Com. v. Courtley, C.

J-A01027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CHRISTOPHER COURTLEY,
Appellee No. 1218 WDA 2016
Appeal from the Order Entered July 20, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-SA-0001154-2016
BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 13, 2017
The Commonwealth of Pennsylvania appeals from the order entered on
July 20, 2016 which vacated an order dismissing Christopher Courtley’s
(“Courtley’s”) summary appeal and purported to find him not guilty of the
offense charged. We vacate and remand for further proceedings consistent
with this memorandum.
The factual background and procedural history of this case are as
follows. On March 5, 2016, Courtley parked illegally on Fifth Avenue in
downtown Pittsburgh. He received a parking citation for violating 75
Pa.C.S.A. § 3353(a)(1)(x). On June 7, 2016, a magisterial district judge
found Courtley guilty and imposed a fine of $50.00. Courtley appealed to
the Court of Common Pleas of Allegheny County and a trial de novo was
scheduled for July 13, 2016. Courtley failed to appear on that date and the
* Retired Senior Judge assigned to the Superior Court
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trial court dismissed the appeal and entered judgment against him. See
Pa.R.Crim.P. 462(D).
On July 20, 2016, Courtley appeared while the trial court was hearing
other summary appeals. Courtley briefly explained why he failed to appear
the previous week, stating that he overslept on his appointed court date
because of a late night work delivery assignment. Over the
Commonwealth’s objection, the trial court vacated the July 13, 2016 order
dismissing Courtley’s appeal and purported to find Courtley not guilty of the
parking violation. This timely appeal followed.1
The Commonwealth presents one issue for our review:
Whether the trial court erred in entering a “[not guilty]” verdict
in response to [Courtley’s] oral motion to reconsider the prior
dismissal of his summary appeal and entry of judgment on the
judgment of the issuing authority which occurred after [Courtley]
failed to appear for his trial de novo?
Commonwealth’s Brief at 4.
Preliminarily, we consider whether we have jurisdiction over this
appeal. See Commonwealth v. Demora, 149 A.3d 330, 331 (Pa. Super.
2016) (citation omitted) (“We may raise the issue of jurisdiction sua
sponte.”). We address this issue since the Commonwealth’s appeal in this
1
On August 25, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). On August 31, 2016, the Commonwealth filed its
concise statement. On September 16, 2016, the trial court issued its Rule
1925(a) opinion. The Commonwealth’s lone issue raised on appeal was
included in its concise statement.
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case challenges an order that, among other things, acquitted Courtley of a
summary traffic offense. In general, a factfinder’s verdict of not guilty is
deemed “absolutely final” and not subject to appellate review.
Commonwealth v. Martorano, 634 A.2d 1063, 1069 (Pa. 1993) (per
curiam) (citation omitted). As this Court has explained:
It has long been well-settled that the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution[, as
incorporated by the Fourteenth Amendment,] prevents the
prosecution from appealing a verdict of acquittal. The
prosecution may not appeal from a verdict of not guilty entered
by the trial court in a criminal prosecution and this is so whether
the prosecution be by indictment or by summary proceeding.
The fact-finder in a criminal case has been traditionally
permitted to enter an unassailable but unreasonable verdict of
not guilty. This rule is such a fundamental precept of double
jeopardy jurisprudence that it has been explicitly extended to
situations where an acquittal is based upon an egregiously
erroneous foundation. As such, a fact-finder’s verdict of not
guilty is accorded absolute finality. It is completely insulated
from appellate review.
Commonwealth v. Walczak, 655 A.2d 592, 595–496 (Pa. Super. 1995)
(internal quotation marks, alterations, and citations omitted). Therefore, if
jeopardy attached during the proceedings before the trial court, we lack
jurisdiction to hear this appeal. Cf. Martinez v. Illinois, 134 S. Ct. 2070,
2075-2076 (2014) (If jeopardy attaches, and the defendant is acquitted, the
prosecution may not appeal that determination). If, however, jeopardy did
not attach, we have jurisdiction over this appeal.
We consider two possibilities for why jeopardy did not attach. First, if
the trial court lacked subject matter jurisdiction to vacate its July 13 order,
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then the finding of not guilty was a legal nullity and jeopardy did not attach.
See Commonwealth v. Stark, 584 A.2d 289, 291 n.4 (Pa. 1990). In this
case, we conclude that the trial court had jurisdiction to vacate its July 13
order.
Pennsylvania Rule of Criminal Procedure 720(D) provides that, “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). Nonetheless, the comment to Rule 720 states that, “Although there
are no post-sentence motions in summary appeals following the trial de
novo pursuant to paragraph (D), nothing in this rule is intended to preclude
the trial judge from acting on a defendant’s petition for reconsideration.”
Pa.R.Crim.P. 720 cmt., citing 42 Pa.C.S.A. § 5505. In this case, the trial
court’s July 20 order was entered within 30 days of its July 13 order.
Accordingly, the trial court had jurisdiction under section 5505 to vacate its
July 13 order.
Having determined that the trial court had jurisdiction to enter its July
20 order, we consider whether jeopardy attached in the traditional sense.
“In a bench trial, jeopardy attaches when the trial court begins to hear the
evidence.” Commonwealth v. Martin, 97 A.3d 363, 365 (Pa. Super. 2014)
(ellipsis and citation omitted). In this case, the trial court did not begin to
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hear evidence. Specifically, Courtley was not administered an oath prior to
explaining the circumstances surrounding his absence from the July 13 trial
de novo and the parking ticket. See N.T., 7/20/16, at 2. Pennsylvania Rule
of Evidence 603 provides that, “Before testifying, a witness must give an
oath or affirmation to testify truthfully. It must be in a form designed to
impress that duty on the witness[’] conscience.” Pa.R.Evid. 603. “The lack
of an oath means that there was no testimony.” Tecce v. Hally, 106 A.3d
728, 731 (Pa. Super. 2014), appeal denied, 125 A.3d 778 (Pa. 2015).
Therefore, Courtley’s “‘testimony’ was a nullity.” Id. As the trial court did
not begin to hear any evidence, jeopardy did not attach and we have
jurisdiction over this appeal. See Commonwealth v. Wallace, 686 A.2d
1337, 1340 (Pa. Super. 1996) (finding that jeopardy did not attach because
the trial court did not receive any evidence).
We next turn to the merits of the Commonwealth’s lone issue on
appeal. The Commonwealth argues that the trial court erred by vacating its
July 13 order without finding that Courtley was absent from the July 13 trial
de novo with cause. As this Court has stated:
The Comment to Rule 462 explains that paragraph (D) makes it
clear that the trial judge may dismiss a summary case appeal
when the judge determines that the defendant is absent without
cause from the trial de novo. Therefore, before a summary
appeal may be dismissed for failure to appear, the trial court
must ascertain whether the absentee defendant had adequate
cause for his absence. In the event that good cause is
established, the defendant is entitled to a new summary trial.
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Commonwealth v. Dixon, 66 A.3d 794, 796 (Pa. Super. 2013) (internal
alteration, quotation mark, and citations omitted).
In its Rule 1925(a) opinion, the trial court contends that it found that
Courtley “showed cause for not appearing at the prior hearing.” Trial Court
Opinion, 9/16/16, at 1. The transcript, however, belies that assertion. After
Courtley explained his reasons for missing the July 13 trial de novo, the trial
court did not make a determination that Courtley had shown cause for
missing the trial de novo. See N.T., 7/20/16, at 2. As no such
determination was made, we conclude that the trial court erred by vacating
its July 13 order. We remand for a hearing to determine if Courtley had
cause for missing the July 13 trial de novo.2 If the trial court determines
that Courtley showed cause, it should vacate its July 13 order and schedule
a new trial de novo for some future date. See Commonwealth v.
Marizzaldi, 814 A.2d 249, 252 (Pa. Super. 2002).
Although we conclude that the trial court erred by vacating its July 13
order, we admonish the Commonwealth for its conduct in this appeal. In its
2
We note that oversleeping is not sufficient cause to warrant vacatur of the
July 13 order. See Dixon, 66 A.3d at 798 (cause requires a showing “that
the circumstances causing [the defendant’s] absence were beyond his
control”). The Commonwealth, however, only requests a remand for an
evidentiary hearing in its prayer for relief. See Commonwealth’s Brief at
20. As such, we decline to grant the Commonwealth more relief than it
seeks by reversing the July 20 order.
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brief, the Commonwealth twice shouts3 that, “NO TESTIMONY WAS
TAKEN ON ANY ISSUE!!” Commonwealth’s Brief at 8 (emphasis in
original); id. at 15 (same). Moreover, in its brief, and at oral argument, the
Commonwealth attacked the trial court’s integrity and implied that the trial
court acted corruptly in this case. See id. (“The Allegheny County Court of
Common Pleas, Summary Appeals Branch has a history of corruption.”).
Commonwealth’s Brief at 15.4 The Commonwealth, however, failed to
demonstrate “a reasonable basis for believing the statements were true.”
Office of Disciplinary Counsel v. Surrick, 749 A.2d 441, 444 (Pa. 2000).
We expressly hold that there is no evidence of corruption by the trial court
and are confident the trial court can properly dispose of this case on
remand.
Order vacated. Case remanded. Jurisdiction relinquished.
3
“There’s one convention that is incontestable: Typing in all caps is Internet
code for shouting, and it is rude.” Alice Robb, How Capital Letters Became
Interent Code for Yelling, New Republic, Apr. 17, 2014, goo.gl/HzoRqW (last
accessed Feb. 18, 2017).
4
The Commonwealth later equivocates on this implication. See
Commonwealth’s Brief at 17. After the equivocation, however, the
Commonwealth once again strongly implies that the trial court acted
corruptly. See id. at 18-19.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2017
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