Summary AppealsFebruary 19, 2021
As a defense attorney in Philadelphia, I receive a great many questions regarding summary appeals, so I thought I should write about summary appeals as a review. Understand what is written in this post is not meant to include Philadelphia county. In Philadelphia county my answers would be very similar but slightly different because of the existence of the Municipal Court of Philadelphia which functions much differently then magisterial district courts in all of the other counties.
In summary appeals, there are three basic statutes that control and I have posted them below. However, you should consider some very important points from these statutes when proceeding with your summary appeal.
First, you have to file the notice of appeal to the Court of Common Pleas in the county of the magisterial district court within 30 days of being found guilty. You must file the notice with the clerk of courts at the Court of Common Pleas. While there is a checklist below contained within the statute, many times, the clerk of courts in your county will have a form and they want you to fill out the form. You should fill out the form to make them happy and just check that the form contains all of the information listed below; you can write in extra stuff at the bottom of their form. After you file it with the clerk in the Court of Common Pleas, make sure that you get a time stamped copy. Do not file it at the magisterial court.
Second, in the Court of Common Pleas, make sure that you show up and be on time. In summary appeals in the Court of Common Pleas, the judge has the right to dismiss your appeal if you don’t show up on time. Many judges find these appeals to be a nuisance and will do anything they can to throw them off their list–if you aren’t there, they might just kick it.
Third, the appeal is a de novo appeal, meaning the trial judge in the Court of Common Pleas hearing the appeal is supposed to start fresh and hear the case as if it was never heard by the magisterial district judge.
Fourth, there is much debate of whether you can ask for a jury trial in these proceedings. In Baldwin v. New York, 399 U.S. 66, 69 (1970), the Supreme Court of the United States stated that in any case where you are facing imprisonment of more then six months, you are entitled to a jury trial. In Pennsylvania, the maximum on a summary is 90 days. Accordingly, if you are charged with three or more summaries, you should have a right to a jury trial on your de novo appeal. However, the statute under Pa. Code 462(A) is explicit that summary appeals are to be heard by a judge sitting without a jury. Arguably, this part of the statute is unconstitutional under federal law, making the entire statute unconstitutional. However, I think many DAs offices would rather just do the case as a jury or withdraw prosecution on all but two of the summaries so this issue can never be raised on appeal. I don’t think a judge could refuse to give the DA a jury in a de novo appeal with three or more summaries, because the PA constitution gives the DA an explicit right to demand their own jury trial.
Fifth, if you lose your summary appeal, the common pleas judge must give you appellate rights. If she does not give you your appellate rights on the record, you may be able to appeal your case even after 30 days passes.
Sixth, if you are sentenced to jail time, or given any sentence, when you state your intention to file a de novo appeal, you have a right to have the sentence stayed for thirty days until you file the appeal, then the stay continues until the conclusion of the appeal in the Court of Common Pleas.
If anyone is interested in why some of my answers are different in Philadelphia County, email or post a comment and I will write on it in the future.
The relevant three statutes are below:
Rule 460. Notice of Appeal.
(A) When an appeal is authorized by law in a summary proceeding, including an appeal following a prosecution for violation of a municipal ordinance that provides for imprisonment upon conviction or upon failure to pay a fine, an appeal shall be perfected by filing a notice of appeal within 30 days after the entry of the guilty plea, the conviction or other final order from which the appeal is taken. The notice of appeal shall be filed with the clerk of courts.
(B) The notice of appeal shall contain the following information:
(1) the name and address of the appellant;
(2) the name and address of the issuing authority who accepted the guilty plea or heard the case;
(3) the magisterial district number in which the case was heard;
(4) the name and mailing address of the affiant as shown on the complaint or citation;
(5) the date of the entry of the guilty plea, the conviction, or other final order from which the appeal is taken;
(6) the offense(s) of which convicted or to which a guilty plea was entered, if any;
(7) the sentence imposed, and if the sentence includes a fine, costs, or restitution, whether the amount due has been paid;
(8) the type or amount of bail or collateral, if any, furnished to the issuing authority;
(9) the name and address of the attorney, if any, filing the notice of appeal; and
(10) except when the appeal is from a guilty plea or a conviction, the grounds relied upon for appeal.
(C) Within 5 days after filing the notice of appeal, a copy shall be served either personally or by mail by the clerk of courts upon the issuing authority, the affiant, and the appellee or appellee’s attorney, if any.
(D) The issuing authority shall, within 20 days after receipt of the notice of appeal, file with the clerk of courts:
(1) the transcript of the proceedings;
(2) the original complaint or citation, if any;
(3) the summons or warrant of arrest, if any; and
(4) the bail bond, if any.
(E) This rule shall provide the exclusive means of appealing from a summary guilty plea or conviction. Courts of common pleas shall not issue writs of certiorari in such cases.
(F) This rule shall not apply to appeals from contempt adjudications.
Rule 461. Stays.
(A) In all summary cases in which a sentence of imprisonment has been imposed, execution of sentence shall be stayed until the time for appeal expires.
(B) In any summary case in which a notice of appeal is filed, the execution of sentence shall be stayed.
(C) A defendant who is represented by counsel, or a defendant who has waived counsel as provided in Rule 121, may waive the stay. The waiver must be in writing, signed by the defendant and defendant’s counsel, if any, and made a part of the record.
(D) Whenever the execution of sentence is stayed pursuant to this rule, the issuing authority may set collateral.
(E) During the 30-day appeal period, failure to pay fines and costs, or restitution, shall not be grounds for imprisonment, and shall not be grounds to preclude the taking of an appeal.
Rule 462. Trial De Novo.
(A) When a defendant appeals after the entry of a guilty plea or a conviction by an issuing authority in any summary proceeding, upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the judge of the court of common pleas sitting without a jury.
(B) The attorney for the Commonwealth may appear and assume charge of the prosecution. When the violation of an ordinance of a municipality is charged, an attorney representing that municipality, with the consent of the attorney for the Commonwealth, may appear and assume charge of the prosecution. When no attorney appears on behalf of the Commonwealth, the affiant may be permitted to ask questions of any witness who testifies.
(C) In appeals from summary proceedings arising under the Vehicle Code or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the alleged offense must appear and testify. The failure of a law enforcement officer to appear and testify shall result in the dismissal of the charges unless:
(1) the defendant waives the presence of the law enforcement officer in open court on the record;
(2) the defendant waives the presence of the law enforcement officer by filing a written waiver signed by the defendant and defense counsel, or the defendant if proceeding pro se, with the clerk of courts; or
(3) the trial judge determines that good cause exists for the law enforcement officer’s unavailability and grants a continuance.
(D) If the defendant fails to appear, the trial judge may dismiss the appeal and enter judgment in the court of common pleas on the judgment of the issuing authority.
(E) If the defendant withdraws the appeal, the trial judge shall enter judgment in the court of common pleas on the judgment of the issuing authority.
(F) The verdict and sentence, if any, shall be announced in open court immediately upon the conclusion of the trial, or, in cases in which the defendant may be sentenced to intermediate punishment, the trial judge may delay the proceedings pending confirmation of the defendant’s eligibility for intermediate punishment.
(G) At the time of sentencing, the trial judge shall:
(1) if the defendant’s sentence includes restitution, a fine, or costs, state the date on which payment is due. If the defendant is without the financial means to pay the amount in a single remittance, the trial judge may provide for installment payments and shall state the date on which each installment is due;
(2) advise the defendant of the right to appeal to the Superior Court within 30 days of the imposition of sentence, and that, if an appeal is filed, the execution of sentence will be stayed and the trial judge may set bail;
(3) if a sentence of imprisonment has been imposed, direct the defendant to appear for the execution of sentence on a date certain unless the defendant files a notice of appeal within the 30-day period; and
(4) issue a written order imposing sentence, signed by the trial judge. The order shall include the information specified in paragraphs (G)(1) through (G)(3), and a copy of the order shall be given to the defendant.
(H) After sentence is imposed by the trial judge, the case shall remain in the court of common pleas for the execution of sentence, including the collection of any fine and restitution, and for the collection of any costs.