, [Paul] simply asserted that he did not receive notice
     of the scheduled hearing. We observed, however, that he also
     failed to attend the initial summary hearing at the District Court,
     and the record was devoid of any suggestion for that absence.
     We also observed upon further review of the record that [Paul]’s
     Notice of Appeal and Statement of Matters contained an address
     under his signature that is markedly different from the address
     of record to which his Notice of hearing was sent.1

        ____________________
        1
            [Paul] signed his Notice of Appeal and Concise
        Statement of Matters with the address “10838 Harrow
        Road, Philadelphia, PA 19154,” whereas the address of
        record to which the Notice was sent is “4407 Oakmont
        Street, Philadelphia, PA 19136.”

        ____________________


           [Paul] is statutorily required, pursuant to 75 Pa.C.S.A. §
     1515, to notify the Pennsylvania Department of Transportation
     of a change in his address within fifteen days of that change.

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      We can only presume in the instant matter that Paul failed to
      provide such notice since the address of record is different from
      the one he included with his signature on his Notice of Appeal
      and Concise Statement, and it is clear that under such
      circumstances he is therefore precluded from asserting a defense
      of insufficient notice.       (See e.g., Commonwealth v.
      McDonough, 621 A.2d 569, 572 (Pa. 1993) (“a defendant’s
      failure to notify PennDot of a change of address pursuant to 75
      Pa.C.S.A. § 1515 precludes his or her reliance on the defense of
      insufficient notice.”))[.]

                                        …

            This Court was unable to discern any valid reason for
      Paul’s failure to attend his summary appeal hearing scheduled
      for October 9, 2015. We determined that official notice was sent
      to Paul’s address of record and that no undeliverable return
      notice was received, which therefore established the
      presumption of receipt by Paul. We also observed that Paul is
      currently utilizing an address that is different from that of
      record, and as a consequence, he would be precluded from
      asserting a defense of insufficient notice.

Trial Court Opinion, 2/19/2016, at 4-7 (one footnote omitted).

      We are compelled to disagree for several reasons. First, we note that

similar to Marizzaldi, the testimony from the de novo trial fails to

demonstrate any court inquiry into the cause of Paul’s absence.         At the

October 9, 2015, summary appeal hearing, the Commonwealth pointed out

that Paul was not present. N.T., 10/9/2015, at 2. The court then stated the

following:   “Michael Paul.   Michael Paul.   I see no response.   We find the

defendant guilty in his absence.” Id.

      Second, we find nothing in the certified record reveals that notice of

the summary appeal hearing was sent to Paul.          Contrary to the court’s

statement, the docket does not explicitly reflect that notice was sent to Paul.

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It merely states: “Hearing Notice – 09/02/2015 – Court of Common Pleas –

Bucks County.”      Summary Appeal Docket, Docket No. CP-09-SA-0000532-

2015, at 2.      Likewise, an actual copy of the notice sent to Paul was not

included in the certified record.

      Third, to the extent the trial court finds that pursuant to the “mailbox

rule,” it is presumed that Paul received notice of the de novo hearing and his

mere denial is an insufficient rebuttal, we decline to agree. Pursuant to the

mailbox rule,

      it is axiomatic that for the presumption of the receipt of a letter
      to be triggered, as a threshold evidentiary requirement, the
      party who is seeking the benefit of the presumption must adduce
      evidentiary proof that the letter was signed in the usual course
      of business and placed in the regular place of mailing …. “A
      presumption that a letter was received cannot be based on a
      presumption that the letter was mailed.” Commonwealth,
      DOT, Bureau of Driver Licensing v. Whitney, 133 Pa.
      Commw. 437, 575 A.2d 978, 979 (Pa. Cmwlth 1990).                 “A
      presumption cannot be based on a presumption.” Id.; See also
      Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753, 756 (Pa. 1963)
      (where controverted factual issue exists as to whether letter has
      been mailed, there is no presumption applicable to this
      determination).

Commonwealth v. Thomas, 814 A.2d 754, 758-759 (Pa. Super. 2002).

As such, the Commonwealth has the burden of proving that the mailbox rule

is applicable.

      Turning to the present matter, the record reveals the Commonwealth

presented no evidence at the time of the dismissal of the summary appeal

that it sent notice of the hearing to Paul.      See N.T., 10/9/2015, at 2.

Consequently, the Commonwealth has not met its burden in establishing

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Paul received proper notice of the hearing. See Thomas, 814 A.2d at 760

(concluding that “producing an untimestamped copy of a hearing notice

contained in the Clerk of Court’s file, and offering generic testimony as to

the standard mailing practices for summary appeal hearing notices” in the

county was insufficient).

      Additionally, we find the court’s reliance on Breza, supra, is

misplaced. In Breza, the issue was whether the appellant-defendant

“received the notice of appeal and complaint, which listed the arbitration

hearing date and included notice that if one or both parties failed to appear,

the matter would be heard before a judge on the same date and time.”

Breza, 828 A.2d at 1136. The applicable local, civil county rule required

“the Prothonotary shall mail by first class a copy of the notice of appeal and

the complaint and that any return be noted on the court’s docket.” Id.

(emphasis added); see also Pa.R.C.P.D.J. No. 1005. On appeal, a panel of

this Court concluded:

      [T]he docket reflects that the Prothonotary served [the
      appellant-defendant] the notice of appeal and a copy of the
      complaint by mail on November 27, 2000. There was no entry
      made on the docket that the notice or the complaint was
      returned. We find the entry on the docket was sufficient to
      establish these items had been mailed. As such, the proof of
      mailing raised the rebuttable presumption that the mailed item
      was received. Again, [the appellant-defendant]’s mere denial of
      receipt was not sufficient to overcome the presumption.

Breza, 828 A.2d at 1136.




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      Unlike Breza, our review of the present matter reveals no local,

criminal county rule that requires a return notice of appeal be docketed,

and neither the trial court nor the Commonwealth point to such a rule or

requirement. Moreover, as indicated above, the docket does not reflect that

the notice of the de novo hearing was mailed to Paul. Accordingly, we find

Breza is not controlling here.

      Lastly, the Commonwealth points out Paul did not attach an affidavit

detailing the reason he failed to appear at the summary appeal hearing but

instead, he “baldly asserts that he did not receive notice.” Commonwealth’s

Brief at 8. Indeed, in both Marizzaldi and Dixon, the defendants provided

a detailed explanation of the reasons for their absences.

      Nevertheless,   Paul’s     averment     is   substantially   similar   to   the

defendant’s allegation in Commonwealth v. Panto, 913 A.2d 292 (Pa.

Super. 2006).    In Panto, which followed Marizzaldi, the defendant was

cited for a summary offense, convicted by a district magistrate, and failed to

appear at a requested trial de novo.          On appeal, the defendant simply

alleged that she did not receive notice of the hearing date in her concise

statement in her appellate brief.       Panto, 913 A.2d at 293.              Without

discussing the lack of an affidavit, a panel of this Court vacated the

judgment of sentence and remanded the case for a new summary appeal

hearing. As such, in the matter at issue, we find the absence of an affidavit

of no consequence based on the specific facts of this case.


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       Accordingly, in the interests of justice, we conclude it is not clear from

the record that Paul received notice of his summary appeal hearing based on

the fact that the trial court dismissed his summary appeal without

considering whether he had cause to justify his absence, and because the

presumption that he received notice was improperly based on a presumption

that notice was prepared and then mailed.          See Dixon, supra; Thomas,

supra.     Moreover, Paul’s claim that he did not receive notice of the

summary appeal hearing presents a prima facie demonstration that there

was a reason for his absence and that it was involuntary. See Marizzaldi,

supra; Dixon, supra. Therefore, we vacate the judgment of sentence and

remand for a new summary appeal hearing.5

       Judgment      of   sentence     vacated.    Case   remanded   for   further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2017


____________________________________________


5
  We highly recommend Paul: (1) provide the trial court with his current
address; (2) notify PennDOT pursuant to Section 1515; and (3) obtain legal
counsel to assist him in the summary appeal proceeding.



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