Com. v. Burnworth, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MELISSA M. BURNWORTH
Appellant No. 962 WDA 2014
Appeal from the Judgment of Sentence May 13, 2014
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-SA-0000009-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 11, 2015
Appellant, Melissa M. Burnworth, appeals from the judgment of
sentence entered May 13, 2014, in the Court of Common Pleas of Greene
County. After careful review, we vacate the judgment of sentence and
remand for further proceedings.
Burnworth was charged with summary harassment, 18 Pa.C.S.A.
2709(a)(1), following an altercation with her estranged husband during an
exchange of custody of the couple’s minor child in a grocery store parking
lot. Following a hearing at the magisterial district court, Burnworth was
found guilty. Thereafter, Burnworth appealed and a de novo hearing was
conducted before the Greene County Court of Common Pleas. The trial court
convicted Burnworth and fined her $200.00, plus costs. This appeal
followed.
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On appeal, Burnworth raises the following issue for our review:
I. After it was learned [sic] that defense witnesses did not
separate themselves from the courtroom, did the trial
court abuse its discretion when it refused to allow
sequestered witnesses to testify, without any inquiry as to
the knowledge of the witnesses of the sequestration order,
where there was no participation by the defendant or her
counsel in the failure to separate, where the failure to
separate was inadvertent, and where there was no
showing of prejudice to the Commonwealth thereby
depriving defendant of right to fair trial and due process
under the Pennsylvania and the United States
[Constitutions]?
II. Was the Notice of Appeal timely filed and/or should the
Notice of Appeal be deemed timely filed under the
circumstances?
Appellant’s Brief at 8.
Initially, we must address the timeliness of Burnworth’s appeal, as this
implicates our jurisdiction. See Commonwealth v. Burks, 102 A.3d 497,
500 (Pa. Super. 2014). A notice of appeal must be filed within 30 days after
the entry of the order from which the appeal is taken. See Pa.R.A.P. 903.
“In a criminal case in which no post-sentence motion[1] has been filed, the
date of imposition of sentence in open court shall be deemed to be the date
of entry of the judgment of sentence.” Pa.R.A.P. 108(d)(2) (footnote
added). “Time limitations for taking appeals are strictly construed and
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1
“There shall be no post-sentence motion in summary case appeals
following a trial de novo in the court of common pleas. The imposition of
sentence immediately following a determination of guilt at the conclusion of
the trial de novo shall constitute a final order for purposes of appeal.”
Pa.R.Crim.P. 720(D).
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cannot be extended as a matter of grace.” Burks, 102 A.2d at 500 (citation
omitted). Nevertheless, this general rule does not affect the power of the
courts to grant relief in the case of fraud or breakdown in the processes of
the court. See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa.
Super. 2007).
Instantly, the trial court announced Burnworth’s judgment of sentence
in open court following the conclusion of the de novo hearing conducted.
Thus, Burnworth had 30 days, or until June 11, 2014, in which to file her
notice of appeal. She did not do so until 31 days later, on June 12, 2014, a
Thursday. Ordinarily, this would render Burnworth’s appeal untimely. Here,
however, the record reveals that the trial court did not advise Burnworth of
her appellate rights, or the time within which she must exercise those rights,
as mandated by Pa.R.Crim.P. 704(C)(3)(a).2
This Court has previously held that the failure to advise an appellant of
his or her appellate rights at the time of sentencing constitutes a breakdown
of the processes of the court that excuses an untimely filed notice of appeal.
See, e.g., Commonwealth v. Hurst, 532 A.2d 865, 867-868 (Pa. Super.
1987) (declining to quash untimely appeal where trial court failed to advise
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2
At the time of sentencing, “[t]he judge shall determine on the record that
the defendant has been advised ...”, inter alia, “of the right to file a post-
sentence motion and to appeal, ... [and] of the time within which the
defendant must exercise those rights.” Pa.R.Crim.P. 704(C)(3)(a)
(emphasis added).
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appellant of appellate rights). Finding that a court breakdown occurred, we
will reach the merits of the instant appeal.
Burnworth argues that the trial court improperly excluded the
testimony of her mother, Donna Prevost, whom she claims was an
eyewitness to the alleged harassment. Prior to trial, the parties agreed to a
sequestration of witnesses. See N.T., Summary Appeal Trial, 5/12/14 at 3-
4. At the conclusion of the Commonwealth’s case, Burnworth attempted to
call Donna Prevost, whom—unbeknownst to trial counsel— had been sitting
in the courtroom throughout the trial. See id. at 28-29. Upon objection,
the trial court precluded the witness’s testimony. See id. at 29.
Regarding the preclusion of testimony based upon a violation of a
sequestration order, we note:
The selection of a remedy for the violation of a sequestration
order is within the discretion of the trial court. Commonwealth
v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). However, to deny
a criminal defendant the opportunity to present relevant and
competent evidence in his defense would constitute a violation of
his fundamental constitutional rights to compulsory process for
obtaining witnesses in his favor and to a fair trial.
Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161, 163
(1981) (citing U.S. Const. amend. VI and XIV; Pa. Const. art. 1,
§ 9; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18
L.Ed.2d 1019 (1967)). More than a century ago, the United
States Supreme Court held that a defense witness’ violation of a
sequestration order alone did not warrant exclusion of his
testimony. Holder v. United States, 150 U.S. 91, 92, 14 S.Ct.
10, 37 L.Ed. 1010 (1893). Absent a showing of fault on the part
of the party or counsel who called a witness, an exclusion of a
criminal defendant’s witness’ testimony solely because the
witness violated a sequestration order is an abuse of discretion.
Scott, 436 A.2d at 163.
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Commonwealth v. Robertson, 874 A.2d 1200, 1209-1210 (Pa. Super.
2005).
If the trial court concludes that the Commonwealth has been
substantially prejudiced by the defense witness’ violation, a
mistrial may be declared. If the violation is less serious, the trial
court may conclude that a cautionary instruction to the jury
would be sufficient to prevent prejudice to the Commonwealth.
Only where a defense witness’ testimony is clearly irrelevant to a
defendant’s case, and is therefore excludable on the independent
ground of irrelevancy, should a trial judge completely exclude
that witness’ testimony for an inadvertent violation of a
sequestration order.
Scott, 436 A.2d at 163 (internal citations omitted).
At trial, defense counsel professed that the failure to sequester the
witness was inadvertent. See N.T., Summary Appeal Trial, 5/12/14 at 29
(“I had no idea she was there either. … I moved to sequester the witnesses,
and I assumed that the witnesses left the room.”). The Commonwealth did
not dispute defense counsel’s assertions, and the trial court seemingly
credited the testimony at the time. See id. at 29-30 (“I’m certainly not
accusing you of anything, but I’m not going to let her testify.”). Further,
there is no showing on the record that the Commonwealth was prejudice by
defense counsel’s inadvertence. As it appears from the present state of the
record that the trial court’s preclusion of the witness’s testimony was based
solely on the inadvertent violation of the sequestration order,3 we are
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3
While we do not doubt that counsel’s violation of the sequestration order
was inadvertent, counsel should, in the future, ensure that the witnesses
have complied with the trial court’s sequestration directive.
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constrained to find that decision to have been an abuse of discretion. 4 See
Robertson (“Absent a showing of fault on the part of the party or counsel
who called a witness, an exclusion of a criminal defendant's witness’
testimony solely because the witness violated a sequestration order is an
abuse of discretion.”).
Accordingly, we vacate the judgment of sentence and remand for a
new summary appeal trial.
Judgment of sentence vacated. Case remanded for new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/15
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4
As there is no indication in the record as to the content of the witness’s
testimony, we can make no determination as to the relevance of the
testimony.
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