decided: December 19, 1984.
COMMONWEALTH OF PENNSYLVANIA
MICHAEL VIANELLO, APPELLANT
NO. 2488 PHILADELPHIA 1983, Appeal of the Order of the Court of Common Pleas of Monroe County, Criminal Division, at Nos. 492, 525 and 526 of 1983.
Michael Vianello, appellant, in propria persona.
James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.
Wieand, Del Sole and Popovich, JJ.
Author: Del Sole
[ 337 Pa. Super. Page 149]
Appellant was convicted before a district justice of the following summary offenses: driving an unregistered vehicle, failing to exhibit and sign a vehicle registration card and harassment. Appellant then filed a timely appeal de novo of the convictions to the Monroe County Common Pleas Court. Appellant's trial de novo was scheduled for July 27, 1983 at 9:30 a.m. By order of August 22, 1983, the trial court dismissed Appellant's appeal de novo for Appellant's failure to appear when the case was called for trial. It is that order which is the subject of the instant appeal.
[ 337 Pa. Super. Page 150]
Appellant admits that he did not appear for trial until between 9:45 a.m. and 9:50 a.m. on the scheduled date. However, Appellant argues on appeal that the trial court should not have dismissed his appeal but rather proceeded with the trial in his absence and rendered a verdict on the evidence presented by the Commonwealth. We agree with Appellant. Accordingly, the trial court's order dismissing Appellant's appeal de novo is reversed and the case is remanded for a new trial.
In its opinion accompanying the order dismissing Appellant's appeal de novo the trial court cites solely in support Commonwealth v. Smith, 237 Pa. Super. 506, 352 A.2d 90 (1975) for the proposition that a trial in an appeal de novo of a summary conviction need not be held if the defendant fails to appear at the scheduled hearing without cause for such absence. However, a review of the law in this Commonwealth shows the trial court's reliance on Smith to be misplaced and clearly error.
The case controlling our disposition is Commonwealth v. Kyle, 307 Pa. Super. 446, 453 A.2d 668 (1982). In Kyle, as in the case sub judice, the defendant's appeal de novo from a summary traffic conviction was dismissed for Appellant's failure to appear at trial. This Court noted in Kyle that we have repeatedly held that in an appeal of a summary offense to the court of common pleas, the judgment of the common pleas court should be a verdict of "guilty" or "not guilty". 307 Pa. Super. at 448, 453 A.2d at 669. See also 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). The Kyle Court held that pursuant to Rule 1117 of the Pennsylvania Rules of Criminal Procedure the trial court, even if empowered to proceed without a defendant, must determine the facts and render a verdict, it cannot merely dismiss the appeal. 307 Pa. Super. at 449, 453 A.2d at 669. Further, this Court found that Commonwealth v. Smith, supra, was not controlling since it had been effectively overruled by this Court's holding in Commonwealth v. Koch, 288 Pa. Super. 290, 431 A.2d 1052
[ 337 Pa. Super. Page 151]
(1981). 307 Pa. Super. at 449, 453 A.2d at 669, footnote 3. Finally, our holding in Kyle has since been applied by this Court in at least one other case. See Commonwealth v. Krut, 311 Pa. Super. 64, 457 A.2d 114 (1983).
In the instant case, Appellant's appeal de novo was dismissed for his failure to appear at trial. Based on Kyle the trial court, upon discovering that Appellant was not present when the case was called for trial, should have required the Commonwealth to proceed with its case and then rendered a verdict of guilty or not guilty based on the evidence presented. Thus, the trial court's decision to dismiss the appeal was error as was the trial court's reliance on Commonwealth v. Smith, supra. Accordingly, we reverse the trial court's order and remand for a new trial.
Case remanded for a new trial.
Jurisdiction is relinquished.
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