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COMMONWEALTH PENNSYLVANIA v. STEVEN CUNNINGHAM (12/08/88)

filed: December 8, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
STEVEN CUNNINGHAM, APPELLANT



Appeal from the Order Entered April 8, 1988 in the Court of Common Pleas of Montgomery County, Criminal No. 1726-87.

COUNSEL

Martin J. Cunningham, Jr., Norristown, for appellant.

Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.

Cirillo, President Judge, and Wieand and McEwen, JJ.

Author: Cirillo

[ 380 Pa. Super. Page 178]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County, sentencing appellant Steven Cunningham to pay a fine of two hundred dollars and the costs of prosecution for the offense of driving while his license was suspended. We affirm.

Appellant Cunningham was initially charged with and found guilty of driving while under suspension (DUI related),*fn1

[ 380 Pa. Super. Page 179]

    at a summary trial before a district justice. He appealed this summary conviction to the Court of Common Pleas of Montgomery County; in a trial de novo, that court found him guilty of driving while under suspension.*fn2 In response to Cunningham's argument on post-trial motions that he had not been charged with the offense for which he was convicted, the court of common pleas stated that driving while under suspension was a lesser included offense of of driving while under suspension (DUI related). Therefore, according to the court, no amendment to the citation issued to Cunningham was necessary, and the conviction was proper. The trial court denied the post-trial motions, and Cunningham appealed to this court.

Cunningham argues on appeal that the function of the court of common pleas in hearing an appeal from a summary conviction is to find the defendant either guilty or not guilty. He also argues that the court did not have the authority to convict him for a violation of 75 Pa.C.S. § 1543(a), when he had been tried and found guilty of a violation of 75 Pa.C.S. § 1543(b) in summary proceedings. Lastly, he claims that in finding him guilty of that offense, the court of common pleas was in contravention of Pennsylvania Rule of Criminal Procedure 51.*fn3 We disagree with appellant's arguments, and affirm the judgment of sentence.

[ 380 Pa. Super. Page 180]

Cunningham's arguments seem to be based on the premise that in hearing an appeal from a summary judgment conviction, the court of common pleas may only determine whether or not a defendant is guilty of the charges Page 180} from which he appeals. Cunningham argues that the trial court erred in finding him guilty of an offense not included in the citation. He points out that the Pennsylvania Rules of Criminal Procedure provide ample opportunity to the arresting officer or district justice to amend the citation, see Pa.R.Crim.P. 90, and that this was not done in his case.

It is true that on an appeal from a judgment rendered in summary conviction proceedings, the court of common pleas cannot enter a judgment which affirms the judgment of the district justice, or which dismisses or sustains the appeal. Commonwealth v. Gula, 300 Pa. Super. 445, 446, 446 A.2d 938, 939 (1982); Commonwealth v. Gamarino, 299 Pa. Super. 144, 145, 445 A.2d 189, 190 (1982). Rather, the court of common pleas must hear the case de novo, and render a verdict of guilty or not guilty: "'It is the duty of the court to try the case de novo, to hear the evidence and arguments of counsel, to find the facts and thereupon to enter such judgment as would be warranted under the law and evidence.'" Gamarino, 299 Pa. Super. at 145, 445 A.2d at 190 (quoting Commonwealth v. Miller, 173 Pa. Super. ...


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