Commonwealth v. Krut

POPOVICH, Judge:

This is a consolidated appeal from separate orders of court which dismissed the appeals filed by appellants, Keith and Kevin Krut, from their convictions before a district magistrate. For the reasons herein stated, the matter must be remanded for proceedings not inconsistent with this opinion.

Appellant, Keith Krut, was convicted of disorderly conduct,¹ a summary offense, and sentenced to pay a fine and costs of $126.00. Appellant, Kevin Krut, was convicted of multiple offenses and was ordered to pay fines and costs totalling $310.00.² Both of the appellants timely appealed their convictions to the Court of Common Pleas of Allegheny County. The trial court dismissed the appeals for the reason that the appellants had failed to appear in court on the scheduled trial date. The instant consolidated appeal then followed.³

According to appellants, defense counsel requested a continuance on January 5, 1981, the day before the hearing was scheduled. At that time, the trial court advised counsel of its policy to deny continuances in statutory appeals. Appellants also contend that an explanation was given to the trial court for their absence; that is, each appellant “was out of the country pursuant to some unavoidable business.” Brief for Appellants at 4. We need not reach the merits of appellants’ argument because notwithstanding the reason for appellants’ absence, the trial court should have determined the facts of the case and rendered a verdict.

The instant appeal is controlled by a recent decision of this Court, Commonwealth v. Kyle, 307 Pa.Super. 446, 453 A.2d 668 (1982). In Kyle, this Court remanded the matter for a trial de novo because the trial court improperly dismissed Kyle’s appeal from a summary conviction when the appellant had failed to appear at the scheduled trial date. Our Court said the following:

“The action of the lower court [in] 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], 446 A.2d 938 [939] (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, 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, must determine the facts and render a verdict. Since this was not done, we are constrained to remand for a new trial. 307 Pa.Superior 446, 453 A.2d 668. (Footnotes omitted) (Emphasis in Original).

Accordingly, because appellants have perfected their appeals to the Court of Common Pleas of Allegheny County, the cases have to be retried “as if the prior summary proceeding^] had not occurred,” that is, de novo. Id. at ftn. 3. (emphasis added); see also, Commonwealth v. Moore, 226 Pa.Super. 58, 312 A.2d 422, 426 (1973) (trial de novo means “that the defendant’s case will in fact be tried in Common Pleas 'anew the same as if it had not been heard before and as if no decision had been previously rendered.’ 2 Am.Jur.2d Admin.Law § 698 (1962)”) (Spaeth, J., Dissenting and Concurring Opinion).

Accordingly, the orders of the court are reversed, and we remand for proceedings not inconsistent with this opinion. This Court does not retain jurisdiction.

JOHNSON, J., files a dissenting opinion.

1 . 18 Pa.C.S.A. § 5503.

2 . The offenses were driving an unregistered vehicle (75 Pa.C.S.A. § 1301), fleeing or attempting to elude a police officer (75 Pa.C.S.A. § 3733(a)), operating a motorcycle without an inspection sticker (75 Pa.C.S.A. § 4703(a)), operating a motorcycle without wearing protective headgear or an eye-protective device (75 Pa.C.S.A. § 3525(a) and (b)), and driving on the left side of the roadway (75 Pa.C.S.A. § 3301(a)).

3 . The record shows that appellant, Kevin Krut, filed his direct appeal in the Commonwealth Court which then transferred the appeal to this Court since that appeal involved the same issues of fact and law as the appeal launched by appellant, Keith Krut. See Pa.R.A.P. 752(a).