Com. v. James, R. ( 2022 )

J-A12035-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROSS JAMES :
:
Appellant : No. 1004 WDA 2021
Appeal from the Judgment of Sentence Entered July 28, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-SA-0001354-2020
BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: MAY 20, 2022
Ross James (Appellant) appeals, pro se, from the judgment of sentence
of an aggregate $100 fine, plus costs, imposed in the Allegheny County Court
of Common Pleas, following his summary convictions of failing to wear
protective headgear while operating a motorcycle, operating a vehicle while
wearing headphones or earphones, failing to yield to an emergency vehicle,
and failing to properly apply for a certificate of title. 1 On appeal, Appellant
contends the trial court violated his due process rights when it convicted him
of the summary offenses after a trial de novo without permitting him to cross-
examine the Commonwealth’s witness or present evidence in his defense. We
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3525(a), 3314(a), 3325(a), and 1103.1(b), respectively.
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agree, and, accordingly, we vacate Appellant’s judgment of sentence and
remand for a new trial.
On August 21, 2020, Appellant was issued several Vehicle Code citations
after he was stopped while operating his motorcycle. On October 8, 2020, the
magisterial district court found Appellant guilty of the above-named offenses,
in addition to operation of a vehicle without required financial responsibility.2
Appellant filed a timely appeal for a trial de novo in the Allegheny County
Court of Common Pleas. After several delays, the trial de novo commenced
on July 20, 2021. Appellant appeared pro se.
The sole witness presented by the Commonwealth was Pittsburgh Police
Officer Ben Olsen. The trial court summarized the officer’s testimony as
follows:
Officer [ ] Olsen testified that on August 21, 2020, he stopped
[Appellant] after observing him operating his motorcycle wearing
speaker earmuffs and no headgear. Officer Olsen activated his
patrol vehicle’s emergency lights and siren, but [Appellant]
continued driving about ¼ mile before he stopped. There were
ample locations for [Appellant] to have pulled over before he
stopped his motorcycle. [Appellant] had a motorcycle learner’s
permit but not a motorcycle license. The motorcycle had an
Oregon registration, which had been on the vehicle when Officer
Olsen had stopped him on November 5, 2019. . . .
Trial Ct. Op., 1/14/22, at 2 (record citations omitted).
With regard to Appellant’s lack of insurance, Officer Olsen testified that
“[n]o insurance was ever exhibited during the stop.” N.T., 7/20/21, at 12.
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2 75 Pa.C.S. § 1786(f).
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The trial court then asked Appellant if he was insured, to which he replied,
“Yes,” and produced a document as proof of insurance. See id. at 13-15. The
Commonwealth questioned the authenticity of the document, and the court
decided to continue “that aspect” of the trial so Appellant could obtain “some
official sealed document” from his insurance company. Id. at 16.
Nevertheless, the court stated that the other “counts [were] laid out,” and
“[t]he only thing [they were] talking about [was] operating without
insurance.” Id. When the Commonwealth asked the court, “just for the
record, you would be finding [Appellant] guilty on the other four counts?,” the
court responded, “Yes.” Id. at 16-17. Later, however, the court’s clerk
informed the trial court that it had to “dispose of everything[, i.e., all the
charges,] at one time.” Id. at 19. At that point, the court stated it “would
hold up on” entering the guilty verdicts, but again commented that it “heard
enough testimony” on the four counts, and was only “interested” in the
insurance information. Id. The court continued the trial for a week.
On July 28, 2021, the parties appeared again before the trial court.
Appellant asked the court to be heard on his “motion.” See N.T., 7/28/21, at
2. We note no motion was docketed on that date, and it is unclear from the
record whether Appellant handed a copy of a written motion to the court or
the Commonwealth.3 However, the Commonwealth summarized to the court
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3 We note that a motion titled “Affidavit and Motion for Reconsideration and
Motion to Recuse,” dated July 27, 2021, was docketed on August 17th, and
disposed of by the trial court as a post-sentence motion.
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that Appellant was “asking [the court] to recuse” itself. Id. at 3. Without
hearing any argument, the court summarily denied the motion. Id. Appellant
then provided the court with additional paperwork in support of his claim that
his motorcycle was insured. See id. Both the Commonwealth and Officer
Olsen argued that the documentation still failed to show Appellant’s
motorcycle was insured prior to the stop. See id. at 4-7. At the conclusion
of the hearing, the following exchange took place:
THE COURT: The appeal is denied. Everything we decided
last time. . . . The [Section] 1786f operating a vehicle without
insurance, that’s dismissed. Okay.
[Appellant]: Are you aware that you just reached a verdict
without allowing me to cross-examine or produce my own
evidence?
THE COURT: I dismissed the case.
[Appellant]: But the four other charges is what I’m talking
about. Are you dismissing all the charges? You found me guilty
without allowing me to cross-examine the witness, without
allowing me to testify and without allowing me to produce
evidence for the Court’s consideration.
THE COURT: He is found not guilty on the insurance.
Everything else is guilty. That’s it.
[Appellant]: So you have reached a verdict without allowing
me to testify or produce evidence, is that correct?
THE COURT: Okay. Next case.
Id. at 7-8. That same day, the court entered an order adjuding Appellant
guilty of the aforementioned offenses, and imposing a $25 fine, plus costs, at
each count. See Order, 7/28/21.
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On August 17, 2021, Appellant filed a motion for reconsideration and
recusal. The following day, the trial court entered an order denying the motion
because post-sentence motions are not permitted “in summary case appeals
following a trial de novo[.]” Order, 8/18/21, at 2, citing Pa.R.Crim.P. 720(D).
This timely appeal follows.4
Preliminarily, we note the pro se brief Appellant has filed in this Court
fails to comply with the Pennsylvania Rules of Appellate Procedure. See
Pa.R.A.P. 2111-2119. Indeed, Appellant’s “brief” does not include any of the
sections required under the rules, does not set forth a statement of the
question on appeal, and lacks any citation to legal authority in support of
Appellant’s contention that he was denied the opportunity to cross-examine
the Commonwealth’s witness and present any evidence in his own defense.5
See Appellant’s Brief at 1-8 (unpaginated). Nevertheless, because we are
able to discern the claim Appellant wishes to raise on appeal, and the
Commonwealth agrees Appellant is entitled to relief,6 we decline to quash this
appeal. See In re J.F., 27 A.3d 1017, 1020 (Pa. Super. 2011) (declining to
quash appeal based on defective brief when appellate court is “able to discern
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4After requesting and being granted an extension of time, Appellant complied
with the trial court’s directive to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.
5 Appellant does, however, cite the summary offenses of which he was
convicted.
6 See Commonwealth’s Brief at 7-9.
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the issues raised . . . on appeal”); Commonwealth v. Lyons, 833 A.2d 245,
252 (Pa. Super. 2003) (appellate court would review “arguments that can
reasonably be discerned from . . . defective brief”); Savoy v. Savoy, 641
A.2d 596, 598 (Pa. Super. 1994) (appellate court would address merits of
appeal when appellant’s “failure to comply with our Rules of Appellate
Procedure [did] not impede . . . ability to review the issues”).
In the present case, Appellant asserts the trial court “flagrantly trampled
[his] right to Due Process” when it declared him guilty of the four summary
offenses “before the Prosecutor rested his case” and without permitting
Appellant to cross-examine the witness or present a defense. Appellant’s Brief
at 2-3 (unpaginated). Appellant requests that we “overturn, reverse, or set
aside the convictions” and remand for “a lawful trial before an unbiased
arbiter.” Id. at 8 (unpaginated). As noted above, the Commonwealth
concedes Appellant is entitled to relief. See Commonwealth’s Brief at 8. We
agree.
It is axiomatic that — under both our federal and state constitutions —
a criminal defendant has the right to present a defense and cross-examine
any witnesses who testify against them. See U.S. Const. amends. VI, XIV;
Pa. Const. art. I, § 9. See Commonwealth v. Robinson, 491 A.2d 107, 109
(Pa. 1985) (“Criminal defendants have a constitutional right to confront
witnesses against them, which includes the right to cross-examine[.]”);
Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa. Super. 2016)
(“Procedural due process guarantees that a defendant has the right to present
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competent evidence in his defense, and the state must ensure that an indigent
defendant has fair opportunity to present his defense.”). The Pennsylvania
Supreme Court has explained:
While not capable of exact definition, the basic elements of
procedural due process are adequate notice, opportunity to be
heard, and the chance to defend oneself before a fair and
impartial tribunal having jurisdiction of the case.
Commonwealth v. Thompson, 281 A.2d 856, 858 (Pa. 1971) (emphasis
added).
Upon our review of the transcripts from both proceedings, it is clear the
trial court failed to provide Appellant with either the opportunity to cross-
examine Officer Olsen or present any evidence or testimony concerning the
offenses of which he was found guilty.7 During the July 20th proceeding, the
trial court began to question Appellant concerning whether he had proof of
insurance for the motorcycle. See N.T., 7/20/19, at 13. Although the court
did not find the paperwork Appellant provided to be sufficient, it agreed to
“continue” the matter to allow Appellant to “get ahold of [his] insurance
company” and present “some official sealed document.” evidence concerning
his insurance. See N.T., 7/20/19, at 16. However, the trial court indicated
that it found Appellant guilty of the other four counts, and it was only
“interested in one thing” at the second proceeding, that is, whether Appellant
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7 The trial court did consider Appellant’s “evidence” regarding his proof of
insurance.
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could provide sufficient proof of insurance. See id. at 16-17, 19. Indeed, the
court stated it “heard enough testimony” on the other offenses. Id. at 19.
In response to Appellant’s claim on appeal, the trial court simply
opines: “[Appellant] did not request to cross-examine Officer Olsen or present
a defense.” Trial Ct. Op., 1/14/22, at 2. However, this assertion
mischaracterizes the record. At the July 20th proceeding, the court found
Appellant guilty without first asking Appellant — who was proceeding pro se
— if he wanted to cross-examine the officer or present any evidence. See
N.T., 7/20/21, at 16-22. Further, at the conclusion of the July 28th hearing,
Appellant pointed out to the court that he was not provided the opportunity
to cross-examine the witness, testify in his own defense, or produce evidence.
See N.T., 7/28/21, at 8. The trial court ignored these claims and moved on
to the next case. See id. We conclude that, at the very least, due process
requires a trial court to ask a defendant if he intends to cross-examine a
witness, before that witness is dismissed, or if he intends to present evidence
before adjuding the defendant guilty.
Because, in the present case, Appellant was deprived of his
constitutional right to due process and to confront the witness presented
against him, we vacate the judgment of sentence, and remand for a new trial.8
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8We note that this Court has no authority to remove a trial judge sua sponte,
and Appellant has not explicitly requested that we appoint a new trial judge
on remand. See Commonwealth v. Whitmore, 912 A.2d 827, 834 (Pa.
(Footnote Continued Next Page)
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Judgment of sentence vacated. Case remanded for proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/20/2022
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2006); but see Appellant’s Brief at 8 (unpaginated) (requesting that we order
“a lawful trial before an unbiased arbiter”). Rather,
[we] presume[ ] judges of this Commonwealth are honorable, fair
and competent, and, when confronted with a recusal demand,
have the ability to determine whether they can rule impartially
and without prejudice.
Whitmore, 912 A.2d at 834 (citation omitted). Nevertheless, “Appellant is
not precluded from filing a motion to recuse on remand[,]” at which time the
trial court “can determine the question in the first instance,” and state its
reasons for granting or denying the motion on the record. Commonwealth
v. Lucky, 229 A.3d 657, 670 (Pa. Super. 2020) (citation omitted).
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