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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. ANDRE WILLIAMS Appellant No. 2127 EDA 2015

Appeal from the Judgment of Sentence Dated June 17 , 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0003698

- 2015

BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J. *
MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 10, 2017 Appellant, Andre Williams, appeals from the order of the Court of Common Pleas of Philadelphia dismissing his appeal for a trial de novo , and reinstating the judgment of sentence imposed by the Municipal Court of Philadelphia. 1 We affirm. The Court of Common Pleas summarized the procedural history of this case as follows:

On April 8, 2015, the matter of the Commonwealth of Pennsylvania versus [Appellant] was heard in the Municipal Court of Philadelphia . . . on the charges of possession of an

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* Former Justice specially assigned to the Superior Court.

1 We note that Appellant has another appeal, at No. 2266 EDA 2015, in which he raises this same issue with respect to a similar disposition at a different Court of Common Pleas docket number, CP

- 51

- CR

- 0003979

- 2015.J

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instrument of crime and terroristic threats. That court found [Appellant] guilty of terroristic threats, and imposed a sentence of six (6) to twelve (12) months of incarceration with immediate parole a fter six (6) months followed by twelve (12) months of reporting probation. [Appellant] filed a Notice of Appeal for a trial de novo before the Court of Common Pleas that same day. On April 30, 2015, [Appellant] was scheduled to appear before this court f or his Formal Arraignment. On that date, [Appellant] failed to appear and this court issued a subpoena instructing [him] to return to this court for trial on June 17, 2015 at 9:00 a.m. Defense attorney Michael Sanuck accepted service on behalf of [Appell ant]. On June 17, 2015, [Appellant] failed to appear for trial. At approximately 11:04 a.m., the court dismissed the appeal pursuant to Pennsylvania Rule of Criminal Procedure 1010(B), adjudicated [Appellant] guilty and reinstated the Municipal Court sent ence of six (6) to twelve (12) months of incarceration with immediate parole after six (6) months followed by twelve (12) months of reporting probation. A bench warrant was issued that same day and later lifted by the Honorable Harvey W. Robbins in Munici pal Court. [Appellant] filed a timely Notice of Appeal. After receiving the notes of testimony of the June 17, 2015 hearing as ordered by [Appellant], a timely Statement of Errors in accordance with Pennsylvania Rule of Appellate Procedure 1925(b) was fi led. Trial Court Opinion, 12/16/15, at 1

- 2. On appeal, Appellant presents a single issue for our review: Did not the Court of Common Pleas violate [Appellant’s] constitutional right to a jury trial in dismissing [his] trial de novo and reinstating his Municipal Court conviction and judgment of sentence, insofar as [Appellant] had never waived his right to a jury trial for those offenses? Appellant’s Brief at 3. Our standard of review is whether the trial court abused its discretion or committed an error of law, and whether competent evidence supports theJ

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trial court’s findings. See Commonwealth v. Askins , 761 A.2d 601, 603 (Pa. Super. 2000), appeal dismissed as improvidently granted , 782 A.2d 508 (Pa. 2001). “An abuse of discretio n is not a mere error in judgment, but rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law.” Commonwealth v. Cox , 115 A.3d 333, 336 (Pa. Super. 2015) (citations omitted), appeal denied , 124 A.3d 308 (Pa. 2015). Appellant argues that he had a constitutional right to a jury trial which he never waived. Appellant’s Brief at 5. He asserts that “[m]erely failing to appear for court on one day does not waive or forfeit that right, particularly where other remedies are available.” Id. He also maintains that “[i]nsofar as the judge’s actions were purportedly authorized by Pa.R.Crim.P. 1010(B), that rule of criminal procedure cannot trump the Constitutions of the United States and Pennsylvania.” Id. at 5

- 6 . We disagree. As the Commonwealth correctly observes, Appellant waived this argument because he “was represented by counsel throughout the proceedings below and there is nothing in the record to indicate that he requested a jury trial in absentia or obje cted when the court did not provide one.” Commonwealth Brief at 6, citing Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and may not be raised for the first time on appeal). Appellant’s assertion of a constitutional right does not chan ge this result. See, e.g., Commonwealth v. Miller , 80 A.3d 806, 811 (Pa. Super.J

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2013) (finding appellant’s constitutional challenges waived for failure to raise them before the trial court). Even in the absence of waiver, Appellant’s claim is without mer it. Pennsylvania Rule of Criminal Procedure 1010(B), governing Philadelphia Municipal Court procedures, states: If 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. Pa.R.Crim.P. 1010(B). See Commonwealth v. Akinsanmi , 55 A.3d 539, 540

- 541 (Pa. Super. 2012) (when a defendant fails to appear for a summary appeal and does not provide good cause , dismissal of the appeal is proper). The comment to Rule 1010(B) explains: Paragraph (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. If the appeal is dismissed, the Common Pleas Court judge must enter judgment and order execution of any sentence imposed by the Municipal Court judge. Nothing in this rule is intended to preclude the judge from issuing a bench warrant when the defendant fa ils to appear. Id. , cmt. 2 Because Appellant failed to appear for his summary appeal and offered no reason for his failure to do so, the trial court acted properly in applying Rule 1010(B), and we affirm its decision.

____________________________________________ 2 Pennsylvania Rule of Criminal Procedure 462 applies to trials de novo in all counties outside of Philadelphia. It similarly provides that “[i] f the defendant fails to appear, the trial judge may dismiss the appeal and enter judgment in (Footnote Continued Next Page)J

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The Honorable Vincent N. Melchiorre, sitting as the trial court, has authored a comprehensive opinion which expands upon the facts and law discussed above, in determining that Appellant is not entitled to relief. Judge Melchiorre cites prevailing legal authority, and notes that Appellant, “a t no time” provided the trial court “with an excuse for not appearing on June 17, 2015[].” Trial Court Opinion, 12/16/15, at 6 n.3. We adopt and incorporate the trial court’s opinion in disposing of this appeal. The parties shall attach a copy of the t rial court’s December 16, 2015 opinion in the event of further proceedings in this matter. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/10/2017

(Footnote Continued)

_______________________ the court of common pleas on the judgment of the issuing authority.” Pa.R.Crim.P. 462(D).J

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-2 18 Pa. C.S.A. § 2706 I 18 Pa. C.S.A. § 907 Formal Arraignment On that date, the Defendant failed to appear and this court issued a On April 30, 2015, the Defendant was scheduled to appear before this court for his· 

### novo before the Court of Common Pleas that same day. twelve (12) months of reporting probation. The Defendant filed a Notice of Appeal for a trial de to twelve (12) months of incarceration with immediate parole after six (6) months followed by That court found the Defendant guilty of and terroristic threats, and imposed a sentence of six (6) Williams, Sr., on the charges of possession of an instrument of crime' and terroristic threats.' Williams was heard in the Municipal Court of Philadelphia before the Honorable Marvin L. On April 8, 2015) the matter of the Commonwealth of Pennsylvania versus Andre I. FACTS and PROCEDURAL IDSTORY DECEMBER 16, 2015 MELCIDORRE, J. ANDRE WILLIAMS SUPERIOR COURT NO. 2127EDAFILE.D



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... -tu; ., OPINION vs. CP-51-CR-0003698-2015 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMM:ON PLEAS

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION Circulated 01/25/2017 10:55 AM2

evidence of a willful failure to appear in court. b. The trial court erred in quashing the trial de nova, insofar as there was no unconstitutional. R. Crim. P. 101 O(B) allows a trial de nova, to be quashed under these circumstances, the rule is Court conviction was obtained without a jury or the opportunity to demand a jury. Insofar as Pa. Constitutional right toa jury trial. The defendant at no time waived this right, and the Municipal Municipal Court conviction and sentence, violated the defendant's Pennsylvania and Federal a. The quashing of defendant' s trial in the Court of Common Pleas, reinstating the The Defendant raises the following issues verbatim on appeal: 

### II. ISSUES 

### ON APPEAL Procedure 1925(b)was filed. Defendant, a timely Statement of Errors in accordance with Pennsylvania Rule of Appellate Appeal. After receiving the notes of testimony of the June 17, 2015 hearing as ordered by the Honorable Harvey W. Robbins in Municipal Court. The Defenda11:t filed a timely Notice of months of reporting probation. A bench warrant was issued that same day and later lifted by the . (12) months of incarceration with immediate parole after six (6) months followed by twelve (12) adjudicated the Defendant guilty and reinstated the Municipal Court sentence of six (6) to twelve this court dismissed the appeal pursuant to Pennsylvania Rule of Criminal Procedure 101 O(B), On June 17, 2015, the Defendant failed to appear for trial. At approximately 11:04 a.m., subpoena instructing the Defend8!1t to rettim to this court for trial on June 17, 2015 at 9:00am. Defense attorney Michael Sanuck accepted service on behalf of the D_efendant.3

III. DISCUSSION The Superior Court's 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

. 101 O(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, emf.
Rule 101 O(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!' · · · In the instant case, the 'Defendant argues that the quashing of his trial in the Court of Common Pleas and reinstating the Municipal Court conviction and sentence violated his

. Constitutional right to a jury trial: He further argues that at no time did he waive this right, and the Municipal Court conviction was obtained without a jury or the opportunity to demand a jury thereby violating his constitutional rights. This argument fails.
The right-to a trial is a fundamental guarantee of both the United States Constitution and the Pennsylvania Constitution. The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed."4

judgment corisistent with the Municipal Court judgment. This adjudication complied with· the · failed to appear for his trial de nova, this court dismissed the Defendant's appeal and entered ' he failed to appear for the June 17, 2015 de novo·hearing. Having determined that the Defendant of Common Pleas, including a trial by a jury of his peers. However, he waived that right when There is no question, that Defendant was entitled to a new trial in the Philadelphia Court a jury or the opportunity to demand a jury as suggested by the Defendant. pleas.). Therefore, there was no error in the Municipal Court conviction being obtained without from trial de nova including the right to trial by jury to the trial division of the court of common ·defertdruit

shallhave no right of trial by jury in that court, but heshall have theright of appeal· 1123(a)(2). See also, Schedule to Art. V of Pa. Const., §16(r)(iii) (In Municipal Court cases, the nova, including the right of trial by jury, to the court of common pleas." 42 Pa. C.S.A. § that, after conviction in Municipal Court, a defendant "shall have the right of appeal for trial de court). In order to preserve the constitutional right to a jury trial, the Commonwealth provides (In cases under this paragraph the defendant shall have no right of trial by jury in the municipal No jury trials 

## are conducted in Philadelphia Municipal Court. 42 Pa. C.S.A. § l 123(a)(2) Court. Therefore, initial jurisdiction of Defendant's case was vested only in the Philadelphia Municipal of imprisonment up to five years. See 18 Pa. C.S.A. 

### § 2706, 18 Pa. C.S.A. §1Q6(b)(6). C.S. §l 123(a)(2)

.. Terroristic Threats is a misdemeanor offense which can be punished by a term In Philadelphia, misdemeanor charges are initially prosecuted in Municipal Court. 42 Pa. heretofore, and the right thereof remain inviolate!' Pa. Const. Art. 1, §<5. U.S. Const. Art. 6. Similarly, our Pennsylvania Constitution states: "Trial by jury shall be as5

A.2d 735, 739 (Pa. 1998) (holding that when a defendant voluntarily absents himself from the proceed in absentia remains within the discretion of this Court. Commonwealth v. Wilson, 712 voluntarily and without cause prior to sentencing may be sentenced in absentia). The decision to Commonwealth v, Bond, 670 A.2d 678, 679 (holding that a defendant who leaves the courtroom overtaxed judicial system until the trial date meets with her pleasure and convenience); allow an accused at large upon bail to immobilize the commencement of trial and frustrate an Commonwealth v. Sullens, 619 A.2d 1349, 1352 (Pa. 1992) (stating that a contrary rule would cause at the time his trial is scheduled to begin, he may be tried and sentenced in absentia. the trial de novo. Pa. R. Crim. P. 1010 cmt. What's more, when a defendant is absent without dismiss an appeal when "the judge 

### 'determines' that the defendant is absent without cause" from consistent with the Municipal Court judgment. Pa. R. Crim. P. lOlP(B). The trial court may de novo, the trial court may dismiss the appeal, and thereafter, enter judgment in a manner When a defendant appeals a Municipal Court conviction and fails to appear for his trial was no evidence of a willful failure to appear in court. This argument must also fail. Lastly, Defendant argues that this court erred in quashing the trial de novo because there Statement of Errors that raises these issues without any particularity. belabored discussion of the due process clause or the right to a jury trial in response to a or any case law that challenges its constitutionality. As such, this court will not engage in a After extensive searching, this court is not aware of any legislation that supersedes Rule 10 lO(B) allows a trial de novo to be quashed under these circumstances, the rule is unconstitutional." The second part of Defendant's argument claims that "Insofar as Pa. R. Crim. P. 1010(B)



# . argument lacks merit. clear and unambiguous dictates of Rule lOlO(B). Thus, this court finds that Defendant's6 4 Paragraph (B) of Rule 1010 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. Pa. R. Crim. P. Rule 101 O{b). cmt. See also Commonwealth v. Akinsanmi, 55 A.3d 539, 540-41 (Pa

. .Super. 2012) (noting "[w]hen a 3 At no time has the Defendant given this court an excuse for not appearing on June 17, 2015; there has

. been no claim of a serious accident, illness, natural disaster, or unforeseen circumstance that was out of his control. dismissed the appeal pursuant to Pennsylvania Rule of Criminal Procedure lOlO(B), adjudicated the Defendant guilty and reinstated the Municipal Court sentence. 4 representations were.made 

### by counsel as to why the Defendant was !}Ot present. 3 This court Approximately two hams later, at 11:04 a.m., the Defendant still .had not appeared and no reflecting the advance defense request and holding the matter open for the Defendant's arrival. Public Defender because of missing discovery. On June 17th, this court marked its' trial sheets · ·- · ·· Additionally, on June 15, 2015, this court received anadvanceddeferrse 

### requestfrorrr the ,. ·. in contact with. Office ( or defense attorneys in general) does not accept service for a defendant that they are not Defendant. And while not reflected on the record, this court is aware that the Public Defenders' 17, 2015 at 9:00arn. Defense attorney Michael Sanuck accepted service on .behalf of the and this court issued a subpoena instructing the Defendant to return to this court for trial on June scheduled to appear before this court for a formal arraignment. On that date, he failed to appear called. As previously stated, the record reflects that on April 30, 2015, the Defendant was plain: meaning of Rule IOIO(B) because he was not present in the courtroom when his case was In the matter sub judice, the Defendant failed to appear for his trial de nova under the 1168 (Pa. Super. 2001) (stating the standard of review). should not disturb this court's adjudication of the matter. Commonwealth v. Parks , ?68 A.2d discretion to continue without delay). Absent a manifest abuse of injustice, the reviewing court trial proceedings without cause, he has waived his right t~ be present, and the trial court retains-7

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). VfN~,J. 

### BY-THE"COURT:· affirmed. in this case. For the reasons set forth above, Defendant's judgment of sentence should be prejudicial or reversible error and nothing to justify the granting of Defendant's request for relief In summary, this court has carefully reviewed the entire record and finds no harmful, IV. CONCLUSION the Defendant's argument lacks merit. Municipal Court judgment. Clearly, this does not constitute a manifest abuse of discretion, and 1010(8) requires - this court dismissed the appeal and entered judgment consistent with the .1 OlO(B). Determined to continue without delay - and following the methodology that Rule This court found that the Defendant had failed to appear within the meaning of Rule