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*Retired Senior Judge assigned to the Superior Court. NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.
MARIE CHAVANNES,

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 472 MDA 2017

Appeal from the Judgment of Sentence February 15, 2017 in the Court of Common Pleas of Berks County Criminal Division at No(s): CP

- 06

- SA

- 0000119

- 2016

BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 17, 2017

Marie Chavannes (Appellant) pro se appeals from the judgment of

sentence imposed on February 15, 2017, after her summary appeal was

dismissed for her failure to appear at the hearing. We affirm.

The trial court provided the following background.

Appellant ... is the owner of a residential property located at 813 Spring Street in Wyomissing, Berks County, Pennsylvania. On August 18, 2015, Appellant [] was given notice of three code violations on her property. On September 28, 2015, Reading Codes enforcement officer Guido Marte [re

inspected] the property and issued three citations for non

compliance with local ordinances [(L.O.)]. The citations charged Appellant with violating:

L.O. § 304.2 Failure to maintain or repair gutt ers and downspouts L.O. § 304.7 Failure to repaint or repair front porch L.O. § 304.10 Failure to install handrail on steps

On February 25, 2016, Magisterial District Judge Alvin B. Robinson found Appellant guilty in absentia of all three codeJ

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violations . Each violation carried a fine and costs totaling $335.50 each. Appellant has paid $190.00 toward the fines and costs owed.

On March 29, 2016, Appellant filed an appeal with the Court of Common Pleas in Berks County. A summary appeal trial was schedu led on June 6, 2016, but had to be continued until August 1, 2016. On August 1, 2016, the trial was again continued until November 7, 2016. On November 7, 2016, the summary appeal trial was once again continued to December 14, 2016. On December 14, 2016[ ,] the summary appeal trial was rescheduled for February 15, 2017. Each continuance was at the request of or on behalf of Appellant. Each continuance order, including the order dated December 14, 2016[,] states, “No motion for continuance will be conside red within three business days of the scheduled hearing, except for an emergency occurring within that time.”

On February 15, [2017,] Appellant’s counsel, John Fielding, appeared to represent her at the summary appeal trial. Appellant’s counsel did info rm the [trial c]ourt of Appellant’s health issues, however, counsel did not express any emergency situation which would bar Appellant from appearing as scheduled. Appellant’s counsel was not prepared to proceed with the trial without Appellant and request ed yet another continuance on behalf of Appellant. On February 15, 2017, the [trial] court dismissed the appeal for failure of Appellant to appear.
Trial Court Opinion, 5/12/2017, at 1

- 2.

Accordingly, the aforementioned judgment of sentence against

Appe llant was entered on that date. Appellant timely filed pro se a notice of

appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant presents three issues for our consideration.

1. Did the [trial] court err[] in d ismissing [A]ppellant[’s] de novo trial while counsel was present on behalf of [Appellant]?J

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- 2. Did the trial court determine whether [Appellant] had adequate cause for her absence?

3. Did the [trial] court abuse its discretion by not granting a continu ance sua sponte ?
Appellant’s Brief at 5 (suggested answers omitted).

We consider Appellant’s issues together, as they are interrelated. In

doing so, we bear in mind the following.

Our standard of review is limited to whether the trial court committed an error of law and whether the findings of the trial court are supported by competent evidence. The adjudication of the trial court will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion may not be found merely becau se 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.

Pennsylvania Rule of Criminal Procedure 462 governs de

novo trials following the appeal of a summary conviction. That rule states, in pertinent part, the following:

Rule 462. Trial De Novo

(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 t he 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.J

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- The Comment to Rule 462 explains that “[p]aragraph (D) makes it clear that th e trial judge may dismiss a summary case appeal when the judge determines that the defendant is absent without cause from the trial de novo .” Pa.R.Crim.P. 462, cmt. Therefore, before a summary appeal may be dismissed for failure to appear, the trial court must ascertain whether the absentee defendant had adequate cause for his [or her] absence. In the event that good cause is established, the defendant is entitled to a new summary trial.

Commonwealth v. Dixon , 66 A.3d 794, 796 (Pa. Super. 2013) (some

citations and quotation marks omitted).

In Dixon , the Court held that a new trial is required when: “(1) a

trial court dismisses a summary appeal without considering whether the

absentee defendant had cause to justify the absence; and (2) the absentee

de fendant 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.” Id . at 797.

Here, Appellant c ontends that she had a “health emergency”

preventing her appearance at court. Appellant’s Brief at 14. Appellant has

included with this appeal an affidavit where she asserts that she is “a 67

year old elderly woman” suffering “from multiple health proble ms.”

Appellant’s Brief at Appendix G. She states that on February 15, 2017, she

was “suffering from high blood glucose[] and hypertension” and was also

“experiencing nausea[] and dizziness.” Id . She suggests that the trial courtJ

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erred by dismissing her a ppeal without determining whether she had “good

cause.” Appellant’s Brief at 15.

The trial court offered the following rationale for the dismissal of the

appeal in its opinion.

In this case, Appellant had requested several continuances. The de novo tria l was continued four times. Appellant’s failure to appear on February 15, 2017 was not excused by the appearance of counsel, where counsel was present[] only for the purpose of requesting yet another continuance. Counsel notified the [trial c]ourt that A ppellant has health issues, but could not point to a specific cause of Appellant’s absence that day. Appellant’s counsel presented no explanation to the [trial c]ourt that Appellant had an emergency or was in such ill health that she could not be present to try her
case.
The [trial c]ourt considered the cause for Appellant’s absence, but the vague excuse of “health issues” was not convincing where[] Appellant had proper notice of the hearing and the [o]rder states that continuance requests will only be
co nsidered on an emergency basis within three business days of the scheduled hearing, and Appellant had requested multiple continuances prior to February 15, 2017.

Trial Court Opinion, 5/12/2017, at 4.

The trial court reached these conclusions after extensi ve discussion at

the summary appeal hearing. Attorney Fielding represented to the trial

court that he was with Appellant the day before and “she did not have health

issues.” N.T., 2/15/2017, at 2. The trial court also requested that Appellant

be reached by phone. Attorney Fielding was able to reach Appellant’s son,

who stated that his mother’s “health is preventing her from being [at court]

or speaking on the phone.” Id . at 3. Additionally, the CommonwealthJ

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attempted to enter into a settlement agreement , but Appellant did not

authorize Attorney Fielding to accept such an agreement.

The trial court recognized that it did not have a benefit of an affidavit.

See Trial Court Opinion, 5/12/2017, at 4. However, this Court’s review of

the affidavit provided on appeal reveals no information that was not

available to the trial court at the time it decided to dismiss the appeal rather

than continue the matter. Appellant relates her various health issues, but

does not explain why she was unable to attend the heari ng even by

telephone.

Based upon the trial court’s long history with this case, including the

numerous continuances requested by Appellant, as well as the extent of the

inquiry into why Appellant could not appear, we conclude that the trial court

neither e rred nor abused its discretion by dismissing the summary appeal for

Appellant’s failure to appear. Accordingly, we affirm her judgment of

sentence.
Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/17/2017