Appeal from the Order of April 17, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-SA-0000454-2013.
Joseph D. Seletyn, Esq.
BEFORE: BOWES, J., WECHT, J., and STABILE, J.
Brian Sita appeals the April 17, 2013 order dismissing his summary appeal due to his alleged absence. We vacate the order, and remand with instructions to the trial court.
Sita, who is deaf, was charged with the traffic offense of driving on divided highways, 75 Pa.C.S. § 3311(a). Sita was found guilty by a magisterial district judge. Sita file a pro se appeal, and was notified that a de novo trial would occur in the Court of Common Pleas of Allegheny County on April 17, 2013. On that date, the trial court, believing that Sita had failed to appear, dismissed the appeal. However, as Sita explains in his brief to this Court, he was present in the courtroom but was unable to locate a sign language interpreter and was unaware that his case had been called and dismissed. Sita later learned that his case had been dismissed due to his alleged failure to appear. He then filed the instant appeal.
Pursuant to Pa.R.Crim.P. 462(D), if a defendant fails to appear for a de novo summary trial, the "trial judge may dismiss the appeal and enter judgment" against the defendant. The Comment to the rule explains that "[p]aragraph (D) makes it clear that the trial judge may dismiss a summary case appeal when the judge determines that the defendant is absent without cause from the trial de novo." Pa.R.Crim.P. 462, cmt. Thus, we will grant a new summary trial after a defendant fails to appear: (1) when the trial court dismisses the hearing without ascertaining whether the absentee defendant had cause to justify the absence; and (2) when the absentee defendant has established before this Court a prima facie demonstration that good cause existed such that his absence involuntary. Commonwealth v. Dixon, 66 A.3d 764, 798 (Pa.Super. 2013); Commonwealth v. Marizzaldi, 814 A.2d 249, 252-53 (Pa.Super. 2002).
Instantly, we conclude that both prongs have been met. At the de novo trial, the trial court made no effort to determine the cause of Sita's absence. Notes of Testimony, 4/14/2013, at 1. We also conclude that Sita's disability constitutes good cause to render the situation, as it occurred, beyond his control. Thus, we vacate the trial court's order, and remand for a new summary trial. We also instruct the trial court to ensure that Sita is provided with a sign language interpreter to aide him during the proceeding.
Order vacated. Case remanded. Jurisdiction ...