J-S69042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WANDA LEVAN
Appellant No. 992 EDA 2014
Appeal from the Order entered March 5, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0013964-2013
BEFORE: GANTMAN, P.J. , FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 12, 2015
Appellant Wanda Levan appeals from an order of the Court of Common
Pleas of Philadelphia County (trial court), which dismissed Appellant’s appeal
from the municipal court for failure to appear for a trial de novo. Upon
review, we affirm.
The facts and procedural history underlying this appeal are
undisputed:
On October 22, 2013, the Municipal Court of Philadelphia
heard the [Commonwealth] in its case against [Appellant] on the
charge of knowingly and intentionally possessing a controlled
substance (“KIP”). [The municipal court] adjudicated [Appellant]
guilty, and imposed a sentence of nine months’ probation.
[Appellant] then filed a timely [n]otice of [a]ppeal for a trial de
novo before [the trial court]. . . .
On December 12, 2013, [Appellant] appeared before [the
trial court] for her [f]ormal] [a]rraignment. On that date, [the
trial court] issued a subpoena instructing [Appellant] to return to
[the trial court] for trial on March 5, 2014 at 9:00 a.m. On
March 5, [2014, Appellant] appeared in the courtroom at
approximately 9:00 a.m., but shortly thereafter, she departed
without permission from any court officer. When [the court
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crier] indicated that [the trial court] was prepared to hear
[Appellant’s] case and called [Appellant’s] case number,
[Appellant] was not present in the courtroom. The [c]ourt
[c]rier searched for [Appellant] in the hallway outside of the
courtroom, but [the crier’s] efforts yielded no fruit. Determining
that [Appellant’s] absence constituted a failure to appear for the
trial de novo, [the trial court] dismissed the appeal and entered
judgment in accordance with the [m]unicipal [c]ourt judgment.
Two hours later, [Appellant] returned to the courtroom.
Seeking reconsideration of the dismissal, defense counsel
requested a sidebar conversation off the record. During that
conversation, defense counsel informed [the trial court] that
[Appellant] had left the courtroom to defecate, with he described
as a “medical emergency.” Having determined this explanation
to be incredible, [the trial court] upheld the dismissal and
sentence.
[The trial court] dismissed [Appellant’s] appeal pursuant to
Pennsylvania Rule of Criminal Procedure 1010(B), adjudicated
[Appellant] guilty and reinstated the [m]unicipal [c]ourt
sentence of nine months’ probation. [Appellant] filed a timely
[n]otice of [a]ppeal and a timely [s]tatement of [e]rrors in
accordance with [Pa.R.A.P. 1925(b)].
Trial Court Opinion, 5/19/14, at 1-2. Following Appellant’s filing of a Rule
1925(b) statement, the trial court issued a Pa.R.A.P. 1925(a) opinion,
wherein the court concluded it properly dismissed Appellant’s appeal for trial
de novo under Rule 1010(B), relating to procedures for trials de novo,
because Appellant’s “prolonged absence from the courtroom” to relieve
herself was insufficient to establish good cause. Trial Court Opinion,
5/19/14, at 3.
On appeal, Appellant essentially raises a single issue for our review:
Did not the [trial] court err in dismissing Appellant’s de novo
appeal pursuant to Pa.R.Crim.P. 1010(B), where Appellant, who
appeared in the court on the day of trial but left the courtroom
for medical reasons and subsequently returned, did not “fail to
appear” within the meaning of the Rule, and was not “absent
without cause?”
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Appellant’s Brief at 3.1 Specifically, Appellant argues that she “did not
disobey the stricture of the Rule [1010(B)],” but to the extent the trial court
reached a contrary conclusion, her failure to follow Rule 1010(B) was a
result “of a medical emergency.” Id. at 10. In support of her argument
that she had good cause for her absence, Appellant points out that prior to
leaving the courtroom, she attempted “several times to notify the court, and
obtain permission, through a court officer, of her need to” relieve herself.2
Id.
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1
To the extent Appellant argues the trial court’s refusal to reinstate her
appeal for trial de novo deprived her of her constitutional right of due
process and trial by jury, or that the trial court should have held a trial de
novo in absentia, we decline to address such arguments on the basis of
waiver. Our review of the entire record indicates Appellant did not raise
these arguments in the trial court. It is well-established law that issues not
raised below, even those of constitutional nature, are waived. See
Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013) (finding the
appellant’s arguments that Megan’s Law IV violates the Ex Post Facto
Clauses of the United States and Pennsylvania Constitutions waived as a
result of his failure to raise them before the trial court); see also Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”). Instantly, Appellant raised the
arguments for the first time in her Rule 1925(b) statement. Claims raised
for the first time in a Rule 1925(b) statement are waived. See
Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287 (Pa.
Super. 2004) (en banc) (where issue was raised for first time in Rule
1925(b) statement, Superior Court refused to address it even though trial
court did so as a matter of leniency).
2
Insofar as Appellant challenges the trial court’s credibility determinations,
we must reject such a challenge. It is settled that, as a reviewing court, we
are bound by the trial court’s weight of the evidence and credibility
determinations. See Commonwealth v. Sanchez, 907 A.2d 477, 491 (Pa.
2006) (noting where the trial court functions as fact-finder, “appellate courts
(Footnote Continued Next Page)
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Our 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 Commonwealth v.
Askins, 761 A.2d 601, 603 (Pa. Super. 2000). The adjudication of the trial
court will not be disturbed on appeal absent a manifest abuse of discretion.
Id. “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).
Rule 1010(B) is located in Chapter 10 of the Pennsylvania Rules of
Criminal Procedure, which governs all proceedings in the Philadelphia
Municipal Courts. See Pa.R.Crim.P. 1000, cmt. Rule 1010(B) provides: “[i]f
the defendant fails to appear for the trial de novo, the Common Pleas Court
judge may dismiss the appeal and thereafter shall enter judgment in the
Court of Common Pleas on the judgment of the Municipal Court judge.” 3
Pa.R.Crim.P. 1010(B). The Comment to Rule 1010(B) explains,
_______________________
(Footnote Continued)
generally do not substitute their judgments for those of a fact-finder in
matters of credibility”), cert. denied, 551 U.S. 1106 (2007).
3
Pa.R.Crim.P. 462(D), relating to trials de novo, is the statewide (in all
counties outside of Philadelphia) equivalent of Rule 1010(B) and as such, we
apply Rule 462(D) jurisprudence to address the matter sub judice.
Rule 462(D) provides: “[i]f 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(D).
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“[p]aragraph (B) makes it clear that the Common Pleas Court judge may
dismiss an appeal when the judge determines that the defendant is absent
without cause from the trial de novo.” Id., cmt. Thus, before an appeal for
trial de novo may be dismissed for failure to appear, the trial court must
ascertain whether the absentee defendant had good cause for his absence.
See Commonwealth v. Akinsanmi, 55 A.3d 539, 540-41 (Pa. Super.
2012) (noting “[w]hen a defendant does not appear for the summary appeal
and does not provide an excuse, dismissal of the appeal is proper.
Conversely, when good cause for the absence is shown, a new trial should
be granted.”) (citations omitted).
Instantly, we agree with the trial court’s conclusion that Appellant
failed to appear for her trial de novo under the plain meaning of Rule
1010(B) because she was not present in the courtroom when her case was
called. Thus, we must resolve only the question of whether Appellant had
good cause for her absence. The record reveals that, prior to dismissing the
appeal, the trial court granted Appellant an opportunity to explain why she
failed to be present at her trial de novo. In this regard, counsel for
Appellant explained to the court: “[Appellant] was present this morning.
She had a medical emergency. She left, she tried to get my attention, she
tried to get the [c]ourt’s attention and what happened is what happened.
She is here.” N.T., 3/5/14, at 7.
Responding to Appellant’s counsel’s explanation, the trial court,
stated:
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[Appellant] failed to appear for a period of two hours. The
stated excuse for that failure to appear is that she needed to
leave to take care of her relieving herself. It doesn’t take two
hours to do that.
....
[Defendants] are required to appear when [their] case is called.
The fact that [Appellant] appeared earlier in the day, and then
left, and then came back, there is still a failure to appear under
the English definition of failure to appear.
Id. at 7-8 (emphasis added). Given the record in this case, we agree with
the trial court’s decision to dismiss Appellant’s appeal for trial de novo.
Particularly with respect to the issue of good cause, the trial court found
Appellant’s “use of the restroom did not justify her prolonged absence from
the courtroom.” Trial Court Opinion, 5/19/14, at 3. The trial court also
found:
[Appellant] was aware of her trial date: she arrived at the
courtroom on the morning of her trial. Nevertheless, she
departed from the courtroom without permission and did not
return for approximately two hours. . . .
When [Appellant] returned, the [trial court] honored her
attorney’s request to discuss [Appellant’s] truancy off the record.
After entertaining defense counsel’s explanation for the absence
and finding it to be unsatisfactory, [the trial court] found that
[Appellant] had failed to appear within the meaning of Rule
1010(B).
Id. at 4. Accordingly, the trial court did not abuse its discretion in
dismissing Appellant’s appeal because Appellant failed to demonstrate good
cause for her absence at her trial de novo.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2015
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