J-S77009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KARNELL DAVIS                              :
                                               :
                       Appellant               :   No. 2582 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-0001149-2013


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 the

revocation of his probation. Davis contends, and both the Commonwealth and

trial court agree, that he was improperly sentenced while he was not present

in the courtroom.1       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

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 This appeal is related to the appeal at 3932 EDA 2017; trial court docket 51-
CR-0008343-2016. The related case involves the charges that led to the
revocation of probation. He was sentenced on both matters at the same time.
J-S77009-18



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.

      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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