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COMMONWEALTH v. SMITH (12/01/75)

decided: December 1, 1975.

COMMONWEALTH
v.
SMITH, APPELLANT



Appeal from order of Court of Common Pleas of Lancaster County, No. 1351 of 1974, in case of Commonwealth of Pennsylvania v. Mary Jane Smith.

COUNSEL

Allen H. Smith, for appellant.

Ronald L. Buckwalter, First Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Hoffman, J., concurs in the result.

Author: Van Der Voort

[ 237 Pa. Super. Page 507]

This is an appeal from an Order of the Court of Common Pleas of Lancaster County, dismissing an appeal from a summary conviction because the appellant refused to appear.

[ 237 Pa. Super. Page 508]

The appellant, the wife of her attorney, was convicted of speeding under The Vehicle Code, was fined ten ($10.00) dollars and ordered to pay costs also in the amount of ten ($10.00) dollars. She appealed the case to the Court of Common Pleas of Lancaster County. She asked that the case be continued once which was granted, then she failed to appear at the date set for the postponed hearing. No further application for continuance was made. Her husband did appear, he informed the Court of the unavailability of the Defendant and he made a motion to dismiss the charge. The Court refused to entertain the motion for dismissal by the appellant, refused to hear the case in the absence of the appellant and dismissed the appeal at the cost of the appellant.

The appellant claims that under the Pennsylvania Rules of Criminal Procedure, Rule No. 64, the Judge should have required the Commonwealth to present its case notwithstanding the failure of the Defendant (appellant) to appear. Rule No. 64 provides in part:

"(1) Whenever a defendant fails to appear for trial in a summary case he shall be deemed to have consented to trial in his absence."

This Rule applies to the proceedings before an Issuing Authority and has no application to the hearing de novo when a summary case has been appealed to the Court of Common Pleas. The Pa. R. Crim. P. Rule applicable to trials in the Court of Common Pleas dealing with the matter of presence of Defendant during the trial is Rule 1117.

"RULE 1117. PRESENCE OF THE DEFENDANT.

(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 ...


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