Commonwealth v. Kyle

MONTEMURO, Judge:

Appellant, in this pro se appeal, asks us to reverse the order of the court below because he earns Six Hundred Fifty Dollars ($650) a week, and therefore requiring him to spend his valuable time in court violates his due process rights under the Fourteenth Amendment of the United States Constitution. That having been said, one would expect the next sentence to read: “[W]e find no merit in appellant’s claim and therefore affirm the order of the lower court.” Unfortunately, and somewhat sadly, we are compelled to reverse the lower court because of procedural irregularities upon which this court has spoken many, many times.

Appellant was found guilty by a District Justice for failing to stop at a stop sign.¹ He took an appeal de novo to Common Pleas Court. He arrived at court at 9:00 A.M., on October 3, 1980, the date of the hearing. After waiting for one and a half hours, he was informed by the assistant district attorney that his case would not commence until 1:30 P.M. He left the courtroom and subsequently that day filed a Motion to Dismiss or in the alternative for a Continuance. In his Motion to Dismiss, he argued that the charges should be dismissed because requiring him to wait in court at such a great personal expense effectively abridged various constitutional guarantees. The lower court judge sidestepped the issue and granted a Continuance until November 21, 1980. Appellant failed to appear at that hearing.

Appellant now repeats the argument in his Motion to Dismiss on appeal. However, we cannot reach the merits. The transcript of the November 21, 1980, proceedings reads as follows:

MR. LACKS: The first matter we have is the Commonwealth v. Alastair Kyle, Miscellaneous 111 of 1980. The defendant failed to appear for the Summary Hearing.

We would ask that the appeal be dismissed.

THE COURT: Dismiss it.

The action of the lower court dismissing the appeal was improper. “This court has repeatedly held that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either ‘guilty’ or ‘not guilty.’ ” Commonwealth v. Gula, 300 Pa.Super. 445, 446 A.2d 938 (1982), citing Commonwealth v. Carter, 230 Pa.Super. 401, 326 A.2d 530 (1974); see also Commonwealth v. Gamarino, 299 Pa.Super. 144, 445 A.2d 189 (1982).

Normally, this defect alone would compel a remand for the entry of a proper verdict followed by appropriate post-trial motions in accordance with Pa.R.Crim.P. 1123. Commonwealth v. Gula, supra; Commonwealth v. Koch, 288 Pa.Super. 290, 293, 431 A.2d 1052, 1053 (1981). However, in the present case there is an additional ERROR. The trial judge compounded the problem by “dismissing” the de novo appeal without taking any testimony concerning the facts of the case.

The pertinent section of Pa.R.Crim.P. 1117 reads as follows:

a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict. (Emphasis added).

In the instant case, not only was there an improper verdict, but there was no determination of the facts of the offense. The trial court, even if empowered to proceed without a defendant,² must determine the facts and render a verdict.³ Since this was not done, we are constrained to remand for a new trial.

Accordingly, Order is reversed and we remand for proceedings consistent with this opinion. This court does not retain jurisdiction.

CAVANAUGH, J., files dissenting opinion.

1 . 75 Pa.C.S.A. § 3323.

2 . Because the trial court dismissed the case without receiving testimony supporting a verdict, the reasons for appellant’s absence are irrelevant.

3 . The dissent relies on the case of Commonwealth v. Smith, 237 Pa.Super. 506, 352 A.2d 90 (1975), which interpreted Pa.R.Crim.P. 1117 to mean that a trial de novo is not required in an appeal to the Court of Common Pleas from a summary conviction where the defendant is absent. In other words, an appeal from a summary conviction could be dismissed without violating Rule 1117 if a defendant fails to appear for the scheduled trial de novo. This interpretation obviates the necessity of requiring the Commonwealth to proceed with its case and establish facts on the record upon which the common pleas judge would render a verdict of guilty or not guilty. Admittedly, the facts in Smith, supra, and in the instant case are the same. However, we believe that the interpretation placed upon Rule 1117 in the Smith case, as applied to summary offenses, has been effectively overruled by this court’s en banc decision in Commonwealth v. Koch, supra. In Koch, it was held that the rules of criminal procedure apply with the same force and effect to the trial de novo:

Rule 67 which establishes the procedure for perfecting an “appeal” to the Court of Common Pleas for a trial de novo is, in reality, a retrial of the case as if the prior summary proceeding had not occurred ...

Summary violations are by definition, minor offenses, punishable most often, only by a fine. They justifiably should be summarily handled and the purpose and goal of the rules governing such proceedings is prompt adjudication before the issuing authority. Commonwealth v. Wadzinski, 239 Pa.Super. 76, 361 A.2d 790 (1976). However, once an appeal is taken to the Court of Common Pleas, this goal is clearly abrogated, and thereafter, all general provisions of the criminal rules become applicable to the trial de novo unless specifically made inapplicable. Id., 288 Pa.Superior Ct. at 294, 431 A.2d at 1054. (Emphasis added—footnotes omitted)

It is clear then that Rule 1117 cannot be given one interpretation for summary offenses and another for felonies or misdemeanors. It must be given a consistent interpretation. It could not be seriously contended that an absent defendant, charged with a felony or a misdemeanor, could be convicted without the Commonwealth first presenting testimony and establishing its case on the record. Obviously, due process requires a hearing. We believe that under Koch this requirement must apply also to the trial de novo for a summary offense. Rule 1117 means exactly what it says and no more:

The defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict.