Com. v. Thompson, R. ( 2018 )

J-A23041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RODMAN C. THOMPSON, JR.
Appellant No. 334 WDA 2018
Appeal from the Order Entered December 6, 2017
In the Court of Common Pleas of Cameron County
Criminal Division at No: CP-12-SA-01-2015
BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 31, 2018
In this pro se appeal filed on December 6, 2017, Appellant, Rodman C.
Thompson, Jr., challenges various orders entered in the Court of Common
Pleas of Cameron County stemming from, in significant part, the judgment of
sentence imposed on July 26, 2016, following Appellant’s summary offense
conviction for pulling an unregistered trailer on Commonwealth highways.
75 Pa.C.S.A. § 1301(a). Upon review, we dismiss the appeal.1
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1 In his notice of appeal, Appellant suggests he is filing an appeal from orders
entered on November 14, 2017. Although the trial court entered two orders
following proceedings held on that date, the orders were actually entered on
November 28, 2017 and December 6, 2017, respectively. Because the notice
of appeal was filed within 30 days of the entry of both orders, we begin our
review accepting that the appeal is timely filed with respect to those orders.
For purposes of the caption, we shall adopt December 6, 2017 as the date of
the order from which this appeal is taken.
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As the trial court explained:
On June 19, 2015, Trooper Josiah Reiner of the [Pennsylvania
State Police] filed a citation alleging that [Appellant] violated
75 Pa.C.S.A. [§] 1301(a) of the Vehicle Code for pulling an
unregistered trailer on the highways of the Commonwealth.
[Appellant] was found guilty by the Magisterial District Judge and
this timely appeal followed. A hearing was conducted before the
undersigned on June 21, 2016, at which time Trooper Reiner and
[Appellant] testified. Both [Appellant] and the Commonwealth
have filed briefs in support of their respective positions. Although
[Appellant] has argued in his brief that his conviction for this
summary traffic offense violates six provisions of the United
States Constitution, at the time of the hearing testimony centered
on the question of whether [Appellant’s] trailer was exempt
from Pennsylvania’s registration requirements. Specifically,
[Appellant] asserted that his trailer did not have to be registered
because it was used for purposes of husbandry and therefore
exempt ostensibly under certain provisions of 75 Pa.C.S.A.
[§] 1302. The evidence, including testimony and photographs
introduced at the time of the hearing[,] leads to the following
factual determination.
[Appellant] arrived at the Pennsylvania State Police Barracks in
Emporium on the morning of June 18, 2015. [Appellant] lives at
988 Mc[D]ivitt Rd., Curwensville, Pennsylvania, some 60 miles
from the PSP Barracks in Cameron County. He was towing the
trailer in question with his pickup truck. It is not clear whether
[Appellant] had gone to the State Police Barracks to report a crime
at his house or that of a friend who apparently lives approximately
60 miles from his home on Sizerville Rd. Trooper Reiner
responded to the reported incident by following [Appellant] to the
location of the alleged incident.
Trooper Reiner observed that the trailer [Appellant] was driving
did not have a registration tag and when confronted with the
Trooper’s observation [Appellant] admitted that the trailer was
neither registered nor titled. Thereafter, [Appellant] was cited for
this and other violations of the Vehicle Code. The photographs of
the trailer reveal a basic three-sided trailer with a place for a gate
on the rear. It contained, at the time, a variety of items including
some kind of gas/type tanks and none of which appear to be
inherently agricultural in nature.
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The trailer had been converted from its former use as a manure
spreader, and in the past [Appellant] had towed it to his friend’s
house on Sizerville Rd. to help her organize the contents of her
home and he used the trailer to display the items for sale in front
of her house. The trailer had only been on the road a limited
number of occasions and was used by [Appellant] for harvesting
sweet corn and hauling fire wood.
Trial Court Opinion, 7/26/16, at 1-2 (unnumbered) (footnote omitted).
Contemporaneously with issuance of the opinion, the trial judge, Senior
Judge John A. Bozza, rendered his verdict finding Appellant guilty of a
summary offense for pulling an unregistered trailer on Commonwealth
highways in violation of 75 Pa.C.S.A. § 1301(a). He sentenced Appellant to
pay prosecution costs of $111.50 and a $75.00 fine. In his order, Judge
Bozza advised Appellant of his right to appeal to this Court within 30 days and
informed him that the finding of guilty and imposition of sentence constituted
a final order for purposes of appeal. He also informed Appellant that no post-
sentence motions could be filed other than a motion for reconsideration.
Order, 7/26/16, at 1.
Appellant filed a motion for reconsideration on August 10, 2016 and a
corrected motion for reconsideration on August 16, 2016. He did not file an
appeal to this Court within 30 days of the July 26, 2016 order. The trial court
did not rule on the motion for reconsideration.
On June 8, 2017, the Commonwealth filed a motion for a finding of
contempt for Appellant’s failure to pay costs and the fine as ordered. On June
26, 2017, Appellant filed a document styled “Petition for Writ of
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Mandamus/Quo Warranto.” Cameron County President Judge Richard A.
Masson issued an order scheduling a November 14, 2017 hearing on both
filings. Order, 9/28/17.
Prior to the November 14 hearing, Judge Masson entered an order
denying a “nunc pro tunc motion for review and joinder” filed by Appellant on
October 18, 2017. Order, 10/26/18, at 1.2 In that order, Judge Masson
suggested that Appellant was attempting to file a summary appeal nunc pro
tunc from the order entered by Judge Bozza in July 2016, an order Appellant
did not appeal. Judge Masson posited that Appellant was trying to join an
untimely appeal from the July 2016 order with a separate pending summary
appeal that Appellant filed at SA-3-2017. In that case, Appellant was
convicted of both operating a vehicle without an official certificate of inspection
and a seatbelt violation. Judge Masson denied the motion, commenting that
Appellant “cannot bootstrap a moribund appeal from a July [26], 2016
conviction to a viable appeal from a 2017 conviction in an entirely different
case and hope to revive the patently time barred summary appeal of his July
[26], 2016 conviction.” Id.
____________________________________________
2 While the October 26, 2017 order is included in the record on appeal, it is
not listed on the trial court docket. Its absence from the docket is likely
responsible for comments subsequently made by Judge Masson, indicating the
order did not exist. See Trial Court Rule 1925(a) Opinion, 3/7/18, at 3.
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During the November 14 hearing, Judge Masson heard testimony
relating to the contempt petition and determined that Appellant had not
willfully failed to comply with the July 2016 order because he misapprehended
the effect of his motion for reconsideration. Notes of Testimony (“N.T.”),
11/14/17, at 17-20. Appellant testified that he could begin paying his
outstanding costs and fine at the rate of $20.00 per month. Id.
Consequently, by order entered on December 6, 2017, the court directed
Appellant to begin monthly payments of $20.00 toward the sum owed for costs
and his fine. Order, 12/6/17.
The trial court next addressed Appellant’s petition for writ of mandamas
and quo warranto filed in response to the Commonwealth’s contempt petition.
The court denied the petition without prejudice, noting the proper procedure
for commencing an action for mandamus or quo warranto required the filing
of a complaint or, alternatively in the case of mandamus, the filing of an
agreement for an amicable action. N.T., 11/14/17, at 20-22. The order was
entered on November 28, 2017.
The trial court also considered the summary appeal filed by Appellant at
SA-3-2017 to which the court referred in its October 26, 2017 order discussed
above. Because certain evidentiary materials were not available at the time
of the hearing, the court continued those proceedings to a later date. N.T.,
11/14/17, at 33-35.
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On December 13, 2017, Appellant filed a notice of appeal in the
Commonwealth Court, asserting he was filing an appeal from five orders, i.e.,
Judge Bozza’s July 2016 order imposing judgment of sentence; a second order
entered by Judge Bozza in July 2016, denying Appellant’s motion for an
extension of time to file a reply brief; the October 26, 2017 order denying
Appellant’s “Nunc Pro Tunc Motion for Review and Joinder”; the November 28,
2017 order denying Appellant’s motion for mandamus/quo warranto; and the
December 6, 2017 order finding Appellant not in contempt, which Appellant
mischaracterizes as the order “imposing sentence, the final order in this
matter.” See Notice of Appeal, 1423 CD 2017.
On December 27, 2017, the trial court directed Appellant to file a concise
statement of errors complained of on appeal. On January 16, 2018, Appellant
filed a “Concise Statement of Errors.” On January 30, 2018, he filed an
untimely “Concise Statement of Errors, Corrected.”3
By per curiam order of February 14, 2018, the Commonwealth Court
transferred the appeal to this Court. On March 7, 2018, Judge Masson issued
a Rule 1925(a) opinion that began with the following observation:
In navigating the labyrinth of Byzantine complexity that is the
appellant’s timely concise statement of errors filed January 16,
2018 and the untimely “concise statement of errors corrected”
____________________________________________
3 The later filing was untimely and, therefore, of no consequence.
Nevertheless, we note that it appears to be identical in almost every respect
to the original statement filed on January 16, 2018, adding only an allegation
of error with relation to the prosecutor and Judge Masson.
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filed January 30, 2018, it is difficult to fathom the breadth and
scope of the issues being promoted by appellant. However, it is
clear that the manifest defects in the record may foreclose
consideration of the appeal.
Trial Court Rule 1925(a) Opinion, 3/7/18, at 1. The court provided a thorough
procedural history of the various proceedings leading to the orders from which
Appellant purports to appeal in the instant case. The court also set forth its
bases for determining Appellant is not entitled to relief on any discernible
issues he asks this Court to consider. Id. at 1-4.
In his brief, Appellant sets forth eleven issues, each with at least two,
and as many as seven, subparts. We recognize Appellant is pro se.
Nevertheless, his decision to represent himself before this Court does not
entitle him to any special consideration and certainly does not absolve him
from following our procedural rules. As this Court explained in
Commonwealth v. Maris, 629 A.2d 1014 (Pa. Super. 1993):
“We decline to become appellant’s counsel. When issues are not
properly raised and developed in briefs, when the briefs are wholly
inadequate to present specific issues for review a Court will not
consider the merits thereof.” [Commonwealth v. Sanford, 445
A.2d 149, 150 (Pa. Super. 1982].1
1 We are not insensitive to the fact that Maris is a pro se
appellant. In his brief, Maris states that he “has a limited
education and no knowledge of the law.” Appellant's brief at 3.
This Court “is willing to liberally construe materials filed by a pro
se appellant”; however, Maris is not entitled to special treatment
by virtue of the fact that he “lacks legal training.” O’Neill v.
Checker Motors Corp., [], 567 A.2d 680, 682 ([Pa. Super.]
1989).
Id. at 1017. “[A]ny person choosing to represent himself in a legal proceeding
must, to a reasonable extent, assume that his lack of expertise and legal
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training will be his undoing.” Commonwealth v. Adams, 882 A.2d 496, 498
(Pa. Super. 2005) (citation omitted).
We find Appellant’s brief deficient in many respects. For instance, his
table of citations consists of four pages of case names with partial citations
and occasional references to where in the brief the cases are mentioned.
Appellant’s Brief at 3-6. His “scope of review” is a listing of the individuals
whose actions he calls into question, including the state trooper, the
magistrate district judge, Judge Bozza, the Commonwealth’s attorney, Judge
Masson, and the prothonotary. Id. He suggests the “standard of review” is
simply “trial de novo/clear error.” Id. The statement of questions involved
does not track Appellant’s concise statement in any logical way, and his
argument is not divided into as many sections as there are questions
presented. Id. at 14-17; 22-30. In addition, his summary of argument is an
outline, rather than a concise summary of the arguments. Id. at 20-22.
Moreover, we note that the orders identified in Appellant’s notice of
appeal and his brief were entered on four different dates. As Judge Masson
observed:
The layering of appeals to five [] identified orders of varying dates
is not permitted by the Rules of Appellate Procedure. Rather, the
rules contemplate the filing of separate appeals to distinct orders
of court, not a scattergun approach that includes orders both
within and entirely outside the time for appeal allowed by Rule
903. A separate appeal is to be taken from each final order sought
to be reversed and the taking of one appeal from several
judgments is not an acceptable practice.
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Trial Court Rule 1925(a) Opinion, 3/7/18, at 3 (citing Delaney v.
Unemployment Compensation Board of Review, 28 Pa. Cmwlth. 453, 368
A.2d 1351 (1977)). See also Pa.R.A.P. 341 Note (“Where [] one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”
Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa. Super. 2007)).
Appellant’s violations of the procedural rules hinder our review. Based
on the deficiencies in Appellant’s notice of appeal and his brief, we could quash
or dismiss Appellant’s appeal for substantial failure to conform to the
requirements of our appellate procedural rules. See Pa.R.A.P. 2101; Adams,
882 A.2d at 498; Pa.R.A.P. 341 Note. Rather than quash or dismiss the appeal
based on deficiencies in Appellant’s filings, we shall explain why Appellant is
not entitled to relief from any of the five orders he challenges.
We first address some of the misconceptions held by Appellant that
cloud his vision as to the merit of his claims. For instance, he asserts the trial
court lacked jurisdiction over the trial de novo conducted by Judge Bozza in
2016. While Appellant has failed to cite any proper legal authority for the
claimed lack of jurisdiction, he apparently believes that by simply making a
“lack of jurisdiction” assertion, he can bring proceedings to a halt. He also
believes he was deprived of his constitutional right to a trial by jury for the
2016 proceedings. Both claims lack merit. What Appellant fails to understand
is that he filed a summary appeal from the magisterial district justice’s finding
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of guilt for pulling an unregistered trailer on Commonwealth highways in
violation of 75 Pa.C.S.A. § 1301(a). In accordance with Pa.R.Crim.P. 462(A),
“When a defendant appeals after . . . a conviction by an issuing authority in
any summary proceeding, . . . the case shall be heard de novo by the judge
of the court of common pleas sitting without a jury.” Further, as this Court
explained in Commonwealth v. Smith, 868 A.2d 1253 (Pa. Super. 2005):
The United States and Pennsylvania Constitutions require that
“one accused of a ‘serious offense’ be given a jury trial.”
Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86, 89
(1974). The decisions of the Supreme Court of the United States
“have established a fixed dividing line between petty and serious
offense: those crimes carrying more than six months sentence
are serious and those carrying less are petty crimes.” Id. It is
well settled, therefore, that “no right to a jury trial exists at such
trials when a sentence of six months or less is imposed . . . The
right to trial by jury preserved by the Pennsylvania Constitution is
the right as it existed when such provision was first written into
the state Constitution and does not apply to a summary
proceeding for an ordinance violation.” Bacik v.
Commonwealth, 61 Pa. Cmwlth. 552, 434 A.2d 860, 863 (1981).
Id. at 1257.
Another legal principle misunderstood by Appellant is the time limitation
for filing an appeal to this Court from a final order, such as the order entered
by Judge Bozza on July 26, 2016. In accordance with our procedural rules, a
notice of appeal must be filed within thirty days after the entry of the order
from which the appeal is taken. See Pa.R.A.P. 903(a). We strictly construe
time limitations for taking appeals and cannot extend them as a matter of
grace. See Commonwealth v. Patterson, 940 A.2d 493, 497-98 (Pa.
Super. 2007), appeal denied, 960 A.2d 838 (Pa. 2008).
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Appellant believes that his motion for reconsideration of Judge Bozza’s
July 26, 2016 order tolled the 30-day appeal period. He is wrong.
Although there are no post-sentence motions in summary appeals
following the trial de novo pursuant to paragraph (D), nothing in
this rule is intended to preclude the trial judge from acting on a
defendant’s petition for reconsideration. See the Judicial Code,
42 Pa.C.S. § 5505. See also Commonwealth v. Dougherty,
451 Pa. Super. 248, 679 A.2d 779, 784 (1996). The time for
appeal in summary cases following a trial de novo runs
from the imposition of sentence.
Pa.R.Crim.P. 720 cmt. (emphasis added). The filing of a motion for
reconsideration does not toll the appeal period. Appellant should have filed a
notice of appeal to ensure preservation of his appellate rights, in the event
the court did not expressly grant reconsideration within the thirty-day appeal
period. See Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super.
2000). In other words, the mere filing of a motion for reconsideration did not
toll the thirty-day appeal period.
As for the orders themselves, Appellant challenges two orders entered
by Judge Bozza on July 26, 2016. One is an order denying an extension of
time to file a brief. The order was not a final order, i.e., one that resolved all
issues against all parties, and therefore was not appealable. “In this
Commonwealth, an appeal may only be taken from: 1) a final order or one
certified by the trial court as final; 2) an interlocutory order as of right; 3) an
interlocutory order by permission; or 4) a collateral order.” Commonwealth
v. Brister, 16 A.3d 530, 533 (Pa. Super. 2011) (citations omitted). Just as
in Brister, there is no question that the trial court’s July 26, 2016 order
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denying an extension of time is not a final order, as it did not dispose of all
claims and all parties. Id. (citing Pa.R.A.P. 341(b)(1)).
The second order entered by Judge Bozza on July 26, 2016, is the order
finding Appellant guilty of violating the motor vehicle code and imposing fees
and costs totaling $186.50. As already explained, an appeal from that final
order had to be filed within 30 days of entry of the order. Appellant filed the
instant appeal on December 13, 2017. As an untimely appeal, this Court has
no jurisdiction to entertain it, and we may raise such jurisdictional issue sua
sponte. Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)
(citation omitted).
The third order in question is Judge Masson’s October 26, 2017 order
denying Appellant’s “Nunc Pro tunc Motion for Review and Joinder.” As the
Commonwealth suggests, it appears Appellant was asking the court to revive
the action disposed of by Judge Bozza in July of 2016 by combining it with
another summary appeal relating to his separate 2017 conviction. Again, the
2017 conviction involved driving a vehicle without a proper inspection sticker,
while not wearing a seatbelt. Commonwealth Brief at 5. At the time the
motion was filed, the trial court had not yet conducted a de novo trial on
Appellant’s summary appeal. Even if the October 26, 2017 order constituted
an appealable order, which it did not, Appellant’s time for appealing that order
would have expired 30 days later, prior to December 13, 2017 filing of this
appeal, and this Court would have no jurisdiction to entertain it.
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The fourth order challenged by Appellant is the November 28, 2017
order entered by Judge Masson granting the Commonwealth’s oral motion to
strike the “Petition for Writ of Mandamus/Quo Warranto” filed by Appellant as
a reply to the Commonwealth’s petition for contempt, and denying the petition
without prejudice. Judge Masson explained that an action in mandamus must
be initiated by either complaint or an agreement for an amicable action, while
an action in quo warranto must be initiated by complaint. See Pa.R.C.P. 1093
and 1113. Appellant instead filed a petition that did not comply with the
procedural rules for mandamus or quo warranto. Judge Masson stated that
he would grant the Commonwealth’s motion to strike while denying the
petition without prejudice “so that, if [Appellant] thinks he has some claim
that fits within a mandamus or quo warranto, if he presents it in the necessary
pleading framework, it could be addressed.” N.T., 11/14/17, at 21. Judge
Masson reasoned,
The filing of a petition for mandamus/quo warranto in a summary
appeal is beyond the pale of a cognizable pleading to initiate such
claims. This court properly determined that the fatal procedural
flaws in appellant’s petition warranted the grant of the motion to
strike and the denial of the petition without prejudice.
Trial Court Rule 1925(a) Opinion, 3/7/18, at 4 (emphasis added). The trial
court’s November 28, 2017 order striking the Appellant’s petition as a reply
to the Commonwealth’s petition for contempt did not dispose of all claims and
of all parties at that time. Therefore, the order striking the Appellant’s petition
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did not constitute a final order. Because the November 28, 2017 order was
not final under Pa.R.A.P. 341, no appeal could lie from that order.
The fifth order included in Appellant’s appeal is the December 6, 2017
order finding Appellant was not in contempt and acknowledging Appellant’s
agreement to make $20.00 monthly payments toward the $186.50 he owed
from his July 2016 summary conviction. As Judge Masson explained, a reading
of the transcript from the November 14, 2017 proceedings—which resulted in
issuance of both the November 28 and December 6, 2017 orders—makes it
manifestly clear that despite appellant’s assertion that any
sentence was imposed on November 14, 2017, the issues
addressed by the court related to the Commonwealth’s contempt
petition and appellant’s petition for writ of mandamus/quo
warranto. After the court found appellant was not in contempt,
the court engaged the appellant in an ability to pay proceeding
which result in the appellant offering to pay, albeit after some
prompting, $20 a month on the fines and costs and the court
finding that was sufficient.
Id. (some capitalization omitted). “The refusal of a lower court to enter an
order holding someone in contempt may be a ‘final order,’ but only if the
refusal is tantamount to denying the party requesting the order relief to which
that party has a right under an earlier final order.” Commonwealth v.
Guardiani, 310 A.2d 422, 424 (Pa. Super. 1973). Here, Judge Masson denied
the Commonwealth’s petition but reached an agreement with Appellant under
which he would begin paying the sums imposed following his July 2016
judgment of sentence. Under Guardiani, the December 6, 2017 order does
not constitute a final, appealable order under Rule 341.
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Appellant is attempting to appeal a final order from 2016, well beyond
the appeal period, and is also attempting to appeal from interlocutory orders.
Therefore, we dismiss this appeal.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2018
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