Com. v. Ford

• Decision Date: 16 June 1998
• Citation: 715 A.2d 1141
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Aaron FORD, Appellant.
• Court: Pennsylvania Superior Court

Page 1141

715 A.2d 1141

COMMONWEALTH of Pennsylvania, Appellee, v. Aaron FORD, Appellant.

Superior Court of Pennsylvania.

Submitted March 31, 1998.

Filed June 16, 1998.

James K. Reed, Chambersburg, for appellant.

Angela R. Krom, Assistant District Attorney, Chambersburg, for the Commonwealth, appellee.

Before JOHNSON, STEVENS and OLSZEWSKI, JJ.

OLSZEWSKI, Judge.

Aaron Ford (appellant) appeals from his judgment of sentence entered by the Franklin County Court of Common Pleas following a jury trial. After being tried in absentia and without representation of counsel, appellant was convicted of five counts of unlawful delivery of a controlled substance and sentenced to 15 1/2 to 33 years incarceration. Appellant claims the trial court erred by allowing his counsel to withdraw three days before trial, by trying him in absentia, and by imposing an excessive sentence. Because we find appellant did not validly waive his right to counsel, we vacate the judgment of sentence and remand for a new trial.

Appellant was charged with five counts of unlawful delivery of a controlled substance. In May of 1996, the trial court appointed counsel for appellant. This attorney initiated discovery and filed an omnibus pre-trial motion. At the hearing on this motion, appellant requested a continuance in order to secure private counsel. The court subsequently approved the withdrawal of court-appointed counsel, and Attorney Gregory Abeln entered his appearance on behalf of appellant. Attorney Abeln filed a supplemental omnibus pre-trial motion, which was denied. In February of 1997, approximately two weeks before jury selection began, appellant violated his probation in a prior unrelated case. Appellant then fled the jurisdiction and a warrant was issued for his arrest.

Meanwhile, appellant failed to appear for jury selection on March 10, 1997, at which time Attorney Abeln filed a motion to withdraw. Mr. Abeln stated that $3,500.00 of his $7,500.00 fee remained outstanding and that appellant's absence hindered trial preparation. The trial court granted Attorney Abeln's motion and on March 13, 1997, proceeded to try appellant in absentia and without counsel. Appellant was found guilty on all five counts and sentenced to an aggregate term of 15 1/2 to 33 years incarceration on April 16, 1997. At his sentencing hearing, appellant was again in custody and declined representation at that hearing. Proceeding pro se, appellant filed timely post-trial motions, which were denied. Counsel was subsequently appointed for appellant and this appeal followed.

We must decide whether appellant's due process rights were violated when he was tried in absentia without attorney representation. We conclude that they were. ¹ It is well established that in Pennsylvania when a defendant fails to appear for trial without cause, he or she may be tried in absentia. See Pa.R.Crim.P. 1117(a); Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992). To try a defendant without counsel, however, is a completely different matter. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel is fundamental and essential to a fair trial).

"It is well settled that a criminal defendant has the right to be represented by counsel at trial." Commonwealth v. Grant, 229 Pa.Super. 419, 423, 323 A.2d 354, 356 (1974) (citing Gideon v. Wainwright, supra ). This right may be waived. Id. Before waiver is found, however, the "trial court is required to make a searching and formal on-the-record inquiry to ascertain '(1) whether the defendant is aware of his right to counsel or not and (2) whether the defendant is aware of the consequences of waiving that right or not.' " Commonwealth v. Carothers, 450 Pa.Super. 208, 215, 675 A.2d 734, 737 (1996) (quoting Commonwealth v. Starr, 541 Pa. 564, 579, 664 A.2d 1326, 1334 (1995)); see also Commonwealth v. Smith, 426 Pa.Super. 144, 148-50, 626 A.2d 614, 617 (1993). "The question of waiver must be determined regardless of whether the accused can or cannot afford to engage counsel." Grant, 229 Pa.Super. at 424, 323 A.2d at 357. Furthermore,

[t]he presumption must always be against the waiver of a constitutional right. Nor can waiver be presumed where the record is silent. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. Thus, this Court is constitutionally bound to place the burden of proving waiver on the Commonwealth.

Carothers, 450 Pa.Super. at 215-16, 675 A.2d at 738 (quoting Commonwealth v. Monica, 528 Pa. 266, 272-74, 597 A.2d 600, 603 (1991)).

In the case at bar, the record reflects no inquiry into whether appellant was aware of his rights or whether he knowingly waived them. Certainly, there was no probing inquiry as required by Carothers. Such an inquiry is quite obviously impossible when a defendant fails to present himself before the court. Failure to appear, however, is not tantamount to a knowing waiver. In the past, courts of this Commonwealth have treated fugitive status as waiver of appellate rights, and also as grounds for dismissing a pending appeal. See, e.g., Commonwealth v. Craddock, 370 Pa.Super. 139, 535 A.2d 1189 (1988), aff'd per curiam, 522 Pa. 491, 564 A.2d 151 (1989) ("The general rule is that in a criminal case, voluntary fugitive status disentitles a defendant to call upon the resources of the court for the disposition of a defendant's legal claims."); Commonwealth v. Huff, 540 Pa. 535, 536-38, 658 A.2d 1340, 1341 (1995) ("It is well settled that, when an individual files an appeal and then becomes a fugitive from justice, it is permissible for the appellate court to quash the appeal."). Our Supreme Court, however, soundly rejected this practice in Commonwealth v. Deemer, 550 Pa. 290, 705 A.2d 827 (1997).

Returned fugitives should be punished, if appropriate, for violations of court orders or statutes which compel their presence in court, but they should not be punished additionally by forfeiture of their appellate rights. On the other hand, a returned fugitive should not benefit from his fugitive status. Courts should not take extraordinary measures, such as granting motions to reinstate post trial motions or requests to appeal nunc pro tunc, in order to accommodate fugitives who have now returned and wish to pursue post-trial measures.

Rather, a fugitive who has returned to the jurisdiction of the court should be allowed to exercise his post-trial rights in the same manner he would have done had he not become fugitive.... If he returns after the time for filing an appeal has elapsed, his request to file an appeal should be denied. If he becomes a fugitive after an appeal has been filed, his appeal should be decided and any fugitive status should be addressed separately. In short, a fugitive who returns to court should be allowed to take the system of criminal justice as he finds it upon his return: if time for filing has elapsed, he may not file; if he has not, he may.

Id. Hence, fugitive status is not a per se waiver nor may it be punished by the negation of constitutional rights. Fugitive status is instead a separate wrong with its own consequences.

Indeed, the consequences of fugitive status in this Commonwealth are substantial. First, an escapee could be subject to escape charges. See 18 Pa.C.S. § 5121. Second, the jury can consider flight indicative of a defendant's consciousness of guilt. See Commonwealth v. Jorden, 333 Pa.Super. 291, 302-04, 482 A.2d 573, 579 (1984) (citations omitted). Third, if cause is not shown, an escapee gives up the right to be present at trial and may be tried in absentia. Sullens supra. Finally, bail proffered by an escapee is forfeited. See 42 Pa.C.S.A. § 9139. An inquisitional trial without counsel, however, is not a permissible punishment for fugitive status.

We now consider whether the trial court properly granted Attorney Abeln's motion to withdraw. There is no bright line rule governing when a trial court abuses its discretion in ruling on a petition to withdraw as counsel. See Commonwealth v. Sweeney, 368 Pa.Super. 33, 47-48, 533 A.2d 473, 481 (1987). Rather, a court must weigh the interests of the client in a fair adjudication, the interests of the Commonwealth in efficient administration of justice, and the interests of the attorney seeking withdrawal. See id. Therefore, "resolution of the problem turns upon a case by case analysis with particular attention to the reasons given by the trial court at the time the request for withdrawal is denied." Id. We find that, in this case, the trial court erred in granting appellant's attorney's motion to withdraw without appointing new counsel.

It is certainly true that counsel may seek to withdraw from representation for a variety of reasons, from ethical to financial. See Commonwealth v. Keys, 397 Pa.Super. 453, 455-57, 580 A.2d 386, 387 (1990). This is not to say, however, that every time withdrawal is permissible from the attorney's perspective that the Court must allow it. As indicated by the Sweeney standard, the interests of the Commonwealth and the client must be considered before withdrawal is proper. Instantly, several factors weigh against permitting withdrawal.

Pa.R.Crim.P. 302(b), provides in relevant part,

(b) Counsel for a defendant may not withdraw his or her appearance except by leave of court. Such leave shall be granted only upon motion made and served on the attorney for the Commonwealth and the client, unless the interests of justice otherwise require.

Pa.R.C.Pr. 302 (emphasis added). The record reveals no indication that appellant was ever served notice of his attorney's intention to withdraw. Such notification is not merely courtesy. It is critical and necessary before an attorney is permitted to withdraw his or her representation. Cf. Commonwealth v. Worthy, 301 Pa.Super. 46, 48-50, 446 A.2d 1327,...