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07/28/97 COMMONWEALTH PENNSYLVANIA v. TIMOTHY S.

July 28, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
TIMOTHY S. LOWE, APPELLANT



Appeal from the Judgment of Sentence, July 29, 1996, in the Court of Common Pleas of Allegheny County, Criminal Division, No. CL 888-96. Before DAUER, J.

Before: Beck, Ford Elliott, And Hester, JJ. Opinion BY Ford Elliott.

The opinion of the court was delivered by: Elliott

OPINION BY FORD ELLIOTT, J.:

Filed: July 28, 1997

On appeal, we are asked to resolve the question, whether in a hearing on a summary appeal de novo, at which the defendant fails to appear, the trial court may properly find the defendant guilty when the Commonwealth presents no evidence and merely rests on the record. We affirm.

Instantly, Timothy Lowe appeals the sentence imposed on July 29, 1996, in the Court of Common Pleas of Allegheny County, subsequent to his conviction for driving while operating privilege is suspended or revoked (DUI related), in violation of 75 Pa. C.S. § 1543(B). Lowe (hereinafter appellant) had apparently been is -- sued a citation for this vehicle code violation on March 15, 1996.

Appellant was initially adJudged guilty by a district Justice. He then appealed his conviction to the Court of Common Pleas of Allegheny County, which scheduled a trial de novo for July 29, 1996. Appellant did not appear for trial, and in his absence, the court found him guilty; no testimony was presented.

The following is a complete reproduction of the trial transcript:

ASSISTANT DISTRICT ATTORNEY: The defendant is not present in court. The Commonwealth would rest on the record.

THE COURT: The defendant is found guilty. The appeal is dismissed.

Notes of testimony, 7/29/96.

Appellant contends that the court erred in not requiring the Commonwealth to present its case in his absence before a finding of guilt. Our resolution of this issue requires consideration of two rules of criminal procedure: Rule 86, Appeals from Summary Judgments, and Rule 1117, Presence of the Defendant, both of which address the failure to appear at a summary appeal.

Rule 86(a) specifies the manner of taking a summary appeal.

(a) When an appeal is authorized by law in a summary proceeding, including a prosecution for violation of a municipal ordinance which provides for imprisonment upon conviction or upon failure to pay a fine, an appeal shall be perfected by filing a notice of appeal within 30 days after the conviction or other final order from which the appeal is taken and by appearing in the court of ...


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