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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MWAVUA MSHIMBA,
Appellant No. 2871 EDA 2015
Appeal from the Order of August 28, 2015
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-SA-0000030-2015
BEFORE: BOWES, MUNDY AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 19, 2016
Mwavua Mshimba appeals pro se from the August 28, 2015 order
granting the Commonwealth’s motion to dismiss his summary appeal as
untimely filed and denying him nunc pro tunc relief. We affirm.
The record reveals the following. On March 23, 2015, Pennsylvania
State Police Trooper Derek Thomas issued a citation to Appellant for driving
while his operating privileges were suspended.1 He was convicted in
absentia of the latter summary offense on May 21, 2015, by Magisterial
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1
Appellant represents that he initially was stopped for speeding and
received a citation for that offense. He avers that when a check of his
license revealed that his license was suspended, the trooper issued a second
citation for that violation. These facts, however, are not contained in the
certified record.
* Retired Senior Judge assigned to the Superior Court.
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District Judge Shannon L. Muir, and fined $200.00, and assessed costs of
$111.50.2
On July 15, 2015, Appellant filed an appeal to the court of common
pleas from his summary conviction. Since the appeal was filed fifty-five
days after the conviction, and outside the thirty-day appeal period under
Pa.R.Crim.P. 460, the Commonwealth moved to dismiss the appeal as
untimely. The trial court entertained argument on the motion on August 26,
2015, and thereafter granted the Commonwealth’s motion to dismiss.3
Appellant filed a motion for reconsideration on September 15, 2015, which
the court denied on September 22, 2015. Appellant filed a timely notice of
appeal to this Court on September 23, 2015, and complied with the court’s
order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. The trial court filed its Rule 1925(a) opinion on November 24,
2015, and the matter is ripe for our review.
Appellant presents two questions:
[I.] Whereas the Appellant gave statement in the [l]ower court
that he was told to file only the [c]ivil appeal at the Prothonotary
office of the Court of Common Pleas, of which instruction he
followed only to be told that he has to file for both of them,
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2
Appellant maintains that due to high blood pressure, he experienced
medical problems that caused him to arrive late for the scheduled hearing.
Again, these facts are not of record.
3
The order dated August 26, 2015 was entered on the docket on August 28,
2015.
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when the time for timely filing had passed, this made the
Appellant lose his right to appeal and should be granted the
chance to file on the basis of nunc pro tunc.
[II.] Also, considering the fact that the [A]ppellant reasoning and
reasons for filing late were not being heard or understood by the
Honorable judge, as portrayed in the transsripts.[sic] The
[A]ppellant should be entitled to a fresh hearing.
Appellant’s brief at 3-4.
We view Appellant’s opposition to the Commonwealth’s motion to
dismiss the untimely summary appeal as a request by Appellant for nunc pro
tunc relief. Our scope and standard of review from an order granting or
denying a motion to appeal nunc pro tunc is as follows:
[T]he allowance of appeal nunc pro tunc is within the sound
discretion of the trial court, and our scope of review of a decision
of whether to permit an appeal nunc pro tunc is limited to a
determination of whether the trial court has abused its discretion
or committed an error of law. Orders granting or denying [a]
petition to appeal nunc pro tunc are reversible [only] in
instances where the court abused its discretion or where the
court drew an erroneous legal conclusion.
Commonwealth v. Yohe, 641 A.2d 1210, 1211 (Pa.Super. 1994) (citations
and internal quotation marks omitted). Nunc pro tunc relief is “intended to
be an extraordinary remedy to vindicate the right to an appeal where that
right has been lost due to some extraordinary circumstance.”
Commonwealth v. White, 806 A.2d 45, 46 (Pa.Super. 2002). (citation
omitted). Such extraordinary circumstances include fraud or a breakdown in
the court’s operation due to some “default of its officers. Cook v.
Unemployment Comp. Bd. Of Review, 671 A.2d 1130, 1131 (Pa. 1996).
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At the hearing to determine whether Appellant’s failure to comply with
the thirty-day appeal period should be excused and he should be permitted
to appeal nunc pro tunc, Appellant offered the following. He established that
this citation was heard on May 21, 2015, but “[a]t that time, I sort of didn’t
go to Court.” N.T. Hearing, 8/26/15, at 6. In an effort to excuse his late
filing of an appeal from that conviction, he alluded to another charge that
would result in loss of his driving privileges. He stated that, when he went
to the court of common pleas to file his appeal, he was told by a clerk that
he could forget about the instant citation, “so I filed for the main one, that
is, [reinstatement of] my driving license.” Id. at 6. When a warrant for his
arrest issued due to non-payment of the $311 fine, he stated that he told
the sheriff that he had filed an appeal. Appellant attributed his untimeliness
to “confusion which started from the Court of Common Pleas and the
instruction I was given by Court of Common Pleas to file the appeal for my
license to be reinstated.” Id. at 7. He asked that he be given a hearing on
the citation. Id. When the court asked if he had any other explanation for
not filing the appeal within the thirty-day period, Appellant stated:
The only reason I thought that after filing the first appeal I
was done with - - I mean, I was filing for the whole citation, for
the total citation. It’s when I received this notification here on
July 7th saying that I should pay the fine of $311.50 that’s when
I came to the Court again, to the Court of Common Pleas again,
asking them why am I being asked to file another - - I need to
pay this one here why I filed another citation – I mean another
appeal.
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So, they have no reason at all, because I was arrested
completely knowing that I already filed a complete appeal for the
whole citation.
N.T. Hearing, 8/26/15, at 8.4
The thrust of Appellant’s appeal is that he was misadvised by court
personnel and that this satisfies the good cause exception for a nunc pro
tunc appeal. His brief contains no argument. He cites two cases and one
statute but does not analyze their applicability to the facts herein.
Appellant’s brief is woefully inadequate and we could dismiss this appeal on
that basis alone. However, since we are able to discern Appellant’s issue,
we will address it on the merits. See generally Commonwealth v. Lyons,
833 A.2d 245, 252 (Pa.Super. 2003) (reaching merits of issues that could be
discerned in non-compliant brief).
Preliminarily, the Commonwealth points out that Appellant offered a
different excuse in his motion for reconsideration for the tardiness of his
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4
Immediately after the hearing on the Commonwealth’s motion herein, the
court heard a summary appeal filed by Appellant at No. 19 of 2015, which
involved a March 25, 2015 traffic citation. On that date, State Police
Trooper James Sohns was following the car registered to Appellant when he
observed that, although it was raining, the windshield wipers, headlights,
and taillights were not activated. One brake light was inoperative. A check
on the vehicle indicated that its owner, Appellant herein, had a suspended
driver’s license. N.T. Hearing, 5/21/15, at 10. He initiated a traffic stop and
issued citations for periods for required lighted lamps and for driving while
under a suspension. The latter citation was withdrawn prior to the hearing
as Appellant cured the suspended license. Appellant’s summary appeal on
the remaining citation was sustained and the citation dismissed. Id. at 24.
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appeal. He maintained therein that he “followed the instructions given to
him at the Magistrates office, and that those instructions were to file notice
of appeal on the conviction.” Motion for Reconsideration, 9/15/15, at ¶3.
The Commonwealth suggests that these inconsistencies “cast doubt about
the Appellant’s accuracy in his statements to the Court.” Commonwealth
brief at 7.
While acknowledging that the court can grant nunc pro tunc relief
where a party has been prevented from timely appealing due to fraud or a
wrongful or negligent act of a court official, the Commonwealth contends
that Appellant demonstrated only his own confusion, not any fraud or
negligence on the part of any court employee. It points to Appellant’s failure
to explicitly convey who gave him instructions, the content of the
instructions, and that the instructions were incorrect. The Commonwealth
maintains further that Appellant’s pro se status does not excuse him from
following the same rules as represented defendants. See Commonwealth
v. Blakeney, 108 A.3d 739 (Pa.Super. 2014).
It is undisputed that Appellant’s summary appeal was untimely filed.
See Pa.R.Crim.P. 460 (requiring appeal from conviction or other final order
to be filed within thirty days). Nonetheless, the court properly did not
summarily dismiss Appellant’s appeal without an opportunity to explain his
untimeliness. See Commonwealth v. Alaouie, 837 A.2d 1190 (Pa.Super.
2003) (concluding it was error to dismiss the defendant’s summary appeal
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without entertaining his explanation for its untimeliness and viewing his offer
of an explanation as a request for nunc pro tunc relief). The court concluded
that Appellant simply did not provide any reason other than his “confusion
regarding the co-pendency of this matter with 875-2015 CV.” Trial Court
Opinion, 11/24/15, at 3.
The record does not establish fraud or a breakdown in the operation of
the court. At the hearing, Appellant could not identify who purportedly gave
him incorrect advice or of what it consisted. The focus of an inquiry whether
there has been a breakdown in the court’s operations is on the conduct of
the court and its officers. See e.g. Nagy v. Best Home Servs., 829 A.2d
1166, 1168 (Pa.Super. 2003) (finding a breakdown in the Prothonotary's
failure to time-stamp and docket a timely filed but defective appeal). The
trial court was not convinced that Appellant’s tardiness was due to anything
other than his own confusion. We find no abuse of discretion as Appellant’s
attempt to assign blame to anonymous court personnel was vague and
insufficient to support a finding of either fraud or a breakdown in court
operations.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2016
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