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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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sentence entered after his parole was revoked in absentia.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.
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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
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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
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(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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