J-S66025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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sentence entered after his parole was revoked in absentia.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

____________________________________________

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 

(Footnote Continued Next Page)
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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 

(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 noncapital 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