J-S66025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

NATHAN JOSEPH REIGLE

                            Appellant               No. 2122 MDA 2015


              Appeal from the Judgment of Sentence May 7, 2015
           In the Court of Common Pleas of Northumberland County
              Criminal Division at No(s): CP-49-CR-0001020-2013


BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 31, 2016

       Appellant, Nathan Joseph Reigle, appeals from the judgment of

sentence entered after his parole was revoked in absentia. In this appeal,

Reigle contends that his due process rights were violated when the trial

court failed to ensure he had notice of the hearing. After careful review, we

conclude that the record cannot conclusively establish that Reigle had notice

of the hearing and knowingly and voluntarily surrendered his right to be

present and be represented by counsel.1 We therefore vacate the judgment

of sentence and remand for further proceedings.

____________________________________________


1
  We note with reproval the Commonwealth’s failure to either file a brief in
response to the instant appeal or to otherwise inform this Court that it did
not intend to file a response to the arguments raised in Reigle’s brief. We
are therefore constrained to remind the Commonwealth that an appellee is
(Footnote Continued Next Page)
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      Preliminarily, we must address our jurisdiction to hear this appeal. It is

undisputed that the trial court imposed sentence on May 7, 2015. Thus, as

Reigle did not file a post-sentence motion, he was required to file a notice of

appeal by June 8, 2015.2 See Pa.R.A.P. 903(c)(3).

      A handwritten, pro se document entitled “Motion for Parole Revocation

Direct Appeal” is time stamped June 19, 2015. In this document, Reigle

asserts that his due process rights were violated and requests that the trial

court grant his “motion for direct appeal.” The timestamp further indicates

that copies of this document were sent to the District Attorney’s office as

well as to Kathleen Lincoln, Esquire. Attorney Lincoln is employed by

Northumberland County as conflicts counsel.

      It is undisputed that at the time of the parole revocation hearing,

Attorney Lincoln was no longer appointed to represent Reigle. Thus, at that

time, Reigle was unrepresented. The trial court never addressed Reigle’s

filing, and, on December 1, 2015, Reigle’s current counsel filed an appeal.

      The trial court opines in its opinion pursuant to Pa.R.A.P. 1925(a) that

Reigle’s appeal is untimely. However, the

                       _______________________
(Footnote Continued)

required to file a brief that at minimum must contain “a summary of
argument and the complete argument for the appellee.” Commonwealth
v. Pappas, 845 A.2d 829, 835 (Pa. Super. 2004) (citing Pa.R.A.P. 2112).
2
  Thirty days from May 7 was Saturday, June 6, 2015. Thus, the appeal
period ran until June 8. See 1 Pa.C.S.A. § 1908 (providing for computation
of time).



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      [f]ailure of an appellant to take any step other than the timely
      filing of a notice of appeal does not affect the validity of the
      appeal, but is subject to such action as the appellate court
      deems appropriate, which may include, but is not limited to,
      remand of the matter to the lower court so that the omitted
      procedural step may be taken.

Pa.R.A.P. 902. “A timely notice of appeal triggers the jurisdiction of the

appellate court, notwithstanding whether the notice of appeal is otherwise

defective.” Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014).

While a Prothonotary may inspect documents to ensure they are compliant

with requirements, its power to reject non-compliant documents is limited to

notification of the filing party so that a defect may be corrected through an

appropriate filing. See Commonwealth v. Willis, 29 A.3d 393, 396 (Pa.

Super. 2011).

      Here, Reigle’s “Motion for Parole        Revocation Direct Appeal” is

sufficiently clear to indicate his desire to file a direct appeal from his parole

revocation. If timely, it is sufficient to perfect our jurisdiction, and the

defects may be cured through an appropriate filing. The counseled

December 1, 2015 notice of appeal was sufficient to cure the defects.

      Thus, we must determine whether Reigle’s pro se notice of appeal was

timely filed. Under the prisoner mailbox rule, timeliness of a filing from an

incarcerated pro se party is measured from the date the prisoner places the

filing in the institution’s mailbox. See Smith v. Pa. Bd. Of Prob. and

Parole, 683 A.2d 278, 281 (Pa. 1996). This rule applies to “all appeals from

pro se prisoners[.]” Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.

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1997) (citation omitted). Reigle’s certificate of service indicates that he

placed his pro se notice appeal in the institution’s mailbox on June 5, 2015.

The Commonwealth has not challenged this certification. We therefore

conclude that Reigle timely filed his notice of appeal pursuant to the prisoner

mailbox rule. We have jurisdiction.

      Turning to the merits of Reigle’s appeal, we note that a defendant’s

right to be present at all critical stages of a criminal prosecution is enshrined

in   both   the    United   States    and    Pennsylvania   Constitutions.   See

Commonwealth v. Kelly, 78 A.3d 1136, 1141 (Pa. Super. 2013). In non-

capital cases, however, this right may be explicitly or implicitly waived. See

Comonwealth v. Wilson, 712 A.2d 735, 737 (Pa. 1998). “The waiver must

be knowing and voluntary.” Id. In cases of implicit waiver, it is the

Commonwealth’s burden to establish that the defendant was absent without

cause. See id.

      The Commonwealth presented the testimony of Matthew Narcavage,

Reigle’s parole officer:

      Q.    Are you involved in the supervision of Nathan Reigle?

      A.     That’s correct, I do currently supervise the defendant who
      is incarcerated at the state correctional facility in Coal Township,
      Pa.

      Q.   Was Mr. Reigle advised that he would be having a hearing
      today?

      A.    Yes.

      Q.    Would you explain to the Court why he is not here?

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      A.    I would like to add that the defendant was scheduled
      actually for two bench warrant hearings. He failed to appear for
      those. He was scheduled to have a Gagnon I hearing, and a
      revocation hearing this morning.

      Q.   What is your understanding of why he has not come to
      those?

      A.    He refuses to come to the hearing. I do have notice that
      he did receive sending the information to him for the date and
      the time of the hearing.

      Q.    Was transportation arranged to bring him here in the event
      that he was willing to come?

      A.    That’s correct, I was informed by the officers who were
      going to do the transport that, when they had contacted them to
      find out where the defendant was, they were informed that he
      refused to come to the hearing.

      Q.    Did that notice come         from   the   staff   at   the   state
      correctional institution?

      A.     That’s correct.

N.T., Revocation Hearing, 5/7/15, at 3-5 (emphasis supplied).

      It is clear from the highlighted portions of the transcript that officer

Narcavage did not have personal knowledge of the circumstances regarding

Reigle’s absence. Rather, his testimony consisted entirely of hearsay from

other Commonwealth agents. While it is true that in the absence of a timely

objection,   hearsay    testimony   is   competent      evidence,        see,    e.g.,

Commonwealth v. Faruharson, 354 A.2d 545, 552 (Pa. 1976), it is

important to understand that this hearsay testimony was the basis upon

which the trial court deprived Reigle the opportunity to lodge a timely


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objection. Thus, the general rule results in a paradox under these

circumstances.

      Where the asserted reason for the absence of an incarcerated

defendant is his refusal to attend, the Commonwealth is in control of all of

the witnesses necessary to meet its burden. Thus, the burden of evidence

based upon personal knowledge is not a significant one. While the testimony

of officer Narcavage would have been sufficient if it had been based upon

personal knowledge, it is legally insufficient in the absence thereof. The right

to be present for one’s defense in criminal proceedings is a fundamental

right under due process. Allowing the right to be implicitly waived based

upon the hearsay testimony of a Commonwealth witness would render that

right meaningless. We therefore vacate the judgment of sentence and

remand for further proceedings in accordance with this opinion.

      Judgment of sentence vacated. Case remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2016




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