J-S17022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

DONALD PRISTAS

                           Appellant                  No. 1035 WDA 2015


              Appeal from the Judgment of Sentence June 3, 2015
      in the Court of Common Pleas of Allegheny County Criminal Division
                       at No(s):CP-02-SA-0000691-2015

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

DISSENTING STATEMENT BY FITZGERALD, J.:                 FILED JULY 13, 2016

        I respectfully dissent because although the majority astutely observes

Appellant’s conviction is properly graded as a misdemeanor of the third

degree, the Commonwealth and Appellant proceeded as if the offense was a

summary one.1 It is, in my view, against the interests of fairness and due

process to affirm the conviction without ensuring Appellant had proper notice

of the severity of the offense he faced and his attendant constitutional

rights.2 Accordingly, I would remand this matter to the trial court, afford the


*
    Former Justice specially assigned to the Superior Court.
1
 It appears, however, that the trial court imposed a fine in line with a
misdemeanor of the third degree. See 18 Pa.C.S. § 1101(6)-(7).
2
 For example, because the parties proceeded in the court of common pleas
as if the matter were a summary appeal, it is unclear whether Appellant was
apprised of his right to a jury for a crime involving a possible sentence of
J-S17022-16


parties an opportunity to clarify the nature of the proceedings, grant leave to

the Commonwealth to amend the citation to pursue a summary offense if it

so desires, and permit a new trial.3




imprisonment exceeding six months. Compare 18 Pa.C.S. § 1104(3), and
Commonwealth v. McMullen, 961 A.2d 842, 847 (Pa. 2008), with
Pa.R.Crim.P. 462 (providing a summary appeal shall be heard de novo by
the judge of the court of common pleas sitting without a jury). Moreover,
there is no evidence showing the trial court and the Commonwealth
discharged their correlative duties to apprise Appellant of the gravity of the
offense, the right to counsel, and the consequences of his decision to
proceed pro se. Therefore, the breakdowns in the underlying proceedings
were so fundamental that I would not find waiver.
3
  Although I would also suggest that the General Assembly, in enacting a
misdemeanor harassment offense, did not intend to criminalize a single
spur-of-the moment utterance under the circumstances here, I do not reach
that issue in light of my belief that a remand is required based on the
confusion over the grading issue.



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