J-S77010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

     COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
     KARNELL K. DAVIS                          :
                                               :
                       Appellant               :   No. 3932 EDA 2017

              Appeal from the Judgment of Sentence July 12, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008343-2016


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 07, 2019

        Karnell Davis appeals from the judgment of sentence imposed on July

12, 2017, in the Court of Common Pleas of Philadelphia County following his

guilty plea to possession with intent to deliver, possession of a controlled

substance, fleeing or attempting to elude a police officer, and driving with a

revoked or suspended license.1           At the same proceeding, Davis was also

sentenced regarding a violation of probation.2 Davis contends, and both the

Commonwealth and trial court agree, that he was improperly sentenced while
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

11   35 P.S. §§780-113(a)(30), (a)(16); 75 Pa.C.S. §§ 3733(a) and 1543(a).

2 Davis had been previously sentenced on both dockets and had filed a motion
for reconsideration. Sentence had been vacated prior to the hearing on the
motion for reconsideration, which was held on July 12, 2017.
J-S77010-18



he was not present in the courtroom.3 Accordingly, we vacate the judgment

of sentence and remand this matter for resentencing.

       As all the parties to the matter are well aware of the factual and

procedural history, and are in agreement regarding the resolution of this

appeal, we will simply refer to the record in that regard. We add only that it

is well settled that a criminal defendant has both the federal and state

constitutional right to be present during all critical phases of the proceedings.

See Snyder v. Massachusetts, 54 S.Ct. 330 (1934); Commonwealth v.

Ressler, 798 A.2d 221 (Pa. Super. 2002). This right has been included in the

Pennsylvania Rules of Criminal Procedure at Pa.R.Crim.P. 602(A), which

states:

       The defendant shall be present at every stage of the trial including
       the impaneling of the jury and the return of the verdict, and at
       the imposition of sentence, except as otherwise provided by
       this rule. The defendant’s absence without cause shall not
       preclude proceeding with the trial including a return of the verdict
       and the imposition of sentence.

Pa.R.Crim.P. 602(A) (emphasis added).

       All parties agree that the authorities did not bring Davis into the

courtroom; Davis bore no responsibility for his absence.




____________________________________________


3 This appeal is related to the appeal at 2582 EDA 2017; trial court docket 51-
CR-0001149-2013. The related appeal addresses the sentence for the
violation of probation.

                                           -2-
J-S77010-18



      Judgment    of   sentence   vacated.    This   matter   is   remanded    for

resentencing, which is to take place within 45 days of the return of the certified

record. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/19




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