Opinion
June 14, 1974.
September 23, 1974.
Practice — Appeal from District Justice of the Peace to Court of Common Pleas — Hearing de novo — Appeal "dismissed" by Court of Common Pleas — Court of Common Pleas required to enter finding of "guilty" or "not guilty".
In this case, the defendant appealed from a finding of guilty before a District Justice of the Peace to the Court of Common Pleas. After a trial de novo, the Court of Common Pleas "dismissed" the appeal. It was Held that the matter must be remanded as the Court of Common Pleas on an appeal from the District Justice of the Peace must enter a finding of guilty or not guilty, and if guilty, must impose sentence.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 750, Oct. T., 1974, from order of Court of Common Pleas of Montgomery County, Jan.T., 1974, No. 62, in case of Commonwealth of Pennsylvania v. Kenneth A. Wenyon. Reversed and case remanded with a procedendo.
Proceedings upon appeal from summary conviction before District Justice of the Peace. Before HONEYMAN, J., without a jury.
Order entered dismissing appeal and affirming conviction of violation of The Vehicle Code. Defendant appealed.
Charles J. Weiss, with him Timoney, Knox, Avrigian Hasson, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, with him William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Argued June 14, 1974.
The record shows that on December 27, 1973, the appellant was tried before a District Justice of the Peace and found guilty of violating Section 1028(a) of The Vehicle Code (75 Pa.C.S.A. § 1028 (a)), in that he had failed to heed a red traffic signal.
After payment of fine and costs, the appellant appealed to the Court of Common Pleas, where a hearing de novo was held. At the conclusion of the hearing, the lower court stated on the record that: "The appeal is dismissed." Moreover, in an opinion prepared by the lower court, it is again noted that "The defendant's appeal was properly dismissed."
While it is implicit in the lower court's actions and opinion that it considered the evidence supportive of a finding of guilt, we must nevertheless follow established procedure and remand this matter in order that the lower court enter a finding of guilty or not guilty, and if guilty to impose sentence. Commonwealth v. Alton, 209 Pa. Super. 168, 224 A.2d 792 (1966); Commonwealth v. Young, 184 Pa. Super. 658, 135 A.2d 774 (1957).
Reversed and remanded with a procedendo.