J-S84029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 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 

____________________________________________

*

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-S84029-16

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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 after 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 for 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 [Appellant].

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 

sentence 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 

Municipal 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 filed.

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 the 
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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 discretion 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 objected 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 change this 

result. See, e.g., Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 
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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 merit. 

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 fails 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)
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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, 

“at 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 trial 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).
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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 

MELCIDORRE, J. DECEMBER 16, 2015 

ANDRE WILLIAMS 

SUPERIOR COURT 

NO. 2127EDAFILE.D 

DEC 1 6 zo·i5 

Criminal !~pf,;~:f'.t um 

F

·1r~'t· W Jud;r,tal ri1,,i,r,..., i ··>1 ·?P.. ~v." _J.,l.,. ... -tu; ., 

OPINION 

vs. 

COMMONWEALTH OF CP-51-CR-0003698-2015 

PENNSYLVANIA 

IN THE COURT OF COMM:ON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL SECTION 

Circulated 01/25/2017 10:55 AM
2 

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 as 
5 

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's 
6 

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