J-S76024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MELISSA M. BURNWORTH

Appellant No. 962 WDA 2014

Appeal from the Judgment of Sentence May 13, 2014

In the Court of Common Pleas of Greene County

Criminal Division at No(s): CP-30-SA-0000009-2014

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J. FILED FEBRUARY 11, 2015

Appellant, Melissa M. Burnworth, appeals from the judgment of 

sentence entered May 13, 2014, in the Court of Common Pleas of Greene 

County. After careful review, we vacate the judgment of sentence and 

remand for further proceedings. 

Burnworth was charged with summary harassment, 18 Pa.C.S.A. 

2709(a)(1), following an altercation with her estranged husband during an 

exchange of custody of the couple’s minor child in a grocery store parking 

lot. Following a hearing at the magisterial district court, Burnworth was 

found guilty. Thereafter, Burnworth appealed and a de novo hearing was 

conducted before the Greene County Court of Common Pleas. The trial court 

convicted Burnworth and fined her $200.00, plus costs. This appeal 

followed.
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On appeal, Burnworth raises the following issue for our review:

I. After it was learned [sic] that defense witnesses did not 

separate themselves from the courtroom, did the trial 

court abuse its discretion when it refused to allow 

sequestered witnesses to testify, without any inquiry as to 

the knowledge of the witnesses of the sequestration order, 

where there was no participation by the defendant or her 

counsel in the failure to separate, where the failure to 

separate was inadvertent, and where there was no 

showing of prejudice to the Commonwealth thereby 

depriving defendant of right to fair trial and due process 

under the Pennsylvania and the United States 

[Constitutions]?

II. Was the Notice of Appeal timely filed and/or should the 

Notice of Appeal be deemed timely filed under the 

circumstances?

Appellant’s Brief at 8. 

Initially, we must address the timeliness of Burnworth’s appeal, as this 

implicates our jurisdiction. See Commonwealth v. Burks, 102 A.3d 497, 

500 (Pa. Super. 2014). A notice of appeal must be filed within 30 days after 

the entry of the order from which the appeal is taken. See Pa.R.A.P. 903. 

“In a criminal case in which no post-sentence motion[1] has been filed, the 

date of imposition of sentence in open court shall be deemed to be the date 

of entry of the judgment of sentence.” Pa.R.A.P. 108(d)(2) (footnote 

added). “Time limitations for taking appeals are strictly construed and 

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1

“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).
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cannot be extended as a matter of grace.” Burks, 102 A.2d at 500 (citation 

omitted). Nevertheless, this general rule does not affect the power of the 

courts to grant relief in the case of fraud or breakdown in the processes of 

the court. See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. 

Super. 2007).

Instantly, the trial court announced Burnworth’s judgment of sentence 

in open court following the conclusion of the de novo hearing conducted. 

Thus, Burnworth had 30 days, or until June 11, 2014, in which to file her 

notice of appeal. She did not do so until 31 days later, on June 12, 2014, a 

Thursday. Ordinarily, this would render Burnworth’s appeal untimely. Here, 

however, the record reveals that the trial court did not advise Burnworth of 

her appellate rights, or the time within which she must exercise those rights, 

as mandated by Pa.R.Crim.P. 704(C)(3)(a).2 

This Court has previously held that the failure to advise an appellant of 

his or her appellate rights at the time of sentencing constitutes a breakdown 

of the processes of the court that excuses an untimely filed notice of appeal. 

See, e.g., Commonwealth v. Hurst, 532 A.2d 865, 867-868 (Pa. Super. 

1987) (declining to quash untimely appeal where trial court failed to advise 

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2 At the time of sentencing, “[t]he judge shall determine on the record that 

the defendant has been advised ...”, inter alia, “of the right to file a postsentence motion and to appeal, ... [and] of the time within which the 

defendant must exercise those rights.” Pa.R.Crim.P. 704(C)(3)(a)

(emphasis added). 
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appellant of appellate rights). Finding that a court breakdown occurred, we 

will reach the merits of the instant appeal. 

Burnworth argues that the trial court improperly excluded the 

testimony of her mother, Donna Prevost, whom she claims was an 

eyewitness to the alleged harassment. Prior to trial, the parties agreed to a 

sequestration of witnesses. See N.T., Summary Appeal Trial, 5/12/14 at 3-

4. At the conclusion of the Commonwealth’s case, Burnworth attempted to 

call Donna Prevost, whom—unbeknownst to trial counsel— had been sitting 

in the courtroom throughout the trial. See id. at 28-29. Upon objection, 

the trial court precluded the witness’s testimony. See id. at 29. 

Regarding the preclusion of testimony based upon a violation of a 

sequestration order, we note:

The selection of a remedy for the violation of a sequestration 

order is within the discretion of the trial court. Commonwealth 

v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). However, to deny 

a criminal defendant the opportunity to present relevant and 

competent evidence in his defense would constitute a violation of 

his fundamental constitutional rights to compulsory process for 

obtaining witnesses in his favor and to a fair trial. 

Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161, 163 

(1981) (citing U.S. Const. amend. VI and XIV; Pa. Const. art. 1, 

§ 9; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 

L.Ed.2d 1019 (1967)). More than a century ago, the United 

States Supreme Court held that a defense witness’ violation of a 

sequestration order alone did not warrant exclusion of his 

testimony. Holder v. United States, 150 U.S. 91, 92, 14 S.Ct. 

10, 37 L.Ed. 1010 (1893). Absent a showing of fault on the part 

of the party or counsel who called a witness, an exclusion of a 

criminal defendant’s witness’ testimony solely because the 

witness violated a sequestration order is an abuse of discretion. 

Scott, 436 A.2d at 163.
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Commonwealth v. Robertson, 874 A.2d 1200, 1209-1210 (Pa. Super. 

2005). 

If the trial court concludes that the Commonwealth has been 

substantially prejudiced by the defense witness’ violation, a 

mistrial may be declared. If the violation is less serious, the trial 

court may conclude that a cautionary instruction to the jury 

would be sufficient to prevent prejudice to the Commonwealth. 

Only where a defense witness’ testimony is clearly irrelevant to a 

defendant’s case, and is therefore excludable on the independent 

ground of irrelevancy, should a trial judge completely exclude 

that witness’ testimony for an inadvertent violation of a 

sequestration order.

Scott, 436 A.2d at 163 (internal citations omitted). 

At trial, defense counsel professed that the failure to sequester the 

witness was inadvertent. See N.T., Summary Appeal Trial, 5/12/14 at 29 

(“I had no idea she was there either. ... I moved to sequester the witnesses, 

and I assumed that the witnesses left the room.”). The Commonwealth did 

not dispute defense counsel’s assertions, and the trial court seemingly 

credited the testimony at the time. See id. at 29-30 (“I’m certainly not 

accusing you of anything, but I’m not going to let her testify.”). Further, 

there is no showing on the record that the Commonwealth was prejudice by 

defense counsel’s inadvertence. As it appears from the present state of the 

record that the trial court’s preclusion of the witness’s testimony was based 

solely on the inadvertent violation of the sequestration order,3 we are 

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3 While we do not doubt that counsel’s violation of the sequestration order 

was inadvertent, counsel should, in the future, ensure that the witnesses 

have complied with the trial court’s sequestration directive.
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constrained to find that decision to have been an abuse of discretion.4 See 

Robertson (“Absent a showing of fault on the part of the party or counsel 

who called a witness, an exclusion of a criminal defendant's witness’ 

testimony solely because the witness violated a sequestration order is an 

abuse of discretion.”).

Accordingly, we vacate the judgment of sentence and remand for a 

new summary appeal trial. 

Judgment of sentence vacated. Case remanded for new trial. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/15

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4 As there is no indication in the record as to the content of the witness’s 

testimony, we can make no determination as to the relevance of the 

testimony.