Com. v. Perkins, T.

• Court: Superior Court of Pennsylvania
• Decided: June 8, 2026
• Docket: 1727 EDA 2024
• Status: Unpublished
• Author: Ford Elliott

Opinion

J-S05040-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRANCE PERKINS : : Appellant : No. 1727 EDA 2024

Appeal from the Judgment of Sentence Entered May 29, 2024 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005030-2023

BEFORE: PANELLA, P.J.E., KING, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 8, 2026

Appellant, Terrance Perkins, appeals from the judgment of sentence

entered by the Delaware County Court of Common Pleas following his bench

convictions for false identification to law enforcement authorities and two

summary offenses, driving without a license and driving an unregistered

vehicle.1 The sole claim on appeal is that the trial court erroneously proceeded

to try Appellant in absentia when he failed to appear in court on the day of

trial. We affirm because this claim was not preserved for review.

On August 18, 2023, Officer Steven Hurwitz of the Springfield Township

police department was in uniform in a marked patrol car on Baltimore Pike.

He had in his possession a “license plate reader.” Around 9:23 p.m., the

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 4914(a) and 75 Pa.C.S. §§ 1501(a) and 1301(a), respectively. J-S05040-26

license plate reader indicated a “hit” for an expired registration on a passing

Nissan car. The officer stopped the Nissan near the intersection of Baltimore

Pike and West Avenue. There were two occupants of the Nissan. Appellant was

in the driver’s seat. See N.T. Trial, 5/23/24, 5-6.

Upon inquiry by the officer, Appellant stated that his name was “Mark

Washington,” and provided a date of birth in 1965, then claiming to be fifty-

nine-years old. The birth date did not match the age Appellant stated, as the

officer told him. Appellant insisted he was correct about his age and his name.

Appellant did not have a driver’s license in his immediate possession.

Eventually, the officer arrested Appellant, and brought him to the Springfield

Township police station, where he was “live scanned,” that is, fingerprinted.

By his fingerprints, a police database confirmed Appellant’s “true identity” as

Terrance Perkins. The officer also confirmed that Appellant did not have a valid

driver’s license. See N.T. Trial, 5/23/24, 6-9.

Appellant was represented by the Office of the Public Defender. Trial

was continued at least three times. On February 15, 2024, the matter was

continued by the court for trial or status on March 20, 2024. See Criminal

Notice – Application for Continuance, 2/15/24. On March 20, 2024, the court

continued trial to May 23, 2024, at 9:30 a.m. See Criminal Notice –

Application for Continuance, 3/20/24. Of significance to this appeal, the third

continuance specifically noted that the next court date would be for a bench

trial, and was signed by defendant, defense counsel and the assistant district

attorney to acknowledge their receipt of the notice. See id.

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On May 23, 2024, the court held trial. At the outset, the court stated for

the record:

THE COURT: All right. We’re here for a bench trial which was indicated to this Court and on the record that Mr. Perkins wanted to proceed with a bench trial. This Court also notes that Mr. Perkins is not here. He’s failed to appear today. So one of the Rules of Criminal Procedure there is notice, he has notice to be here, was advised to be here. He chooses not to be here. So therefore this Court is going to proceed under the Rules of Criminal Procedure for a trial in absentia. And the Court will note for the record since he’s not here[,] he’s waived any issues as far as presenting any issues regarding the bench trial. Although this Court was led to believe it was going to be a bench trial anyway. So we’re ready to proceed.

[Defense Counsel]: And that’s correct, Your Honor. This -- so the record is clear back on March 20 we requested a bench trial date.

THE COURT: Very good. All right.

N.T. Trial, 5/23/24, 3-4.

The Commonwealth presented a single witness, Officer Hurwitz, and a

photograph of Appellant which the officer identified. See N.T. Trial, 5/23/24,

4-9. Defense counsel cross-examined the officer to confirm that when he

determined Appellant’s identity, he also obtained a date of birth for him. See

id., 10. After explaining that a detective was the author of the affidavit for the

arrest warrant, the officer explained that being live scanned is just being

fingerprinted and that the “fingerprint returns the real identity.” See id., 10-

11. He also confirmed that Appellant did not make a statement other than to

tell the officer “it was his name.” Id., 11. The defense presented no evidence.

See id., 12.

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Finding the testimony of Officer Hurwitz “credible,” the court convicted

Appellant of all three counts, a misdemeanor of the third degree and two

summary violations. N.T. Trial, 5/23/24, 12; see also Verdict, 5/23/24. The

court also issued a bench warrant for Appellant’s failure to appear at trial, and

ordered that Appellant be brought to sentencing. See id.; see also Bench

Warrant – Failure to Appear, 5/23/24.

Appellant was arrested some time on the day of trial, May 23, 2024.

See N.T. Sentencing, 5/29/24, 3. According to defense counsel, Appellant was

arrested on his way to court. See id. He was held in custody from the time of

his arrest until he was brought to court for sentencing, from May 23 to May

29, 2024. See id., 3, 5. On the conviction for giving a false identification to a

law enforcement officer, the court imposed a term of imprisonment of time

served to twelve months and ordered immediate parole. See id., 5; Certificate

of Imposition of Sentence. For the summary violations, the court imposed a

fine of $200 for driving without a license and of $75 for driving an unregistered

vehicle. See id.

During the sentencing proceeding Appellant spoke directly to the court.

When the court told him that he should have arrived on time or called to say

he would be late on the day of trial, Appellant asserted that he had “texted,”

to which the court stated, “We heard there was no contact.” N.T. Sentencing,

5/29/24, 4. Appellant also said that he “didn’t have” his license but had

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subsequently obtained his license.2 See id., 5. Appellant said that he had his

license with him when he arrived at court the day of trial, but that it was now

with the rest of his personal property at the jail. See id. The court replied,

“Well, that wasn’t presented during trial. You should have been here to present

it. The officer said he checked the data bank and you didn’t have a license.”

Id. When Appellant asked if he could give the license to the court, the judge

said, “[T]oo late now.” Id. The court concluded the proceeding by informing

Appellant of the deadlines for filing a post-sentence motion and an appeal.

See id., 5-6. The court entered an order rescinding the bench warrant. See

Order, 5/28/25.

Appellant did not file a post-sentence motion. On June 27, 2024,

Appellant filed a timely notice of appeal. On July 18, 2024, the court ordered

Appellant to file a concise statement of errors complained of on appeal. See

Order, 7/18/24; Pa.R.A.P. 1925. After an extension of time was granted,

Appellant complied. See Appellant’s Statement of Errors Complained of on

Appeal, 8/29/24.

Appellant raises a single issue for our review:

Whether the trial court erred when it proceeded with a bench trial in Appellant’s absence where the Commonwealth failed to prove by a preponderance of the evidence that Appellant voluntarily absented himself from trial thereby knowingly and intentionally waiving his right to a jury trial. ____________________________________________

2 It is not clear whether Appellant was asserting that he had a valid driver’s

license on August 18, 2023, but not on him when he was stopped by the officer, or that he had since “got my license and everything.” N.T. Sentencing, 5/29/24, 5.

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Appellant’s Brief, 4.

“A defendant has an absolute right to be present at his trial. It is a right,

however, which may be waived. It may be waived expressly, or waiver may

be implied by a defendant’s actions.” Commonwealth v. Sullens, 619 A.2d

1349, 1351 (Pa. 1992) (Flaherty, J., plurality opinion) (citations omitted); see

also Pa.R.Crim.P. 602(A) (“The defendant’s absence without cause at the time

scheduled for the start of trial or during trial shall not preclude proceeding

with the trial, including the return of the verdict and the imposition of

sentence”). “A defendant’s presence may be deemed waived by the defendant

intentionally failing to appear at any stage of the trial after proper notice.”

Pa.R.Crim.P. 602, comment. “The burden of proving that the defendant’s

absence is without cause is upon the Commonwealth by a preponderance of

the evidence.” Id.; see also Commonwealth v. Scarborough, 421 A.2d

147, 153 (Pa. 1980) (when a constitutional right is waived, the

Commonwealth must show by a preponderance of the evidence that the

waiver was voluntary, knowing and intelligent). We review a decision to

conduct a trial in absentia for an abuse of discretion. Commonwealth v.

DeCosta, 197 A.3d 813, 816 (Pa. Super. 2018); see also Commonwealth

v. Bond, 693 A.2d 220, 223 (Pa. Super. 1997) (“we find that the trial court

did not abuse its discretion when it […] conducted [appellant’s] trial and

sentenced him in absentia”).

Appellant argues that he “did not voluntarily fail to appear for trial.”

Appellant’s Brief, 11. He contends, citing cases, that in considering whether

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to proceed when the defendant is absent “the trial court [should] consider how

soon the trial could take place with the defendant, the difficulty of

rescheduling, and the burden to the Commonwealth, although this list is not

exhaustive.” Id., 12. He also correctly asserts that there is no jury waiver

colloquy in the certified record, but concedes that “defense counsel confirmed

that on March 20, 2024, a bench trial was requested.” Id., 13. He nonetheless

contends that on “this record, there is not a knowing, intelligent and voluntary

waiver of the right to a jury trial.” Id.

He further argues that the “record is bereft of any evidence that

[Appellant] voluntarily absented himself from trial.” Appellant’s Brief, 13. “The

Commonwealth presented no evidence to prove that [Appellant] failed to

appear without due cause.” Id., 14. He notes that the Commonwealth did not

present evidence that it had checked to determine if Appellant was in custody

or a local hospital, or in any way had “voluntarily absented himself from trial.”

Id., 14-15. Moreover, he contends that his statement at sentencing that he

was on his way to court when he was arrested and had texted the court,

outweighs the court’s response that “we heard there was no contact” because

the court’s statement was hearsay. Id., 15.3 ____________________________________________

3 Appellant also argues that the trial court’s assertion in its written opinion that “this Court was informed that [Appellant] was not picked up prior to the listed trial time, but rather, was actually picked up on this Court’s bench warrant, which was issued AFTER completion of the bench trial,” Trial Court Opinion, 6/30/25, 3, should be ignored because it is outside the record. See Appellant’s Brief, 14 (emphasis in original). We find, however, that there is (Footnote Continued Next Page)

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Not addressed by Appellant, however, is counsel’s failure to object to a

trial in absentia, or to contest the trial court’s recitation of reasons to conclude

that Appellant was on notice of the trial date and failed to appear as the basis

for proceeding to a trial in absentia. See N.T. Trial, 5/23/24, 3-4. “One must

object to errors, improprieties or irregularities at the earliest possible stage of

the criminal ... adjudicatory process to afford the jurist hearing the case the

first occasion to remedy the wrong and possibly avoid an unnecessary appeal

to complain of the matter.” Commonwealth v. Strunk, 953 A.2d 577, 580

(Pa. Super. 2008); see also Commonwealth v. Rosser, 135 A.3d 1077,

1086 (Pa. Super. 2016).

Here, the trial court recited facts concerning Appellant’s due notice of

the trial date, for which there is support in the record in the form of Appellant’s

signature on the form continuing the matter for trial on May 23, 2024, and its

conclusion that it would proceed to trial in absentia. See N.T. Trial, 5/23/24,

3. Not only did defense counsel fail to object, he stated his agreement to the

evidence in the record that supports the conclusion that Appellant was arrested on the basis of the bench warrant, which was issued at the conclusion of the trial and thereby supports that Appellant was not prevented from arriving at court in a timely fashion by his arrest. The court issued the bench warrant at the conclusion of the trial, not before. See N.T. Trial, 5/23/24, 12; Bench Warrant – Failure to Appear, 5/23/24. At sentencing, Appellant confirmed to the court, which wanted to grant immediate parole, that there was nothing other than the bench warrant for which he was being held in custody. See N.T. Sentencing, 5/29/24, 5. Together, these facts establish that Appellant was arrested on the bench warrant after trial had been completed. Thus, defense counsel’s assertion that he had been “picked up” on his way to court on May 23, 2024, id., 3-4, necessarily admits that the arrest occurred the day of trial, but after trial had been completed.

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court’s recitation. See id. (“And that’s correct, Your Honor”); see also

Sullens, 619 A.2d at 1352 (holding that it was proper for trial to commence

in absentia when the defendant failed to appear on the day his trial was

scheduled to begin).4 Counsel did not contend that Appellant’s absence might

be involuntary or that Appellant did not have notice of trial, and he did not

suggest that the Commonwealth needed to prove that Appellant’s absence

was without cause. More importantly, he did not assert, at trial or at

sentencing, that the court’s decision to proceed with a trial in absentia was

improper. At sentencing, Appellant himself made assertions that contradicted

some of the court’s findings from six days earlier, but he did not request

reconsideration of the court’s prior ruling, and neither did counsel. See N.T.

Sentencing, 5/29/24, 3-4. As no post-sentence motion was filed, we need not

consider whether the objection could have been preserved at that time, or,

for that matter, whether trial counsel’s ineffective assistance could have been

4 This Court has held that where, as here, a defendant has due notice of the

trial date and willfully fails to appear, that is sufficient by itself to support the exercise of the trial court’s discretion to proceed to a trial in absentia. See Commonwealth v. Johnson, 734 A.2d 864, 866–667 (Pa. Super. 1999); see also Commonwealth v. Bethune, 2023 WL 8648954, *5 (Pa. Super., filed Dec. 14, 2023) (non-precedential decision cited for persuasive value) (“not disputed that [Bethune] had personal notice of the trial date. The Sullens case indicates that this is itself sufficient”); Commonwealth v. Nelson, 2024 WL 5256288, *5 (Pa. Super., filed Dec. 31, 2024) (non- precedential decision cited for persuasive value) (finding an abuse of discretion in proceeding to a trial in absentia where, unlike here, “the records do not clearly show [that Nelson] had notice of his jury selection […], nor his jury trial).

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litigated at that time.5 The single issue raised in this appeal was not contested

before the trial court.

It is well-established that “issues not raised in the trial court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “Even

issues of constitutional dimension cannot be raised for the first time on

appeal.” Strunk, 953 A.2d at 579. Indeed, Appellant has not fulfilled any of

his briefing obligations to demonstrate where in the record and how his

appellate issue had been preserved for review. See Pa.R.A.P. 2117(c) (where

a waivable claim is presented on appeal, the statement of the case in the

appellant’s brief must state where in the record and how the claim was

preserved for review); Pa.R.A.P. 2119(e) (where waivable claim is presented

on appeal, the argument section of the appellant’s brief “must set forth, in

immediate connection therewith or in a footnote thereto, either a specific

cross-reference to the page or pages of the statement of the case which set

forth the information relating thereto as required by Pa.R.A.P. 2117(c), or

substantially the same information). “[F]or any claim that was required to be

preserved, this Court cannot review a legal theory in support of that claim ____________________________________________

5 Even if counsel’s ineffective assistance had been raised in a post-sentence

motion, for us to review it now we would need to determine whether it had been reviewed in accordance with Commonwealth v. Holmes, 79 A.3d 562, 578 (Pa. 2013) (permitting, in narrow circumstances, unitary review on appeal which would include claims of ineffective assistance of counsel where the appellant also expressly waives post-conviction collateral review). See Commonwealth v. Watson, 310 A.3d 307, 310-313 (Pa. Super. 2024) (reviewing whether allegations of ineffective assistance had been raised in accordance with Holmes on direct appeal and concluding they had not been and therefore had to be deferred to post-conviction review).

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unless that particular legal theory was presented to the trial court.”

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008); see also

Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006).

In addition, the failure to object to the lack of a colloquy for the waiver

of a constitutional trial right, results in waiver. See Commonwealth v.

Mumford, 353 A.3d 247, 260–261 (Pa. Super. 2026) (where the defense

failed to object to lack of colloquy to establish a voluntary and knowing waiver

of the right to testify, then issue not preserved for appellate review);

Commonwealth v. Gumpert, 512 A.2d 699, 703 (Pa. Super. 1986)

(concluding that challenge to the trial court’s failure to conduct a jury waiver

colloquy was not preserved for appellate review, because the appellant did not

raise the issue before the trial court). Although a jury trial waiver colloquy

“shall appear on the record,” see Pa.R.Crim.P. 620, the lack of doing so, “does

not prove, in an absolute sense, that a defendant failed to understand the

right he waived by proceeding non-jury.” Commonwealth v. Mallory, 941

A.2d 686, 697 (Pa. 2008). “A waiver colloquy is a procedural device; it is not

a constitutional end or a constitutional ‘right.’” Id. Therefore, an objection

must be raised before the trial court to preserve for appeal a claim based on

the lack of an on-the-record colloquy, which objection was not raised in the

trial court here.6

6 See Commonwealth v. Zamichieli, 2023 WL 4104044, *8 (Pa. Super., filed June 21, 2023) (non-precedential decision cited for persuasive value) (Footnote Continued Next Page)

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We therefore conclude that Appellant’s sole claim on appeal was not

contested or preserved before the trial court. Trial counsel acceded to the trial

court’s determination to proceed to a trial in absentia, and stated agreement

with the factual determinations in support of that decision. Appellant cannot

raise objections to the trial court’s determination for the first time on appeal. 7

By not filing a post-sentence motion, Appellant also forewent any allegation

of ineffective assistance of counsel. Accordingly, we affirm the judgment of

sentence, albeit on grounds different than the trial court.

Judgment of sentence affirmed.

(defendant waived claim that trial court erred and violated the defendant’s right to self-representation by not holding a hearing on his motion to waive counsel and proceed pro se, prior to him failing to appear for trial and being tried in absentia where trial counsel, in defendant’s absence, failed to raise an objection to the trial court’s decision to proceed with the trial in absentia without first ruling on the motion to proceed pro se; citing Strunk).

7 “There is no question that a trial court has both the authority, as well as the

need, to run efficiently.” Commonwealth v. Pantano, 836 A.2d 948, 950– 51 (Pa. Super. 2003). However, we are concerned that there is no record evidence the trial court even considered delaying the start of trial until later that same day. The trial was short, with only one police officer witness (and possibly testimony from Appellant if he had been present). Nevertheless, we cannot review that aspect of the court’s decision since no one requested a short delay to the start of trial, and the record does not indicate what time of day the decision was made or how many other matters remained on the court’s docket that day.

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Date: 6/8/2026

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