J-A18002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
SHAWN CRAWFORD
Appellant No. 1221 WDA 2016
Appeal from the Judgment of Sentence July 20, 2016 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-SA-0000075-2016
BEFORE: BOWES, LAZARUS, AND OTT, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2017
Shawn Crawford appeals from judgment of sentence of fines and costs
imposed after he was convicted of various summary violations under the
Dog Law.1 We affirm.
On August 26, 2015, Appellant’s German Shepard dog named
“Roscoe” seriously injured a dog owned by James Record. The incident
occurred off Appellant’s property and Roscoe was unrestrained. The day
after the incident, Appellant relinquished ownership of Roscoe to the
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1 The charges are: (1) harboring a dangerous dog (3 Pa.C.S. § 459-502-A (a)(1)(ii)); (2) unlawful confinement and control (3 Pa.C.S. § 459- 305(a)(3)); (3) failure to properly license dog (3 Pa.C.S. § 549-201(a)); (4) failure to vaccinate against rabies (3 Pa.C.S. § 455.8(a)(1)). J-A18002-17
Washington Area Humane Society (“the Humane Society”). The Humane
Society evaluated Roscoe and found that he was a good candidate for
adoption. Within a few weeks, a family that lived outside Fayette County
(“New Owners”) adopted Roscoe.
In October 2015, Mr. Record sent a certified letter to Appellant asking
him to pay $5,000 in veterinarian bills. Appellant did not respond. On
March 17, 2016, Fayette County Animal Control Officer Gary L. Hoffman filed
a criminal complaint against Appellant alleging numerous summary offenses
under the Dog Law. All charges were based on contemporaneous reports
from the police and animal control authorities. After one postponement, the
hearing took place on May 4, 2016, but Appellant did not appear. Based on
Mr. Record’s uncontested testimony, Appellant was found guilty, and the
magisterial district justice awarded restitution in the amount of $5,700, plus
costs and fines.
Appellant filed a timely appeal to the Court of Common Pleas on May
31, 2016. A motion to vacate the charges was filed by Attorney Molly
Maguire Gaussa on behalf of New Owners. On June 7, 2016, the trial court
held a hearing on the motion. Appellant attended but was unrepresented.
New Owners maintained that they were interested parties as they did not
want the dangerous dog label to follow Roscoe. The trial court denied the
motion.
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At that hearing, Attorney Gaussa made an oral motion for continuance
of the trial because she was unavailable on the scheduled trial date. The
trial court initially indicated that it would entertain a continuance to
accommodate Attorney Gaussa. However, after realizing that Attorney
Gaussa was representing New Owners, not Appellant, the trial court denied
the motion, finding that New Owners lacked standing to seek a continuance.
At the conclusion of that hearing, Attorney Gaussa expressed a willingness
to represent Appellant at trial, pro bono.
On July 8, 2016, Appellant filed a pro se “routine” motion for
continuance of the July 20, 2016 trial without obtaining the Commonwealth’s
consent. The trial court denied the motion without prejudice on July 11,
2016, because local rules require parties to file a “priority” motion for
continuance, which requires a hearing, when they do not have the opposing
party’s consent. Appellant did not seek the consent of the Commonwealth
or file a priority motion and, consequently, the case proceeded to trial as
scheduled on July 20, 2016.
As trial commenced, Attorney Gaussa had not entered her appearance
as Appellant’s attorney of record. Appellant appeared pro se at trial and did
not contest his guilt. The trial court asked Appellant if he had reached any
agreement with the Commonwealth, to which Appellant replied that they had
discussed the fines. Appellant represented to the court that he wanted to
contest the $5,700 restitution award lodged against him. At this point in the
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proceedings, the trial court asked Officer Hoffman to explain why the
magisterial district court had ordered restitution. Following his explanation,
the trial court asked Appellant if his challenge was limited to the amount of
the restitution fees, to which Appellant replied in the affirmative. The trial
court found Appellant guilty and reinstated the sentence imposed by the
magisterial district justice with regard to fines and costs, but vacated the
restitution award. No post-sentence motion was filed.
On August 16, 2016, Attorney Gaussa entered her appearance on
behalf of Appellant and filed this timely appeal. That same day, the trial
court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal within twenty-one days. When Appellant
failed to file a Rule 1925(b) concise statement, the trial court filed a
Statement in Lieu of Opinion on September 16, 2016, urging this Court to
dismiss the appeal since all issues were waived due to Appellant’s failure to
file the Rule 1925(b) statement. Appellant filed his Rule 1925(b) concise
statement the same day, prompting the trial court to issue a supplemental
opinion on October 20, 2016, addressing the issues identified therein “[i]n
the event that the Superior Court addresses Appellant’s claims.” Trial Court
Supplemental Opinion, 10/20/16, at 1.
Appellant presents the following issues for our review:
1. Whether the trial court erred and/or abused its discretion when it denied [Appellant] due process under the
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Pennsylvania Constitution and the Constitution of the United States?
2. Whether the trial court was without jurisdiction over this case as the subject of the criminal charges, the dog, was not owned by [Appellant] at the time charges were filed nor had the dog been kept in Fayette County for over seven months when the charges were filed against [Appellant]?
3. Whether the trial court erred and/or abuse[d] its discretion in admitting irrelevant and unfairly prejudicial evidence without defense counsel present, [when] by prior appearances on the issue at hand the court was aware of the defense counsel on this case and the circumstances for the defense counsel's unavailability the date of the scheduled summary appeal trial?
4. Whether the Court erred and/or abused its discretion in denying Appellant[’s] pro se request[] for a continuance prior to the trial date and by not affording Appellant the opportunity for a continuance at the time of the trial to allow his counsel to be present as the circumstances surrounding counsel's unavailability were known to the court?
5. Whether the court erred and/or abused its discretion in granting counsel's request for a continuance dated June 7, 2016 in motions court then proceeded to deny Appellant's direct request for a continuance?
6. Whether the trial court erred and/or abused its discretion in allowing the Appellant to proceed without counsel and enter into a guilty plea without counsel present or discussing with counsel, as this action waived his Constitutional right to be confronted by his accuser and the accuser was not present on the date of the trial?
Appellant’s brief at 8-10 (unnecessary capitalization omitted).
Preliminarily, we must address the effect of Appellant’s failure to
timely comply with Pa.R.A.P. 1925(b), which is a prerequisite to appellate
merits review. Attorney Gaussa entered her appearance and filed the appeal
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on Appellant’s behalf. Thus, Appellant was represented by counsel when the
Rule 1925(b) statement was ordered. Counsel’s failure to file a Rule
1925(b) statement has been held to constitute per se ineffective assistance
of counsel, and the remedy is to remand to permit the nunc pro tunc filing of
such a statement and to give the trial court the opportunity to address the
issues raised therein. See Pa.R.A.P. 1925(c)(3). Here, however, as in
Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009), counsel did
not completely fail to file a Rule 1925(b) statement. Rather, the statement
was untimely filed. As we recognized in Burton, the untimely filing of a
Pa.R.A.P. 1925(b) statement on behalf of a defendant seeking to appeal is
the equivalent of a complete failure to file because it results in waiver of all
issues on appeal without any reasonable basis. However, where a statement
has been filed, albeit late, and the trial court has issued an opinion
addressing the issues raised, remand would not serve any purpose. Thus,
we held in Burton that, in such circumstances, this Court may decide the
appeal on the merits.
That is precisely the situation herein. Counsel was per se ineffective in
failing to timely file the Rule 1925(b) statement. However, since such a
statement was filed and the trial court addressed the issues raised therein,
we will proceed to the merits.
Appellant alleges first that he was deprived of due process and his
right to counsel because the court denied his request for continuance and
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failed to inform him of the charges against him. In his Pa.R.A.P. 1925(b)
statement, Appellant purported to preserve this alleged error as follows:
“Appellant was denied due process.” The trial court found this statement too
vague to address, and dismissed it as meritless on that basis. We concur.
We have explained that a Rule 1925(b) statement “must properly
specify the error to be addressed on appeal.” Commonwealth v. Hansley,
24 A.3d 410, 415 (Pa.Super. 2011). “The Rule 1925(b) statement must be
specific enough for the trial court to identify and address the issue an
appellant wishes to raise on appeal.” Id. When a court has to guess what
issues an appellant is appealing, that is not enough for meaningful review.”
Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super. 2001). “A
Concise Statement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no Concise Statement
at all.” Id. at 686-87.
In the instant case, Appellant’s Rule 1925(b) concise statement
vaguely levels the accusation that there was some due process violation at
some point in time. It was not specific enough to allow for a cogent analysis
by the trial court. We find Appellant’s first issue waived for lack of specificity
in Appellant’s 1925(b) concise statement. See Pa.R.A.P. 1925(b)(4).
However, to the extent that Appellant’s due process claim overlaps other
issues specifically articulated in his Rule 1925(b) concise statement and
raised herein, we will address his concerns.
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Second, Appellant challenges the Fayette County Court of Common
Pleas’ jurisdiction to hear this case.2 He alleges that since Roscoe was
owned by persons who did not reside in Fayette County at the time charges
were filed, Fayette County lacked jurisdiction. This challenge is without
merit.
All courts of common pleas have statewide jurisdiction over any case
arising under the Crimes Code. Commonwealth v. Bethea, 828 A.2d
1066, 1074 (Pa. 2003). Appellant’s complaint actually resembles a
challenge to venue, the procedural protection designed so that a party is
tried in the court closest to where the crime occurred because the evidence
and witnesses are most likely to be located there. Id. Venue is generally
appropriate in the court with the closest geographical connection to the
events at issue. Commonwealth v. Brookins, 10 A.3d 1251, 1258-59
(Pa.Super. 2010) (citing Bethea, supra at 1075).
The facts of the instant case are undisputed. At the time of the
incident, Appellant owned Roscoe. Roscoe escaped from Appellant’s
residence and attacked Mr. Record’s dog, all within Fayette County. Further,
a Fayette County animal control officer filed the private complaint. Thus, the
2 As part of his challenge to jurisdiction, Appellant challenges his conviction as a dog owner under the definition of owner in the Pennsylvania Dog Law, 3 P.S. § 459-502(a)(3), which he maintains is unconstitutionally vague. This challenge, asserted for the first time on appeal, is waived.
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court with the closest geographical connection to the events at issue was the
Fayette County Court of Common Pleas and the venue herein was proper.
In this third issue, Appellant alleges that the trial court erred in
permitting Officer Hoffman to offer hearsay testimony without the
administration of an oath. Appellant’s brief at 28-29; Pa.R.E. 603. He
contends that this violated the Confrontation Clause and the Pennsylvania
Rules of Evidence’s prohibition against hearsay testimony. Since Appellant
did not object at the time, he failed to preserve the issue for appellate
review. However, Appellant attributes his failure to object to the fact that he
was wrongfully denied his right to counsel and “vulnerable.” Appellant’s
brief at 29. This contention, together with Appellant’s fourth issue, that the
court abused its discretion in denying a continuance to permit counsel to be
present at the summary trial, relate to Appellant’s final issue: that he was
denied the right to counsel. For ease of disposition, we address Appellant’s
sixth issue first: the right to counsel.
Appellant argues that the trial court erred by allowing him to proceed
without counsel. Appellant’s claim, at its essence, is that he should have
been afforded counsel to advise him to contest the district justice’s guilty
verdict. He suggests that if he had counsel at the summary trial, counsel
might have brought a motion to dismiss or advised Appellant to proceed
differently. See Appellant’s brief at 40. He avers that the trial court erred
by failing to advise him of his right to counsel or appointing counsel on his
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behalf or continuing the case until counsel could be present. Furthermore,
he contends that his lack of counsel resulted in the Commonwealth’s
introduction of hearsay evidence, depriving him of his right to confront his
accuser. For the following reasons, Appellant’s claims lack merit.
It is well-settled that, “[g]enerally, there is ‘no requirement, either
under the United States Constitution or under the Pennsylvania Constitution,
that defendants in all summary cases be provided with counsel.’”
Commonwealth v. Smith, 868 A.2d 1253, 1256 (Pa.Super. 2005) (quoting
Commonwealth v. Long, 688 A.2d 198, 201 (Pa.Super. 1996)). An
indigent defendant charged with a summary offense is entitled to appointed
counsel where there is a reasonable likelihood of imprisonment.
Pa.R.Crim.P. 122, 454(A)(2)(b). Further, for a summary trial, a defendant is
only entitled to be advised of a right to counsel if there is “a reasonable
likelihood of a sentence of imprisonment or probation.” Pa.R.Crim.P.
454(A)(2). A reasonable likelihood of imprisonment or probation requires
more than the mere possibility under the statute. See Commonwealth v.
Blackham, 909 A.2d 315, 318 (Pa.Super 2006) (citing Argersinger v.
Hamlin, 407 U.S. 25 (1972)).
The statute under which Appellant was charged allows for a sentence
of no more than ninety days imprisonment. 3 Pa.C.S. § 459-903(b)(1).
However, the Commonwealth did not seek imprisonment or probation, the
magisterial district justice did not sentence Appellant to imprisonment, and
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the trial court clearly had no interest in sentencing Appellant to a term of
imprisonment. In fact, as noted supra, the Commonwealth and Appellant
indicated to the trial court that the concern was the restitution, not the
underlying charges. N.T., 7/20/16, at 3, 5, 8. The trial court vacated the
restitution award. Id. at 8.
Appellant does not offer any support for his contention that he was
constitutionally entitled to counsel at his summary trial. He argues only that
he had the right to present his own defense and the right to confront the
witnesses against him, which no one contests. In this case, there was no
reasonable likelihood of a sentence of imprisonment or probation and
Appellant did not receive a sentence of imprisonment or probation. 3 Thus,
he was not entitled to counsel or to be advised by the trial court of any right
to counsel, and the trial court did not err by proceeding without counsel
present.
Nor did the absence of counsel result in any violation of the
Confrontation Clause. The Confrontation Clause of the Sixth Amendment of
the United States Constitution entitles a criminal defendant to an opportunity
to challenge the evidence and witnesses presented against him. ____________________________________________
3 While not dispositive, the fact that Appellant was not sentenced to a term of imprisonment or probation is probative. See Commonwealth v. Blackham, 909 A.2d 315, 318 (Pa.Super. 2006) (listing the fact that the appellant was not sentenced to imprisonment and only received fines as a factor in its Pa.R.Crim.P. 122 analysis).
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U.S.Const.Amend. VI; see Commonwealth v. Brown, 139 A.3d 208, 212
(Pa.Super. 2016). The Confrontation Clause applies to witnesses providing
testimony for the purposes of establishing or proving a fact in the case
against the accused. Id. (citing Crawford v. Washington, 562 U.S. 36, 51
(2004)). Thus, in this case, Appellant had the right to challenge any
evidence or testimony adduced at trial for the purpose of proving his guilt,
although he chose not to do so. He only sought relief from the restitution
award.
As trial commenced, the Commonwealth represented to the court that
it had worked out a resolution with Appellant. Id. at 3. The court then
inquired of Appellant whether he was represented by Ms. Gaussa. Appellant
informed the court that Ms. Gaussa “ended up taking my case pro bono, but
. . . she ended up leaving to get married and she’s out.” Id. Upon
confirming that Attorney Gaussa never entered an appearance of Appellant’s
behalf, the court asked Appellant whether he had negotiated an agreement
with the Commonwealth. Appellant acknowledged that they had discussed
the fines but told the court that, “the fines ain’t really the problem. It’s
mainly the $5,700 vet bill.” Id. The court told Appellant that was a civil
matter and that he was not going to order Appellant to pay the veterinary
bills. Id. Appellant questioned the effect of the district justice’s order to
pay the $5,700 bill.
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At that point, the court turned to Officer Hoffman and asked him if he
understood what Appellant was saying about restitution. The officer advised
the court that the owner of the dog that was attacked testified that he
incurred $5,700 in damages to his dog. Id. at 6. The district justice
imposed fines, costs, and the entire amount of the veterinary bill as
restitution. The trial court and the Commonwealth agreed that the
veterinary bills were a civil matter.
The trial court specifically asked Appellant whether he was challenging
the underlying charges:
The Court: All right, so Mr. Crawford, you’re not disputing the allegations that, what happened with the dog, you just don’t want to pay the vet bill basically? That’s your issue?
The Defendant: Basically, yes.
Id. at 8.
The record reveals that Officer Hoffman did not “testify” or offer
evidence regarding the charges. The officer was not sworn in as a witness
because there was no need for his testimony. Furthermore, his response to
the trial court was not “hearsay” as it was not elicited to establish
Appellant’s guilt or innocence. Since Appellant did not contest the charges,
the Commonwealth did not present a case against Appellant and no evidence
was adduced at trial to prove Appellant’s guilt. There were no witnesses to
confront as no evidence or testimony was presented to prove facts tending
to establish his guilt. See Crawford, supra, at 51 (the Confrontation
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Clause applies to witnesses who bear testimony for the purpose of
establishing some fact establishing the guilt of the accused). Thus,
Appellant’s Confrontation Clause rights were neither implicated nor violated.
The trial court granted Appellant’s request for relief from restitution, but
upheld the district justice’s finding of guilt. Id.
Since Appellant was not legally entitled to counsel, the denial of the
continuances that would have allowed counsel to attend the summary trial
did not implicate that right. To the extent that Appellant simply alleges that
the trial court erred in denying both Attorney Gaussa’s oral request for a
continuance and Appellant’s subsequent pro se request for a continuance,
we address it on that basis.
"The grant or denial of a motion for a continuance is within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of discretion." Commonwealth v. Boxley, 948 A.2d 742, 746 (Pa. 2008). "An abuse of discretion is not merely an error of judgment; rather discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record[.]" Id. Moreover, "[a] bald allegation of an insufficient amount of time to prepare will not provide a basis for reversal of the denial of a continuance motion." Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super. 2012). "An appellant must be able to show specifically in what manner he was unable to prepare for his defense or how he would have prepared differently had he been given more time. We will not reverse a denial of a motion for continuance in the absence of prejudice.” Id.
Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.Super. 2014)
(internal parentheticals omitted).
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Attorney Gaussa, appearing as counsel for New Owners, orally
requested a continuance of the summary trial at the June 7, 2016 motions
court hearing. Attorney Gaussa was not Appellant’s counsel, and had no
standing to seek a continuance. Appellant maintains, however, that because
the trial court initially intimated a willingness to change the trial date to
accommodate Attorney Gaussa’s schedule, it abused its discretion when it
later denied the request.
The trial court explained the reasons why it changed its mind
regarding Attorney Gaussa’s requested continuance:
[T]his court only entertained Attorney Gaussa’s oral motion for continuance during motions court on June 7, 2016 because this court was under the impression that she would represent Appellant. However, since Attorney Gaussa only represented the subsequent dog owners and not Appellant, then the subsequent dog owners lacked standing to request a continuance in this matter.
Trial Court Supplemental Opinion, 10/20/16, at 6 (unnecessary capitalization
omitted). Thus, the court likely would have granted the continuance if the
moving party had standing and if Attorney Gaussa was Appellant’s counsel of
record. We find no abuse of the trial court’s discretion in its denial of this
request for continuance.4
4 Arguably Appellant does not make the requisite showing of prejudice due to the denial. See Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.Super. 2014). He sought relief from the restitution that had been (Footnote Continued Next Page)
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Appellant maintains further that the denial of his pro se request for a
continuance constituted an abuse of discretion because it was based on a
local policy. In support of his position, Appellant cites our sister court’s
decision in Gillespie v. Department of Transportation, 886 A.2d 317
(Pa.Cmwlth. 2005), which while not binding, may be cited as persuasive
authority. See Little Mt. Cmty. Ass’n v. S. Columbia Corp, 92 A.3d
1191, 1198 n.14 (Pa.Super. 2014) (quoting In re Barnes Foundation, 74
A.3d 129, 134 n.4 (Pa.Super. 2013)). In Gillespie, the trial court blindly
adhered to a policy of only allowing continuances where both parties agreed.
The Commonwealth Court held that the trial court abused its discretion
because it did not exercise any discretion at all.
The Fayette County policy herein is inapposite. As the trial court
explained, there are two types of continuance motions, “routine” and
“priority.” See Trial Court Supplemental Opinion at 5. When both parties
agree to a continuance, a routine motion so stating is filed and ruled upon
without a hearing. Id. In the event one or more parties do not consent to
the continuance, a priority motion must be filed and presented to the court
for a ruling on the motion. Id. In this case, Appellant filed a routine motion
but without the Commonwealth’s consent. Id. Unlike the trial court in
_______________________ (Footnote Continued)
imposed by the magisterial district judge. The trial court granted him the relief he sought.
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Gillespie, the Fayette County Court of Common Pleas does not have a
“standing policy that all parties must agree to a continuance.” Gillespie,
supra at 319. Rather, when all parties do not consent, the trial court must
exercise its discretion and determine whether to grant a motion for
continuance. Appellant’s failure to follow the proper procedure deprived the
trial court of the opportunity to exercise its discretion. This claim fails.
For all of the foregoing reasons, no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/17/2017
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