NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37
MEMORANDUM BY SOLANO, J.
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.
The Court of Common Pleas summarized the procedural history of this case as follows:
Trial Court Opinion, 12/16/15, at 1-2.
On appeal, Appellant presents a single issue for our review:
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.
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."
As the Commonwealth correctly observes, Appellant waived this argument because he "was represented by counsel throughout the proceedings below and there is nothing in the record to indicate that he requested a jury trial in absentia or objected when the court did not provide one." Commonwealth Brief at 6, citing 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). Appellant's assertion of a constitutional right does not change this result.
Even in the absence of waiver, Appellant's claim is without merit. Pennsylvania Rule of Criminal Procedure 1010(B), governing Philadelphia Municipal Court procedures, states:
The Honorable Vincent N. Melchiorre, sitting as the trial court, has authored a comprehensive opinion which expands upon the facts and law discussed above, in determining that Appellant is not entitled to relief. Judge Melchiorre cites prevailing legal authority, and notes that Appellant, "at no time" provided the trial court "with an excuse for not appearing on June 17, 2015." Trial Court Opinion, 12/16/15, at 6 n.3. We adopt and incorporate the trial court's opinion in disposing of this appeal. The parties shall attach a copy of the trial court's December 16, 2015 opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed.
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION — CRIMINAL SECTION
FACTS and PROCEDURAL HISTORY
On April 8, 2015, the matter of the Commonwealth of Pennsylvania versus Andre Williams was heard in the Municipal Court of Philadelphia before the Honorable Marvin L. Williams, Sr., on the charges of possession of an instrument of crime
On April 30, 2015, the Defendant was scheduled to appear before this court for his Formal Arraignment. On that date, the Defendant failed to appear and this court issued a subpoena instructing the Defendant to return to this court for trial on June 17, 2015 at 9:00 am. Defense attorney Michael Sanuck accepted service on behalf of the Defendant.
On June 17, 2015, the Defendant failed to appear for trial. At approximately 11:04 a.m., this court dismissed the appeal pursuant to Pennsylvania Rule of Criminal Procedure 1010(B), adjudicated the Defendant guilty and reinstated the Municipal Court sentence of six (6) to twelve (12) months of incarceration with immediate parole after six (6) months followed by twelve (12) months of reporting probation. A bench warrant was issued that same day and later lifted by the Honorable Harvey W. Robbins in Municipal Court. The Defendant filed a timely Notice of Appeal. After receiving the notes of testimony of the June 17, 2015 hearing as ordered by the Defendant, a timely Statement of Errors in accordance with Pennsylvania Rule of Appellate Procedure 1925(b) was filed.
ISSUES ON APPEAL
The Defendant raises the following issues verbatim on appeal:
a. The quashing of defendant's trial in the Court of Common Pleas, reinstating the Municipal Court conviction and sentence, violated the defendant's Pennsylvania and Federal Constitutional right to a jury trial. The defendant at no time waived this right, and the Municipal Court conviction was obtained without a jury or the opportunity to demand a jury. Insofar as Pa. R. Crim. P. 1010(B) allows a trial de novo, to be quashed under these circumstances, the rule is unconstitutional.
b. The trial court erred in quashing the trial de novo, insofar as there was no evidence of a willful failure to appear in court.
The Superior Court's standard of review is limited to whether the trial court abused its discretion or committed an error of law and whether the findings of the trial court are supported by competent evidence. See
In the instant case, the Defendant argues that the quashing of his trial in the Court of Common Pleas and reinstating the Municipal Court conviction and sentence violated his Constitutional right to a jury trial. He further argues that at no time did he waive this right, and the Municipal Court conviction was obtained without a jury or the opportunity to demand a jury thereby violating his constitutional rights. This argument fails.
The right to a trial is a fundamental guarantee of both the United States Constitution and the Pennsylvania Constitution. The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. Art. 6. Similarly, our Pennsylvania Constitution states: "Trial by jury shall be as heretofore, and the right thereof remain inviolate." Pa. Const. Art. 1, § 6.
In Philadelphia, misdemeanor charges are initially prosecuted in Municipal Court. 42 Pa. C.S. § 1123(a)(2). Terroristic Threats is a misdemeanor offense which can be punished by a term of imprisonment up to five years. See 18 Pa. C.S.A. § 2706, 18 Pa. C.S.A. § 106(b)(6). Therefore, initial jurisdiction of Defendant's case was vested only in the Philadelphia Municipal Court.
No jury trials are conducted in Philadelphia Municipal Court. 42 Pa. C.S.A. § 1123(a)(2) (In cases under this paragraph the defendant shall have no right of trial by jury in the municipal court). In order to preserve the constitutional right to a jury trial, the Commonwealth provides that, after conviction in Municipal Court, a defendant "shall have the right of appeal for trial de novo, including the right of trial by jury, to the court of common pleas." 42 Pa. C.S.A. § 1123(a)(2). See also, Schedule to Art. V of Pa. Const., § 16(r)(iii) (In Municipal Court cases, the defendant shall have no right of trial by jury in that court, but he shall have the right of appeal from trial de novo including the right to trial by jury to the trial division of the court of common pleas.). Therefore, there was no error in the Municipal Court conviction being obtained without a jury or the opportunity to demand a jury as suggested by the Defendant.
There is no question, that Defendant was entitled to a new trial in the Philadelphia Court of Common Pleas, including a trial by a jury of his peers. However, he waived that right when he failed to appear for the June 17, 2015 de novo hearing. Having determined that the Defendant failed to appear for his trial de novo, this court dismissed the Defendant's appeal and entered judgment consistent with the Municipal Court judgment. This adjudication complied with the clear and unambiguous dictates of Rule 1010(B). Thus, this court finds that Defendant's argument lacks merit.
The second part of Defendant's argument claims that "Insofar as Pa. R. Crim. P. 1010(B) allows a trial de novo to be quashed under these circumstances, the rule is unconstitutional." After extensive searching, this court is not aware of any legislation that supersedes Rule 1010(B) or any case law that challenges its constitutionality. As such, this court will not engage in a belabored discussion of the due process clause or the right to a jury trial in response to a Statement of Errors that raises these issues without any particularity.
Lastly, Defendant argues that this court erred in quashing the trial de novo because there was no evidence of a willful failure to appear in court. This argument must also fail.
When a defendant appeals a Municipal Court conviction and fails to appear for his trial de novo, the trial court may dismiss the appeal, and thereafter, enter judgment in a manner consistent with the Municipal Court judgment. Pa. R. Crim. P. 1010(B). The trial court may dismiss an appeal when "the judge determines that the defendant is absent without cause" from the trial de novo. Pa. R. Crim. P. 1010 cmt. What's more, when a defendant is absent without cause at the time his trial is scheduled to begin, he may be tried and sentenced in absentia.
In the matter sub judice, the Defendant failed to appear for his trial de novo under the plain meaning of Rule 1010(B) because he was not present in the courtroom when his case was called. As previously stated, the record reflects that on April 30, 2015, the Defendant was scheduled to appear before this court for a formal arraignment. On that date, he failed to appear and this court issued a subpoena instructing the Defendant to return to this court for trial on June 17, 2015 at 9:00am. Defense attorney Michael Sanuck accepted service on behalf of the Defendant. And while not reflected on the record, this court is aware that the Public Defenders' Office (or defense attorneys in general) does not accept service for a defendant that they are not in contact with.
Additionally, on June 15, 2015, this court received an advanced defense request from the Public Defender because of missing discovery. On June 17th, this court marked its' trial sheets reflecting the advance defense request and holding the matter open for the Defendant's arrival. Approximately two hours later, at 11:04 a.m., the Defendant still had not appeared and no representations were made by counsel as to why the Defendant was not present.
This court found that the Defendant had failed to appear within the meaning of Rule 1010(B). Determined to continue without delay — and following the methodology that Rule 1010(B) requires — this court dismissed the appeal and entered judgment consistent with the Municipal Court judgment. Clearly, this does not constitute a manifest abuse of discretion, and the Defendant's argument lacks merit.
In summary, this court has carefully reviewed the entire record and finds no harmful, prejudicial or reversible error and nothing to justify the granting of Defendant's request for relief in this case. For the reasons set forth above, Defendant's judgment of sentence should be affirmed.