Com. v. Ah Thank Lee

• Decision Date: 21 December 1989
• Citation: 389 Pa.Super. 201,566 A.2d 1205
• Parties: COMMONWEALTH of Pennsylvania v. AH THANK LEE, Appellant. 354 PHILA. 1989
• Court: Pennsylvania Superior Court

Page 1205

566 A.2d 1205

389 Pa.Super. 201

COMMONWEALTH of Pennsylvania v. AH THANK LEE, Appellant.

354 PHILA. 1989

Superior Court of Pennsylvania.

Argued Sept. 19, 1989.

Filed Oct. 23, 1989.

Reargument Denied Dec. 21, 1989.

Peter C. Bowers, Philadelphia, for appellant.

Kathy Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before TAMILIA, KELLY and CERCONE, JJ.

TAMILIA, Judge:

Appellant was convicted by a jury on June 30, 1988 of second degree murder, ¹ criminal conspiracy, ² robbery ³ and possessing an instrument of crime. ⁴ Immediately after trial appellant was sentenced to the mandatory term of life imprisonment for the murder, but sentencing on the other convictions was deferred pending the disposition of post-trial motions. Post-trial motions were timely filed and a hearing was scheduled for September 8, 1988. At the end of August, however, appellant was mistakenly sent back to New York, on the Philadelphia district attorney's authorization, to continue serving a sentence which preexisted his trial in the instant case. The hearing on post-trial motions was continued to allow the district attorney an opportunity to have appellant returned for the hearing and sentencing. Three hearings on the matter were held in New York and appellant, represented by counsel, refused to consent to his return to Pennsylvania (transcripts from October 31, November 4 and November 18, 1988 are included in the case record). Finally, on December 28, 1988, a hearing was held to dispose of the post-trial motions and appellant was sentenced in absentia to five to ten years imprisonment for conspiracy and two and one-half to five years imprisonment for possessing an instrument of crime, all sentences to run consecutively. The robbery conviction merged with the murder for sentencing purposes. A motion for reconsideration was filed and denied and appellant now raises six issues on appeal. The facts are as follows.

Appellant and two others entered the Ho Sai Gai Restaurant in Philadelphia on August 14, 1983 to extort "protection" money from the owner. Apparently, they were members of a New York gang and had collected "dues" from Chinatown restaurants there. The owner refused their demands so they tried to open the cash register. The manager, Jade Wong, was discovered calling police and one of appellant's co-conspirators shot her in front of two eyewitnesses.

Appellant's first issue raises the propriety of the trial court refusing a continuance and conducting the post-trial motions hearing and sentencing without appellant being present. Defense counsel had sought a continuance of the hearing because appellant was still in New York, would not return to Philadelphia and counsel was unable to consult with him or contact him in New York. The trial court found appellant had refused his opportunity to be present, thereby waiving his rights, and the hearing could be held without him pursuant to Pa.R.Crim.P. 359(D). ⁵ We find there was no error in holding the hearing and sentencing appellant in absentia.

The trial court has discretion over a request for continuance and a denial of such a request will not be reversed absent a showing of palpable and manifest abuse of the court's discretion. Commonwealth v. Mehalic, 382 Pa.Super. 264, 555 A.2d 173 (1989). Although appellate counsel argues he had insufficient time to prepare before argument, we will not reverse a denial of a continuance on the mere allegation that more time to prepare was necessary. Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295 (1986).

Mere shortness of time in which to prepare does not mandate the granting of a continuance. An appellant must be able to show specifically in what manner he was unable to prepare his defense or how he would have prepared differently had he been given more time. We will not reverse a denial of a motion for continuance in the absence of prejudice. (Citations omitted.)

Id. at 125, 505 A.2d at 298.

Appellant's counsel had ample time to consult with his client from the time appellant was sentenced, June 30, 1988, until the hearing date, December 28, 1988. In fact, when post-trial motions were filed, appellant was still incarcerated in Philadelphia. Although counsel argues he could not contact his client in New York because appellant could receive no phone calls, counsel could have communicated with appellant by letter or through contact with appellant's New York counsel. The fact that counsel was unaware the hearing would proceed without appellant until seven days prior to December 28th is insufficient reason to reverse the denial of the continuance; counsel should have been prepared for that possibility, knowing his client had refused to appear.

Furthermore, although it is a leading principle of criminal law that after indictment, nothing shall be done in the absence of the defendant, this right can be waived by the defendant's words or actions. Commonwealth v. Craddock, 370 Pa.Super. 139, 535 A.2d 1189 (1988), affirmed per curiam, --- Pa. ----, 564 A.2d 151 (1989). Additionally, this right is not inclusive of every step in the proceedings.

The United States Supreme Court has long recognized that a defendant needs to be present at any proceeding that "bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend." Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934), quoted in [Commonwealth v. McLaurin, 292 Pa.Super. 392, 396, 437 A.2d 440, 443, (1981).] Therefore, a defendant's right to be present at all stages of his trial does not extend to all procedural matters in preparation for trial such as preliminary pretrial motions and arguments on matters of law, especially where his absence causes no prejudice, but his presence is required when the testimony of witnesses is being given. Id.

In Interest of Borden, 376 Pa.Super. 468, 472, 546 A.2d 123, 125 (1988).

Appellant may not, on the one hand, refuse to return to Philadelphia for the hearing on his post-trial motions, and on the other, claim his right to be present has been violated. He in essence argues the Commonwealth could have and should have forced him to return because he had a right to be present and they denied his right by transferring him to New York prematurely. We reject this attempt at procedural game-playing and agree with the trial court that appellant is simply trying to frustrate the administration of justice. When appellant refused to return to Pennsylvania he waived any right to be present, and the court had no choice but to proceed without him.

As to appellant's next four issues, ⁶ we agree with the trial judge, the Honorable Albert Sabo, and the Commonwealth that these are waived. Slip Op., Sabo, J., 4/19/89, p. 4; Appellee's brief at p. 15. Although allegations II, III and V were initially properly preserved in post-trial motions (Record at # 23), we find them waived for failure, at the trial court level, to brief them or argue them at the hearing.

The Pennsylvania Supreme Court has made it "abundantly clear" that only issues "which are raised in a post-trial motion in accordance with [Pa.R.Crim.P.] 1123, and briefed or argued before the court hearing the motion, will be considered preserved for appellate review." Commonwealth v. Manigault, 501 Pa. 506, 509, 462 A.2d 239, 241 (1983) (emphasis added).

Commonwealth v. Reeves, 378 Pa.Super. 29, 39, 548 A.2d 260, 265 (1988) (emphasis in original).

As to issue IV, the trial judge properly found it waived for failure to include it in post-trial motions. Slip Op. at 4; Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Copeland, 381 Pa.Super. 382, 554 A.2d 54 (1989); Pa.R.Crim.P. 1123(a), (c)(3),

Appellant's final argument is trial court error in sentencing him to consecutive terms of imprisonment for conspiracy and possession of an instrument of crime because both are inchoate crimes arising from the same incident. Appellant's claim is erroneous because 18 Pa.C.S. § 906, Multiple convictions of inchoate crimes barred, the basis of his argument, as amended and effective prior to appellant's trial, provides otherwise. Prior to December 11, 1986, section 906 read as follows:

§ 906. Multiple convictions barred

A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.

Sixty days thereafter, however, on February 9, 1987, the new statute became effective. The amended statute specifically lists the inchoate crimes of which multiple convictions are prohibited.

§ 906. Multiple convictions of inchoate crimes barred

A person may not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or to culminate in the commission of the same crime.

Because section 906 now only prohibits multiple convictions of the inchoate crimes of criminal attempt, section 901, criminal solicitation, section 902, and criminal conspiracy, section 903, and does not include possessing instruments of crime, section 907, appellant's...