Com. v. Acheson, M. ( 2017 )

J-A12024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL B. ACHESON :
:
Appellant : No. 1732 WDA 2016
Appeal from the Judgment of Sentence October 12, 2016
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-SA-0001865-2016
BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JULY 19, 2017
Appellant, Michael B. Acheson, appeals from the judgment of
sentence, imposed October 12, 2016, following a trial de novo resulting in
his conviction of three summary traffic violations. We affirm.
We adopt the following statement of facts from the record and the trial
court’s opinion. In July 2016, Appellee received citations for operation of a
vehicle without required financial responsibility, failure to carry vehicle
registration, and driving an unregistered vehicle, all summary traffic
violations.1 In September 2016, Appellant was found guilty in absentia.
Appellant pro se timely appealed from the summary conviction
pursuant to Pa.R.Crim.P. Rule 460, and a de novo hearing was scheduled in
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1
75 Pa.C.S. §§ 1786(f), 1311(b), and 1301(a), respectively.
J-A12024-17
the Court of Common Pleas of Allegheny County. In October 2016,
Appellant failed to appear for the de novo hearing, and the Court of Common
Pleas noted that the Appellant had “not called or contacted the court in any
manner.” Trial Court Opinion, 12/5/2016. The court dismissed the appeal
and entered judgment on the judgment of the issuing authority in
accordance with Pa.R.Crim.P. Rule 462(D). The court imposed fines in the
amount of $300 for operating a vehicle without required financial
responsibility, $25 for failure to carry registration, and $25 for driving an
unregistered vehicle, plus costs.
Appellant pro se filed a notice of appeal. The trial court did not direct
compliance with Pa.R.A.P. 1925(b).
On appeal, the Appellant raises the following issues for our review:
1. Whether [Appellant] operated a motor vehicle without
required financial responsibility?
2. Was the car and driver registered in the state of
Pennsylvania?
3. Was the [Appellant] given 24 hours to produce registration?
Appellant’s Brief at 3.
The Appellant suggests through his issues presented that the evidence
supporting his conviction was insufficient. However, because Appellant’s
appeal was dismissed for failure to appear, we must review the court’s
dismissal as a prefatory matter.
Our standard of review from an appeal of a summary conviction
following de novo trial is whether there was an error of law or
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whether the findings of the court are supported by the record.
The trial court's verdict will only be disturbed if there was a
manifest abuse of discretion.
Commonwealth v. Eyiwunmi Akinsanmi, 55 A.3d 539, 540 (Pa. Super.
2012) (internal citations omitted) (citing Commonwealth v. Marizzaldi,
814 A.2d 249, 251 (Pa. Super. 2002)).
An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support as to be clearly
erroneous.
Commonwealth v. Diamond, 945 A.2d 252, 258 (Pa. Super. 2008)
(citation 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); see also Pa.R.Crim.P. 462, cmt. (“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.”).
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This Court must remand for a new summary appeal hearing where:
“(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.” Commonwealth v. Dixon, 66 A.3d 794, 797 (Pa. Super.
2013) (citing Marizzaldi, 814 A.2d at 251).2 We also noted in Dixon that
the aforementioned framework often necessitates that this Court “address
the necessary cause inquiry arising from Pa.R.Crim.P. 462 in the first
instance.” Dixon, 66 A.3d at 796–797.
Applying Marizzaldi to the instant case, we conclude that no relief is
due. Appellant asserts that his failure to appear at the summary appeal
hearing was due to illness and argues that he made a number of calls in an
unsuccessful attempt to contact the court the day before the hearing to
reschedule. Appellant’s Brief at 6. However, Appellant failed to provide the
requisite affidavit asserting cause existed for his absence. 3 See Dixon, 66
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2
Additionally, the Marizzaldi Court observed that Pa.R.Crim.P. 720(D) does
not permit post-sentence motions upon the entry of an order dismissing a
summary appeal as it constitutes a final, appealable order. Marizzaldi, 814
A.2d at 252; see also Pa.R.Crim. P. 720(D).
3
Appellant’s brief did not comply with Pennsylvania Rule of Appellant
Procedure 2119(a), and he risks waiver as he fails to cite any legal authority
(Footnote Continued Next Page)
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A.3d at 797. Here, it is uncontested that Appellant was aware of the date
and time of the summary appeal hearing, and the dearth of evidence
presented by Appellant did not establish that his absence was involuntary.
Appellant’s Brief at 5. Moreover, the trial court specifically noted on the
record that Appellant had not contacted the court on the morning of the
hearing, evincing a consideration into the cause of Appellant’s absence.
Notes of Testimony (N.T.), 10/12/2016, at 2.
Accordingly, the trial court did not abuse its discretion in dismissing
Appellant’s summary appeal.
Order imposing judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
_______________________
(Footnote Continued)
to support his argument. See Estate of Haiko v. McGinley, 799 A.2d 155,
(Pa. Super. 2002). We note, “[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.” Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005)
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