J-A01027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

CHRISTOPHER COURTLEY,

                        Appellee                  No. 1218 WDA 2016


               Appeal from the Order Entered July 20, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-SA-0001154-2016

BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED MARCH 13, 2017

      The Commonwealth of Pennsylvania appeals from the order entered on

July 20, 2016 which vacated an order dismissing Christopher Courtley’s

(“Courtley’s”) summary appeal and purported to find him not guilty of the

offense charged. We vacate and remand for further proceedings consistent

with this memorandum.

      The factual background and procedural history of this case are as

follows.    On March 5, 2016, Courtley parked illegally on Fifth Avenue in

downtown Pittsburgh.     He received a parking citation for violating 75

Pa.C.S.A. § 3353(a)(1)(x).   On June 7, 2016, a magisterial district judge

found Courtley guilty and imposed a fine of $50.00. Courtley appealed to

the Court of Common Pleas of Allegheny County and a trial de novo was

scheduled for July 13, 2016. Courtley failed to appear on that date and the



* Retired Senior Judge assigned to the Superior Court
J-A01027-17


trial court dismissed the appeal and entered judgment against him.         See

Pa.R.Crim.P. 462(D).

      On July 20, 2016, Courtley appeared while the trial court was hearing

other summary appeals. Courtley briefly explained why he failed to appear

the previous week, stating that he overslept on his appointed court date

because   of   a   late   night   work   delivery   assignment.    Over    the

Commonwealth’s objection, the trial court vacated the July 13, 2016 order

dismissing Courtley’s appeal and purported to find Courtley not guilty of the

parking violation. This timely appeal followed.1

      The Commonwealth presents one issue for our review:

      Whether the trial court erred in entering a “[not guilty]” verdict
      in response to [Courtley’s] oral motion to reconsider the prior
      dismissal of his summary appeal and entry of judgment on the
      judgment of the issuing authority which occurred after [Courtley]
      failed to appear for his trial de novo?

Commonwealth’s Brief at 4.

      Preliminarily, we consider whether we have jurisdiction over this

appeal. See Commonwealth v. Demora, 149 A.3d 330, 331 (Pa. Super.

2016) (citation omitted) (“We may raise the issue of jurisdiction sua

sponte.”). We address this issue since the Commonwealth’s appeal in this


1
  On August 25, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). On August 31, 2016, the Commonwealth filed its
concise statement. On September 16, 2016, the trial court issued its Rule
1925(a) opinion. The Commonwealth’s lone issue raised on appeal was
included in its concise statement.



                                     -2-
J-A01027-17


case challenges an order that, among other things, acquitted Courtley of a

summary traffic offense.   In general, a factfinder’s verdict of not guilty is

deemed    “absolutely   final”   and    not   subject   to   appellate   review.

Commonwealth v. Martorano, 634 A.2d 1063, 1069 (Pa. 1993) (per

curiam) (citation omitted). As this Court has explained:

      It has long been well-settled that the Double Jeopardy Clause of
      the Fifth Amendment to the United States Constitution[, as
      incorporated by the Fourteenth Amendment,] prevents the
      prosecution from appealing a verdict of acquittal.              The
      prosecution may not appeal from a verdict of not guilty entered
      by the trial court in a criminal prosecution and this is so whether
      the prosecution be by indictment or by summary proceeding.
      The fact-finder in a criminal case has been traditionally
      permitted to enter an unassailable but unreasonable verdict of
      not guilty. This rule is such a fundamental precept of double
      jeopardy jurisprudence that it has been explicitly extended to
      situations where an acquittal is based upon an egregiously
      erroneous foundation. As such, a fact-finder’s verdict of not
      guilty is accorded absolute finality. It is completely insulated
      from appellate review.

Commonwealth v. Walczak, 655 A.2d 592, 595–496 (Pa. Super. 1995)

(internal quotation marks, alterations, and citations omitted). Therefore, if

jeopardy attached during the proceedings before the trial court, we lack

jurisdiction to hear this appeal. Cf. Martinez v. Illinois, 134 S.Ct. 2070,

2075-2076 (2014) (If jeopardy attaches, and the defendant is acquitted, the

prosecution may not appeal that determination). If, however, jeopardy did

not attach, we have jurisdiction over this appeal.

      We consider two possibilities for why jeopardy did not attach. First, if

the trial court lacked subject matter jurisdiction to vacate its July 13 order,



                                       -3-
J-A01027-17


then the finding of not guilty was a legal nullity and jeopardy did not attach.

See Commonwealth v. Stark, 584 A.2d 289, 291 n.4 (Pa. 1990). In this

case, we conclude that the trial court had jurisdiction to vacate its July 13

order.

      Pennsylvania Rule of Criminal Procedure 720(D) provides that, “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). Nonetheless, the comment to Rule 720 states that, “Although there

are no post-sentence motions in summary appeals following the trial de

novo pursuant to paragraph (D), nothing in this rule is intended to preclude

the trial judge from acting on a defendant’s petition for reconsideration.”

Pa.R.Crim.P. 720 cmt., citing 42 Pa.C.S.A. § 5505.      In this case, the trial

court’s July 20 order was entered within 30 days of its July 13 order.

Accordingly, the trial court had jurisdiction under section 5505 to vacate its

July 13 order.

      Having determined that the trial court had jurisdiction to enter its July

20 order, we consider whether jeopardy attached in the traditional sense.

“In a bench trial, jeopardy attaches when the trial court begins to hear the

evidence.” Commonwealth v. Martin, 97 A.3d 363, 365 (Pa. Super. 2014)

(ellipsis and citation omitted). In this case, the trial court did not begin to



                                     -4-
J-A01027-17


hear evidence. Specifically, Courtley was not administered an oath prior to

explaining the circumstances surrounding his absence from the July 13 trial

de novo and the parking ticket. See N.T., 7/20/16, at 2. Pennsylvania Rule

of Evidence 603 provides that, “Before testifying, a witness must give an

oath or affirmation to testify truthfully.   It must be in a form designed to

impress that duty on the witness[’] conscience.” Pa.R.Evid. 603. “The lack

of an oath means that there was no testimony.” Tecce v. Hally, 106 A.3d

728, 731 (Pa. Super. 2014), appeal denied, 125 A.3d 778 (Pa. 2015).

Therefore, Courtley’s “‘testimony’ was a nullity.” Id. As the trial court did

not begin to hear any evidence, jeopardy did not attach and we have

jurisdiction over this appeal.   See Commonwealth v. Wallace, 686 A.2d

1337, 1340 (Pa. Super. 1996) (finding that jeopardy did not attach because

the trial court did not receive any evidence).

      We next turn to the merits of the Commonwealth’s lone issue on

appeal. The Commonwealth argues that the trial court erred by vacating its

July 13 order without finding that Courtley was absent from the July 13 trial

de novo with cause. As this Court has stated:

      The Comment to Rule 462 explains that paragraph (D) makes it
      clear that the trial judge may dismiss a summary case appeal
      when the judge determines that the defendant is absent without
      cause from the trial de novo. Therefore, before a summary
      appeal may be dismissed for failure to appear, the trial court
      must ascertain whether the absentee defendant had adequate
      cause for his absence.       In the event that good cause is
      established, the defendant is entitled to a new summary trial.




                                     -5-
J-A01027-17


Commonwealth v. Dixon, 66 A.3d 794, 796 (Pa. Super. 2013) (internal

alteration, quotation mark, and citations omitted).

      In its Rule 1925(a) opinion, the trial court contends that it found that

Courtley “showed cause for not appearing at the prior hearing.” Trial Court

Opinion, 9/16/16, at 1. The transcript, however, belies that assertion. After

Courtley explained his reasons for missing the July 13 trial de novo, the trial

court did not make a determination that Courtley had shown cause for

missing the trial de novo.       See N.T., 7/20/16, at 2.        As no such

determination was made, we conclude that the trial court erred by vacating

its July 13 order.   We remand for a hearing to determine if Courtley had

cause for missing the July 13 trial de novo.2    If the trial court determines

that Courtley showed cause, it should vacate its July 13 order and schedule

a new trial de novo for some future date.             See Commonwealth v.

Marizzaldi, 814 A.2d 249, 252 (Pa. Super. 2002).

      Although we conclude that the trial court erred by vacating its July 13

order, we admonish the Commonwealth for its conduct in this appeal. In its




2
  We note that oversleeping is not sufficient cause to warrant vacatur of the
July 13 order. See Dixon, 66 A.3d at 798 (cause requires a showing “that
the circumstances causing [the defendant’s] absence were beyond his
control”). The Commonwealth, however, only requests a remand for an
evidentiary hearing in its prayer for relief. See Commonwealth’s Brief at
20. As such, we decline to grant the Commonwealth more relief than it
seeks by reversing the July 20 order.




                                     -6-
J-A01027-17


brief, the Commonwealth twice shouts3 that, “NO TESTIMONY WAS

TAKEN ON ANY ISSUE!!”            Commonwealth’s Brief at 8 (emphasis in

original); id. at 15 (same). Moreover, in its brief, and at oral argument, the

Commonwealth attacked the trial court’s integrity and implied that the trial

court acted corruptly in this case. See id. (“The Allegheny County Court of

Common Pleas, Summary Appeals Branch has a history of corruption.”).

Commonwealth’s Brief at 15.4       The Commonwealth, however, failed to

demonstrate “a reasonable basis for believing the statements were true.”

Office of Disciplinary Counsel v. Surrick, 749 A.2d 441, 444 (Pa. 2000).

We expressly hold that there is no evidence of corruption by the trial court

and are confident the trial court can properly dispose of this case on

remand.

      Order vacated. Case remanded. Jurisdiction relinquished.




3
  “There’s one convention that is incontestable: Typing in all caps is Internet
code for shouting, and it is rude.” Alice Robb, How Capital Letters Became
Interent Code for Yelling, New Republic, Apr. 17, 2014, goo.gl/HzoRqW (last
accessed Feb. 18, 2017).
4
   The Commonwealth later equivocates on this implication.     See
Commonwealth’s Brief at 17.  After the equivocation, however, the
Commonwealth once again strongly implies that the trial court acted
corruptly. See id. at 18-19.



                                     -7-
J-A01027-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/13/2017




                          -8-
