J-S84030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 2266 EDA 2015


          Appeal from the Judgment of Sentence Dated June 16, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003979-2015


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 March 18, 2015, [Appellant] appeared before . . . the
        Philadelphia Municipal Court, and pleaded guilty to the charge of
        Terroristic Threats (18 Pa. C.S. § 2706(a)(1)), under docket
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  We note that Appellant has another appeal, at No. 2127 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-0003698-2015.
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      number MC-51-CR-0001704-2015. [Appellant] was sentenced
      to 18 months’ probation. On April 15, 2015, [Appellant] filed a
      timely notice of appeal pursuant to Pa.R.Crim.P. 1008, seeking a
      new trial de novo in the Court of Common Pleas.

         The case was listed for status on May 6, 2015, at which time
      [Appellant] failed to appear. His counsel was permitted to
      accept service and the case was continued to June 15, 2015.

         On June 15, 2015, [Appellant] again failed to appear.
      Pursuant to Rule 1010(B), this Court dismissed the appeal and
      entered judgment on the Municipal Court sentence of 18 months’
      probation.

         This timely appeal followed.

Trial Court Opinion, 2/9/16, at 1.

      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

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).


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      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.    Legal authority does not support

Appellant’s argument.

      We initially note that Appellant has waived his claim because he was

represented by counsel throughout the proceedings below and he did not

request a jury trial in absentia or object when the court did not provide one.

See 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).        The fact that Appellant

asserts   a   constitutional   right   does   not   change   this   result.   See

Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013) (finding

appellant’s constitutional challenges waived for failure to raise them before

the trial court).

      Moreover, in the absence of waiver, Rule 1010(B) supports the

determination of the trial court, where Appellant has offered no explanation

for his failure to appear.     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).


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       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). 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

       Here, the trial court observed that Appellant “failed to appear not

once, but twice.” Trial Court Opinion, 2/9/16, at 2. The trial court explained

its “appropriate exercise of discretion under Rule 1010(B),” stating that,

“after waiting until 9:55 AM, and no explanation having been offered, the

Court noted [Appellant’s] failure to appear and dismissed his appeal.” Id.,

citing N.T., 6/15/15, 3.


____________________________________________


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




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     Upon review, we find that the trial court did not abuse its discretion in

dismissing Appellant’s appeal and reinstating his judgment of sentence. We

therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2017




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