J-A20025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID TYRONE TRICE, JR.                    :
                                               :
                     Appellant                 :   No. 332 WDA 2018

               Appeal from the Order Entered February 13, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-SA-0002364-2017


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED SEPTEMBER 14, 2018

        David Tyrone Trice, Jr., appeals from the order, entered in the Court of

Common Pleas of Allegheny County, following his summary convictions for two

counts each of driving an unregistered vehicle,1 operating a vehicle without

valid inspection,2 and evidence of emission inspection3 (docket no. 2364 of

2017). After review, we vacate and remand.

        Trice was found guilty of the above-mentioned summary offenses and

ordered to pay a $150 fine, plus costs. Trice filed a summary appeal from the

convictions. Both Trice’s arresting officer and Trice failed to appear for the de

novo hearing that was held on February 13, 2018. Accordingly, the trial court
____________________________________________


1   75 Pa.C.S.A. § 1301(a).

2   75 Pa.C.S.A. § 4703(a).

3   75 Pa.C.S.A. § 4704(c)(5).
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dismissed the summary appeal and judgment was entered against Trice. See

Pa.R.Crim.P. 462(D). This timely pro se appeal follows.

      While utterly devoid of any required content for headings and sections

as prescribed in the Rules of Appellate Procedure, Trice argues that he was

unable to attend his de novo hearing because “[he] was unable to call off of

work due to [his] new start and unste[a]dy schedule.” Appellant’s Brief, at 1.

      Pursuant to Rule 462:

                                  *    *    *

      (C) In appeals from summary proceedings arising under the
      Vehicle Code or local traffic ordinances, other than parking
      offenses, the law enforcement officer who observed the alleged
      offense must appear and testify. The failure of a law enforcement
      officer to appear and testify shall result in the dismissal of the
      charges unless:

         (1)   the defendant waives the presence of the law
         enforcement officer in open court on the record;

         (2)   the defendant waives the presence of the law
         enforcement officer by filing a written waiver signed by the
         defendant and defense counsel, or the defendant if
         proceeding pro se, with the clerk of courts; or

         (3) the trial judge determines that good cause exists for
         the law enforcement officer’s unavailability and grants a
         continuance.

      (D) If the defendant fails to appear [for a trial de novo], 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(C), (D).       The Comment to Rule 462 explains that

“[p]aragraph D makes it clear that the trial judge may dismiss a summary

case appeal when the trial judge determines that the defendant is absent


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without cause from the trial de novo.”         Pa.R.Crim.P. 462(D), comment

(emphasis added).

      Here, the notes from the summary appeal indicate that in addition to

Trice’s absence, Trice’s arresting officer was also not present at the

proceeding. See N.T. Summary Appeal, 2/13/18, at 3. There is nothing in

the record indicating that Trice waived the presence of the officer via a written

waiver or that the trial judge determined that good cause existed for the

officer’s unavailability.   See Pa.R.Crim.P. 462(C)(2)-(3).     Moreover, with

regard to Trice’s failure to appear under subsection (D), the court never

inquired into whether Trice had good cause to justify his absence from the de

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

See Commonwealth v. Peralta, 173 A.3d 813, 816 (Pa. Super. 2017) (“Rule

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

the appeal[;]” “in counties outside of Philadelphia, the trial judge has

discretion to dismiss the appeal when no cause is shown.”) (emphasis in

original and added).

      Instantly, the trial court states in its Pa.R.A.P. 1925(a) opinion that

“[d]ismissal was proper, even though the officer also failed to appear.” Trial

Court Opinion, 3/28/18, at 2.        The court cites to Commonwealth v.

Akinsanmi, 55 A.3d 539 (Pa. Super. 2012) and Commonwealth v. Lowe,

698 A.2d 607 (Pa. Super. 1997), to support its decision to dismiss the appeal

because Trice did not appear for his hearing and failed to provide an excuse.

We find both cases inapposite.

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      In Akinsanmi, the defendant received a traffic citation for parking

where prohibited by sign in a Pittsburgh park. Defendant was found guilty of

the summary offense; defendant filed a notice of appeal from the summary

conviction. The trial court held a de novo hearing. When the defendant failed

to appear for the hearing, the court dismissed the appeal and judgment was

entered for the Commonwealth pursuant to Pa.R.Crim.P. 462(D). Defendant

appealed the judgment, arguing that the traffic citation was improperly issued.

Defendant did “not address her failure to attend the [de novo] hearing except

to say . . . that she was unable to return from a research conference in time

to attend the hearing.” 55 A.3d at 540. In affirming the court’s order entering

judgment against the defendant our Court stated:

      In the instant case, [Defendant] did not appear for the hearing.
      This was not a case of an involuntary absence, nor was it due to
      unforeseen circumstances. [Defendant] was attending a research
      conference. She does not explain why she did not seek a
      continuance given the scheduled conflict with her hearing. She
      does not offer any good cause for missing her hearing, other than
      being at a conference. This is not a good cause, an involuntary
      absence, or an unforeseen circumstance. The trial court properly
      dismissed the case upon [Defendant’s] failure to appear. We find
      no error in that action.

Id. at 541.

      Notably, in Akinsanmi, there is nothing indicating that the defendant’s

citing officer did not appear for the de novo hearing. Thus, the trial court’s

reliance on that authority in the instant case is misleading. Rule 462 is clear

that where an officer who observed the alleged offense fails to appear and

testify at the trial de novo, the result is that the trial court “shall . . . dismiss[]


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the charges” where the three enumerated exceptions do not apply.

Pa.R.Crim.P. 462(C) (emphasis added). The court fails to acknowledge how

the citing officer’s absence was excused in any way under subsection (C) and

why Trice’s absence justified automatic dismissal of the appeal and judgment

entered against him without first inquiring whether he was absent for good

cause and in light of the officer’s absence.

       We likewise find Lowe not applicable to the instant case. Rule 462 was

amended in 2000 and was derived from former Rules of Criminal Procedure

86(G) and 1117(c). Lowe was decided in 1997, prior to the enactment of

Rule 462, and in accordance with now-repealed Rule 1117(c). Thus, we do

not find it instructive in the instant matter.

       Accordingly, where the trial court did not inquire into whether Trice had

good cause to justify his absence from the de novo trial, Marizzaldi, supra,

Trice’s citing officer was also not present at the proceeding, and there is

nothing in the record indicating that Trice waived the presence of the officer

via a written waiver or that the trial judge determined that good cause existed

for the officer’s unavailability, Pa.R.Crim.P. 462(C)(2)-(3), we are compelled

to vacate and remand the instant matter.4

       Order vacated.      Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.


____________________________________________


4 Although Trice did not raise this issue, the clear language of Rule 462(C)
compels this decision.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2018




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