Com. v. Hill

Decision Date15 July 1999
Citation737 A.2d 255
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Tarquezze HILL a/k/a Rarquezze Hill, Appellant (at 4013). Commonwealth of Pennsylvania, Appellee, v. Rarquezze Hill a/k/a Tarquezze Hill, Appellant (at 4014).
CourtPennsylvania Superior Court

John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Peter J. Garnder, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before FORD ELLIOTT, J., SCHILLER, J., and CERCONE, President Judge Emeritus.

SCHILLER, J.:

¶ 1 Appellant, Tarquezze (a/k/a Rarquezze) Hill, appeals the judgment of sentence entered on September 12, 1997, in the Court of Common Pleas of Philadelphia County following two separate trials in absentia. Under the facts of this case, we find that the trial court properly exercised its discretion to try Appellant in absentia due to his absence without cause, and that such trials did not violate Appellant's right to confront his accusers under the Pennsylvania Constitution. We therefore affirm.

FACTS:

¶ 2 The charges against Appellant arose out of two drug transactions. The first occurred on June 22, 1995, and Appellant was arrested that same day (C.P.# XXXX-XXXX).1 He was subsequently released on bail, and signed a subpoena ordering him to appear for trial on February 19, 1997. Upon his release, Appellant was arrested for another drug transaction that occurred on August 30, 1995 (C.P.# XXXX-XXXX).2 Although the record is unclear as to Appellant's entire pre-trial detention status following the second offense, it is certain that, on January 6, 1997, Appellant was released on bail with the condition that he cooperate with the electronic monitoring/house arrest program of the pretrial services division. On January 17, 1997, Appellant signed another subpoena ordering him to appear for trial on February 19, 1997.

¶ 3 Despite signing two subpoenas, Appellant failed to appear on February 19, 1997. The court granted two continuances while the Commonwealth made several attempts to locate Appellant. On the second relisted trial date, February 26, 1997, trial commenced on Appellant's second case (C.P.# XXXX-XXXX) in his absence. Following a two-day jury trial, Appellant was convicted of Possession with Intent to Deliver a Controlled Substance3 and Possession of a Controlled Substance4 on February 27, 1997. On that same date, trial commenced on Appellant's first case (C.P.# XXXX-XXXX) before a different jury, again in his absence. Upon the completion of the Commonwealth's case, court adjourned until March 3, 1997. On that date, counsel for both parties presented closing arguments, and Appellant was convicted of Possession with Intent to Deliver a Controlled Substance and Possession of a Controlled Substance.5 Sentencing on both cases was deferred until April 17, 1997. ¶ 4 Appellant failed to appear on April 17, 1997, and sentencing was deferred until July 10, 1997. On July 10, 1997, Appellant again failed to appear, and the court continued the proceeding to September 12, 1997. On September 12, 1997, Appellant was sentenced in absentia on both cases to consecutive terms of not less than two (2) nor more than ten (10) years' imprisonment. Appellant was eventually apprehended and committed to prison on October 6, 1997.6 This timely appeal followed.

DISCUSSION:

¶ 5 Appellant raises the following issue for our review:

Did not the trial court err in finding waiver of the right to be present, and abuse its discretion by trying appellant in absentia, where appellant was not present at the commencement of trial and where the Commonwealth would not have been prejudiced by a continuance?

Appellant's Brief, at 3. Specifically, Appellant claims that the trial court abused its discretion by trying him in absentia, and that the trials in absentia violated his right to confront the witnesses against him, as provided by Article I, Section 9 of the Pennsylvania Constitution.7

¶ 6 We will first address the claim, which was explicitly raised in Appellant's statement of questions presented, that the trial court abused its discretion by trying him in absentia pursuant to Pennsylvania Rule of Criminal Procedure 1117(a). Under the Sixth Amendment to the United States Constitution8 and Article I, Section 9 of the Pennsylvania Constitution,9 an accused has the right to be present in court at every stage of a criminal trial. Commonwealth v. Bond, 693 A.2d 220 (Pa.Super.1997). However, this right may be waived in non-capital cases either expressly or implicitly by a defendant's actions. Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992). This waiver principle is embodied in Pennsylvania Rule of Criminal Procedure 1117(a), which provides:

(a) The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict.

Pa.R.Crim.P. 1117(a) (emphasis added).

¶ 7 Where the Commonwealth has demonstrated by a preponderance of the evidence that the defendant is absent "without cause" and that he knowingly and intelligently waived his right to be present, he may be tried in absentia. Pa. R.Crim.P. 1117(a); Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980). However, when a defendant is unaware of the charges against him, unaware of the establishment of his trial date or is absent involuntarily, he is not absent "without cause" and therefore cannot be tried in absentia. Commonwealth v. Bond, supra at 223 (citing Commonwealth v. Sullens, supra).

¶ 8 In United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972), the Court of Appeals for the Second Circuit set forth a list of factors the trial court must balance before exercising its discretion to proceed with trial in the defendant's absence:

[T]he likelihood that the trial could soon take place with the defendant present; the difficulty of rescheduling, particularly in multiple-defendant trials; the burden on the Government in having to undertake two trials,....

Id. at 1210. Our Supreme Court adopted the Tortora test in Commonwealth v. Wilson, 551 Pa. 593, 712 A.2d 735 (1998), but emphasized that the list of factors was not exhaustive.10 Moreover, Wilson held that the trial court is not required to postpone the trial in order to weigh such factors. Commonwealth v. Wilson, 712 A.2d at 739.

¶ 9 A complete review of the record reveals that Appellant was fully aware of the charges against him and of his original trial date. In fact, he signed two subpoenas ordering his appearance on February 19, 1997. When he failed to appear on that date, the court allowed two continuances. However, Appellant also failed to appear on the relisted trial dates. Appellant was on bail at the time and, therefore, had an obligation to stand trial and submit to sentencing if found guilty. See id. at 738. To date, he has failed to offer any explanation for his continued absences.

¶ 10 The record also reveals that the Commonwealth was unable to locate Appellant after numerous attempts to do so. A court representative for pretrial house arrest, Vittoria Dean, testified that at the time of his release in January of 1997, Appellant was told to report to her at least twice a week and after any court date. However, Appellant failed to report. Ms. Dean made several efforts to contact Appellant at his release address and other addresses. She also had investigators from the warrant unit look for him at several locations. Approximately ten to twelve attempts were made prior to the conclusion of Appellant's second trial, between February 6, 1997 and February 28, 1997, by pretrial services. N.T., 2/28/97, at 1.99-1.102. Moreover, Detective Christopher Marano testified at Appellant's first trial that the police had searched, among other places, local area hospitals, custodial facilities, Appellant's last known address, an area around 52nd and Market Streets that he was known to frequent, the United States Postal Service, the morgue, as well as Philadelphia probation. N.T., 2/28/97, at 2.27-2.30. Despite the diligent efforts of police and pretrial services, Appellant could not be located. Under such circumstances, the trial court did not abuse its discretion by finding Appellant absent without cause and proceeding to try him in absentia pursuant to Pa.R.Crim.P. 1117(a). ¶ 11 However, Appellant contends that even if his absence was "without cause", it cannot be construed as an effective waiver or "an intentional relinquishment of a known right" under Article I, Section 9 of the Pennsylvania Constitution because he was absent prior to the commencement of trial and was never informed that the trial could proceed in his absence.11

¶ 12 Appellant first specifically argues that our state confrontation clause has been interpreted more expansively than its federal counterpart and, as such, the trial court must notify a defendant that trial may proceed in his absence in order for the defendant to effectively waive his state constitutional right. In support of this contention, Appellant relies on cases involving the use of closed circuit television testimony of an alleged child witness/victim of sexual abuse.

¶ 13 This Court has previously held that an accused may waive his right to be present at trial under Rule 1117(a) without such notification, consistent with the federal and state constitutions. See Commonwealth v. Johnson, 734 A.2d 864, 1999 Pa.Super. Lexis 1347 (Pa.Super. 1999)

(citing Commonwealth v. Sullens, supra and Commonwealth v. King, 695 A.2d 412 (Pa.Super.1997)). Moreover, we find the cases relied upon by Appellant entirely irrelevant to the case sub judice, and decline to interpret the state constitution as requiring more protection for an accused with...

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  • Com. v. Williams
    • United States
    • Pennsylvania Superior Court
    • 29 Octubre 2008
    ...631 (1987). A co-extensive constitutional right exists under Article I, § 9 of the Pennsylvania Constitution. Commonwealth v. Hill, 737 A.2d 255, 258 (Pa.Super.1999); Commonwealth v. Carter, 219 Pa.Super. 280, 281 A.2d 75, 80 (1971) (adopting the Snyder "fullness of the opportunity" test). ......
  • State v. Kaulia
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    • 4 Enero 2013
    ...involving “a defendant who is present in court to expressly waive his right to remain for the proceedings ....” Commonwealth v. Hill, 737 A.2d 255, 262 n. 15 (Pa.Super.1999). The South Dakota Supreme Court found that the defendant's express waiver of his right to be present at trial was kno......
  • State v. Kaulia, SCWC-11-0000089
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    • Hawaii Supreme Court
    • 4 Enero 2013
    ..."a defendant who is present in court to expressly waive his right to remain for the proceedings . . . ." Commonwealth v. Hill, 737 A.2d 255, 262 n.15 (Pa. Super. 1999). The South Dakota Supreme Court found that the defendant's express waiver of his right to be present at trial was knowing a......
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    • 4 Enero 2013
    ...involving "a defendant who is present in court to expressly waive his right to remain for the proceedings . . . ." Commonwealth v. Hill, 737 A.2d 255, 262 n.15 (Pa. Super. 1999). The South Dakota Supreme Court found that the defendant's express waiver of his right to be present at trial was......
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