Com. v. Andersen, M. ( 2019 )

J-A23030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MARTHA ANDERSEN,
Appellant No. 1421 WDA 2018
Appeal from the Judgment of Sentence August 28, 2018
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-SA-0000005-2018
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 31, 2019
Appellant, Martha Andersen, appeals from the August 28, 2018
judgment of sentence of the costs of prosecution, fines, and fees, imposed
after she was convicted, following a non-jury trial de novo, of violating 3 P.S.
§ 455.8(a)(2) (Vaccination required; certificate and tag). We affirm.
Following a summary trial before a magisterial district judge, Appellant
was convicted of the above-stated offense on December 19, 2017, based on
evidence that she owned 18 cats for which she was unable to produce proof
of rabies vaccinations.1 On January 11, 2018, Appellant filed an appeal with
____________________________________________
1 Section 455.8(a)(2) states:
(2) A person owning or keeping a dog or cat that is required to be
vaccinated against rabies shall produce either proof of vaccination,
or exemption status under subsection (f), within 48 hours after a
J-A23030-19
the Court of Common Pleas of Greene County. The Honorable Gerald R.
Solomon, Senior Judge of the Court of Common Pleas of Fayette County, was
assigned to hear Appellant’s trial de novo in Greene County, due to the fact
that the Honorable Farley Toothman, President Judge of the Court of Common
Pleas of Greene County, had recused from Appellant’s case.
On August 6, 2018, Appellant filed a “Motion to Dismiss for Selective
Prosecution/Prosecutorial Vindictiveness.” On August 28, 2018, Senior Judge
Solomon denied Appellant’s motion and, following her trial de novo that same
day, he found her guilty of the section 455.8(a)(2) offense. Senior Judge
Solomon sentenced her to pay the costs of prosecution, as well as the fees
and fines imposed by the magisterial district judge.
Appellant filed a timely notice of appeal with this Court on September
27, 2018. On October 22, 2018, Senior Judge Solomon ordered her to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. 2 In
that order, Senior Judge Solomon directed Appellant to file and serve the
____________________________________________
police officer, State dog warden, department official or designated
municipal animal control officer requests the proof. A dog or cat
less than 12 weeks of age may be vaccinated against rabies
according to vaccine manufacturer instructions if there is a rabies
vaccine, licensed by the United States Department of Agriculture
and listed in the current version of the National Association of
State Public Health Veterinarians Rabies Compendium, that is
labeled for use in a dog or cat less than 12 weeks of age.
3 P.S. § 455.8(a)(2).
2That order was dated October 16, 2018, but was not entered on the docket
until October 22, 2018.
-2-
J-A23030-19
statement “upon this Judge” within 21 days, and he also notified Appellant
that “any issue not properly included in the statement, timely filed and served
pursuant to subdivision (b) [of Rule 1925], shall be deemed waived.” Order,
10/22/18 (single page). On November 13, 2018, Appellant filed her Rule
1925(b) statement with the Greene County Clerk of Courts.
On December 13, 2018, Senior Judge Solomon filed a Rule 1925(a)
opinion. Therein, the judge stated that Appellant’s Rule 1925(b) statement
“was never served on this [c]ourt as ordered[,]” and, instead, Appellant had
only filed the statement with the Fayette County Clerk of Courts. Trial Court
Opinion (TCO), 12/13/18, at 2. Senior Judge Solomon explained that he had
only discovered that Appellant had filed a concise statement by examining the
docket. Id. at 1.
In addition, Senior Judge Solomon observed that Appellant “did not
request a transcript of the proceedings at issue so that it could be made part
of the certified record.” Id. at 2. The judge concluded that “[a] review of the
alleged claims of error[] shows that the allegations made by [Appellant]
cannot be resolved in the absence of the necessary transcripts.” Id. Stressing
that Appellant “bears the responsibility to request that proceedings be
transcribed, pay the appropriate transcription fees, and supply the [a]ppellate
[c]ourts with a complete record for purposes of review[,]” Senior Judge
Solomon concluded that Appellant’s claims should be deemed waived, and he
did not analyze the merits of any of her issues. Id.
-3-
J-A23030-19
Now, on appeal, Appellant states the following four issues for our
review:
I. Did the trial court err by denying [Appellant’s] Motion for
Selective Prosecution without a hearing and before trial and
additionally refusing to allow Appellant to place evidence on the
record of such trial?
II. Did the court err in finding Appellant had a responsibility to
have her animals vaccinated when she had no access to them and
was prohibited from contact with them as they were in … Humane
Society possession?
III. Did the court err by refusing to consider the fact that …
Appellant had no duty to vaccinate after 10 days from when the
Humane Society seized the animals/cats when the Commonwealth
admitted … Appellant had no duty to maintain vaccination records
for the animals?
IV. Did the court err in finding … Appellant guilty of failing to
vaccinate and refusing to consider the vaccination document’s
[sic] Appellant admitted to the court when she asked the dog
warden to contact her attorney regarding the vaccinations and the
dog warden refused to do so?
Appellant’s Brief at 6-7.
We preliminarily address Senior Judge Solomon’s conclusion that
Appellant has waived her claims for our review by failing to request the
transcript of her trial de novo. This Court has explained that,
[w]ith regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any transcript
necessary to permit resolution of the issues raised on appeal.
Pa.R.A.P. 1911(a)…. When the appellant ... fails to conform to the
requirements of Rule 1911, any claims that cannot be resolved in
the absence of the necessary transcript or transcripts must be
deemed waived for the purpose of appellate review.
Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014) (citation
omitted).
-4-
J-A23030-19
In this case, it is apparent that the transcript of Appellant’s trial de novo
is required for us to meaningfully review at least two of her claims. For
instance, in support of her first issue, Appellant avers that the court erred by
precluding her from introducing certain evidence at trial. See Appellant’s Brief
at 21. In her fourth claim, she challenges certain testimony provided at trial.
Id. at 30. Without the trial transcript, we cannot discern the context or basis
of the court’s evidentiary ruling, nor assess the at-issue testimony. Therefore,
these claims are waived. See Houck, supra. Moreover, even if we could
review these claims (or the other two issues Appellant raises on appeal)
without the trial transcript, Appellant has waived all of her appellate issues by
failing to serve her Rule 1925(b) statement on Senior Judge Solomon. See
Pa.R.A.P. 1925(b)(1) (“The appellant shall file of record the Statement and
concurrently shall serve the judge.”) (emphasis added); see also
Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 224 (Pa. Super. 2014) (reiterating our Supreme Court’s bright-
line rule that “failure to comply with the minimal requirements of [Rule]
1925(b) will result in automatic waiver of the issues raised”) (quoting
Commonwealth v. Shofield, 888 A.2d 771, 774 (Pa. 2005) (emphasis added
in Greater Erie)). Accordingly, we cannot address the merits of Appellant’s
claims.
Judgment of sentence affirmed.
-5-
J-A23030-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2019
-6-