J-S76024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

MELISSA M. BURNWORTH

                         Appellant                 No. 962 WDA 2014


             Appeal from the Judgment of Sentence May 13, 2014
               In the Court of Common Pleas of Greene County
             Criminal Division at No(s): CP-30-SA-0000009-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                     FILED FEBRUARY 11, 2015

       Appellant, Melissa M. Burnworth, appeals from the judgment of

sentence entered May 13, 2014, in the Court of Common Pleas of Greene

County.     After careful review, we vacate the judgment of sentence and

remand for further proceedings.

       Burnworth was charged with summary harassment, 18 Pa.C.S.A.

2709(a)(1), following an altercation with her estranged husband during an

exchange of custody of the couple’s minor child in a grocery store parking

lot.   Following a hearing at the magisterial district court, Burnworth was

found guilty.   Thereafter, Burnworth appealed and a de novo hearing was

conducted before the Greene County Court of Common Pleas. The trial court

convicted Burnworth and fined her $200.00, plus costs.         This appeal

followed.
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       On appeal, Burnworth raises the following issue for our review:

       I.     After it was learned [sic] that defense witnesses did not
              separate themselves from the courtroom, did the trial
              court abuse its discretion when it refused to allow
              sequestered witnesses to testify, without any inquiry as to
              the knowledge of the witnesses of the sequestration order,
              where there was no participation by the defendant or her
              counsel in the failure to separate, where the failure to
              separate was inadvertent, and where there was no
              showing of prejudice to the Commonwealth thereby
              depriving defendant of right to fair trial and due process
              under    the   Pennsylvania and      the    United States
              [Constitutions]?

       II.    Was the Notice of Appeal timely filed and/or should the
              Notice of Appeal be deemed timely filed under the
              circumstances?

Appellant’s Brief at 8.

       Initially, we must address the timeliness of Burnworth’s appeal, as this

implicates our jurisdiction. See Commonwealth v. Burks, 102 A.3d 497,

500 (Pa. Super. 2014). A notice of appeal must be filed within 30 days after

the entry of the order from which the appeal is taken. See Pa.R.A.P. 903.

“In a criminal case in which no post-sentence motion[1] has been filed, the

date of imposition of sentence in open court shall be deemed to be the date

of entry of the judgment of sentence.”           Pa.R.A.P. 108(d)(2) (footnote

added).      “Time limitations for taking appeals are strictly construed and
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1
   “There shall be no post-sentence motion in summary case appeals
following a trial de novo in the court of common pleas. The imposition of
sentence immediately following a determination of guilt at the conclusion of
the trial de novo shall constitute a final order for purposes of appeal.”
Pa.R.Crim.P. 720(D).



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cannot be extended as a matter of grace.” Burks, 102 A.2d at 500 (citation

omitted). Nevertheless, this general rule does not affect the power of the

courts to grant relief in the case of fraud or breakdown in the processes of

the court. See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa.

Super. 2007).

       Instantly, the trial court announced Burnworth’s judgment of sentence

in open court following the conclusion of the de novo hearing conducted.

Thus, Burnworth had 30 days, or until June 11, 2014, in which to file her

notice of appeal. She did not do so until 31 days later, on June 12, 2014, a

Thursday. Ordinarily, this would render Burnworth’s appeal untimely. Here,

however, the record reveals that the trial court did not advise Burnworth of

her appellate rights, or the time within which she must exercise those rights,

as mandated by Pa.R.Crim.P. 704(C)(3)(a).2

       This Court has previously held that the failure to advise an appellant of

his or her appellate rights at the time of sentencing constitutes a breakdown

of the processes of the court that excuses an untimely filed notice of appeal.

See, e.g., Commonwealth v. Hurst, 532 A.2d 865, 867-868 (Pa. Super.

1987) (declining to quash untimely appeal where trial court failed to advise


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2
  At the time of sentencing, “[t]he judge shall determine on the record that
the defendant has been advised ...”, inter alia, “of the right to file a post-
sentence motion and to appeal, ... [and] of the time within which the
defendant must exercise those rights.”           Pa.R.Crim.P. 704(C)(3)(a)
(emphasis added).



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appellant of appellate rights).   Finding that a court breakdown occurred, we

will reach the merits of the instant appeal.

      Burnworth argues that the trial court improperly excluded the

testimony of her mother, Donna Prevost, whom she claims was an

eyewitness to the alleged harassment. Prior to trial, the parties agreed to a

sequestration of witnesses. See N.T., Summary Appeal Trial, 5/12/14 at 3-

4. At the conclusion of the Commonwealth’s case, Burnworth attempted to

call Donna Prevost, whom—unbeknownst to trial counsel— had been sitting

in the courtroom throughout the trial.      See id. at 28-29. Upon objection,

the trial court precluded the witness’s testimony. See id. at 29.

      Regarding the preclusion of testimony based upon a violation of a

sequestration order, we note:

      The selection of a remedy for the violation of a sequestration
      order is within the discretion of the trial court. Commonwealth
      v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). However, to deny
      a criminal defendant the opportunity to present relevant and
      competent evidence in his defense would constitute a violation of
      his fundamental constitutional rights to compulsory process for
      obtaining witnesses in his favor and to a fair trial.
      Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161, 163
      (1981) (citing U.S. Const. amend. VI and XIV; Pa. Const. art. 1,
      § 9; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18
      L.Ed.2d 1019 (1967)). More than a century ago, the United
      States Supreme Court held that a defense witness’ violation of a
      sequestration order alone did not warrant exclusion of his
      testimony. Holder v. United States, 150 U.S. 91, 92, 14 S.Ct.
      10, 37 L.Ed. 1010 (1893). Absent a showing of fault on the part
      of the party or counsel who called a witness, an exclusion of a
      criminal defendant’s witness’ testimony solely because the
      witness violated a sequestration order is an abuse of discretion.
      Scott, 436 A.2d at 163.



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Commonwealth v. Robertson, 874 A.2d 1200, 1209-1210 (Pa. Super.

2005).

       If the trial court concludes that the Commonwealth has been
       substantially prejudiced by the defense witness’ violation, a
       mistrial may be declared. If the violation is less serious, the trial
       court may conclude that a cautionary instruction to the jury
       would be sufficient to prevent prejudice to the Commonwealth.
       Only where a defense witness’ testimony is clearly irrelevant to a
       defendant’s case, and is therefore excludable on the independent
       ground of irrelevancy, should a trial judge completely exclude
       that witness’ testimony for an inadvertent violation of a
       sequestration order.

Scott, 436 A.2d at 163 (internal citations omitted).

       At trial, defense counsel professed that the failure to sequester the

witness was inadvertent.        See N.T., Summary Appeal Trial, 5/12/14 at 29

(“I had no idea she was there either. … I moved to sequester the witnesses,

and I assumed that the witnesses left the room.”). The Commonwealth did

not dispute defense counsel’s assertions, and the trial court seemingly

credited the testimony at the time.            See id. at 29-30 (“I’m certainly not

accusing you of anything, but I’m not going to let her testify.”).         Further,

there is no showing on the record that the Commonwealth was prejudice by

defense counsel’s inadvertence. As it appears from the present state of the

record that the trial court’s preclusion of the witness’s testimony was based

solely on the inadvertent violation of the sequestration order,3 we are
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3
 While we do not doubt that counsel’s violation of the sequestration order
was inadvertent, counsel should, in the future, ensure that the witnesses
have complied with the trial court’s sequestration directive.



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constrained to find that decision to have been an abuse of discretion. 4   See

Robertson (“Absent a showing of fault on the part of the party or counsel

who called a witness, an exclusion of a criminal defendant's witness’

testimony solely because the witness violated a sequestration order is an

abuse of discretion.”).

       Accordingly, we vacate the judgment of sentence and remand for a

new summary appeal trial.

       Judgment of sentence vacated.             Case remanded for new trial.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/15




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4
  As there is no indication in the record as to the content of the witness’s
testimony, we can make no determination as to the relevance of the
testimony.



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