Com. v. Johnson

• Decision Date: 04 June 1999
• Citation: 734 A.2d 864
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joseph JOHNSON, Appellant.
• Court: Pennsylvania Superior Court

734 A.2d 864

COMMONWEALTH of Pennsylvania, Appellee v. Joseph JOHNSON, Appellant.

Superior Court of Pennsylvania.

Argued April 14, 1999.

Filed June 4, 1999.

Mark Scott-Sedley, Public Defender, Philadelphia, for appellant.

Thomas Dolgenos, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, JOHNSON and TAMILIA, JJ.

TAMILIA, J.:

¶ 1 Appellant, Joseph Johnson, appeals from his February 27, 1998, judgment of sentence of three and one-half (3½) to ten (10) years' imprisonment imposed following his convictions of possession of a controlled substance and possession with intent to deliver.

¶ 2 The facts presented at appellant's jury trial established that on October 10, 1996, at approximately 11:25 a.m., Philadelphia Police Officer Christopher Foley observed appellant engage in a brief conversation with another male on a Philadelphia street corner. The male handed money to appellant and appellant reached into a plastic bag and retrieved small objects, which he handed to the man. Officer Foley, who was standing approximately six feet away, believed that he had just witnessed a drug transaction. Foley testified that, in his seven-year career, he had previously seen narcotics dealt out of the type of plastic bag used by appellant, he had personally made approximately 40 drug arrests in the area in question and the area was known to the police as a high drug sale area. Based on this knowledge and what he had seen, Foley, who was in plain clothes, approached appellant and identified himself as a police officer. Appellant clutched the plastic bag and ran. Foley and his partner gave chase and observed appellant discard the plastic bag into a pile of debris. Appellant was quickly apprehended and the bag was found to contain fourteen heat-sealed packets of a substance later identified as heroin.

¶ 3 Prior to trial, appellant was released on his own recognizance, but with electronic monitoring. He also signed a subpoena ordering him to be present for trial on June 16, 1997. Sometime in April, however, appellant cut the monitoring bracelet from his ankle and failed to meet with his probation officer. When he failed to appear for trial, a bench warrant was issued and a search of area hospitals, custodial facilities and the home of his girlfriend failed to locate appellant. A subsequent bench warrant and attempts to locate appellant through voter registration and social security lists were also unsuccessful. On July 22, 1997, the court heard testimony from a probation officer that appellant had removed his ankle bracelet and that he could not be located. The court also heard testimony from a quarter sessions clerk regarding appellant's failures to appear for trial. Based on this testimony, the trial court determined to conduct appellant's trial in absentia. A jury was impaneled, testimony was taken and appellant was convicted.

¶ 4 On February 27, 1998, appellant appeared for sentencing. He said he had failed to appear for trial because he was on drugs and "really didn't think it was appropriate to come in." (N.T., 2/27/98, at 9.) After reviewing appellant's extensive criminal record, including fourteen arrests and nine convictions, and his repeated parole or probation violations, the court imposed sentence on the drug convictions. Finding that appellant "has no respect for legally constituted authority," the court also imposed a consecutive sentence of ninety (90) days for contempt based on appellant's failure to appear for trial (N.T. at 11).

¶ 5 On appeal, appellant presents two claims. First, in lengthy principal and reply briefs, he argues the trial court's decision to try him in absentia violated his state and federal constitutional rights to be present at his own trial. In particular, appellant asserts his rights were violated "where it was not shown that he knew or should have known that his trial could proceed in his absence, and where there was no compelling reason for proceeding to trial without him." (Appellant's brief at 8.) The propriety of trials in absentia was considered by our Supreme Court in the 1992 case of Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992). Because we find Sullens controls our determination of this case, a detailed review of the Supreme Court's holding is necessary. In Sullens, like the instant case, a criminal defendant was notified of his trial date but failed to appear. The trial court decided to try Sullens in absentia based on the conclusion that his absence on the scheduled date was "without cause" within the meaning of Pa.R.Crim.P. 1117, Presence of the Defendant, which provides in pertinent part:

(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.

Sullens was convicted in absentia. When he appeared at sentencing, he explained that he had not appeared for trial because he did not want to be found guilty. The trial court rejected Sullens' explanation and proceeded with sentencing.

¶ 6 On appeal, this Court reversed the conviction on the basis that Sullens should not have been tried in absentia. Specifically, we found that "an accused may not waive his [constitutional] right to be present at trial by failing to appear on the date scheduled for trial[.]" Id. at 101-02, 619 A.2d at 1350, citing Commonwealth v. Sullens, 407 Pa.Super. 650, 584 A.2d 1050 (1990) (unpublished Memorandum). Our conclusion was based on Commonwealth v. Felton, 224 Pa.Super. 398, 307 A.2d 51 (1973), which held the unauthorized absence of an accused after trial has commenced will not prevent the trial from continuing, but if the accused fails to appear for the commencement of trial, the trial may not begin in his absence. Following our reversal of Sullens' judgment of sentence, the Supreme Court granted allocatur and reversed. Writing for a four-to-two majority, Justice Flaherty began by noting that, although an accused has an absolute constitutional right to be present at trial, this right may be waived either expressly or implicitly by the accused's actions. This principle of waiver, the Court found, was embodied in Pa. R.Crim.P. 1117(a). Expressly rejecting the Felton distinction between absence before trial and absence during trial, the Supreme Court held "that when a defendant is absent without cause at the time his trial is scheduled to begin, he may be tried in absentia, as Pa.R.Crim.P. 1117(a) contemplates." Id. at 104, 619 A.2d at 1350. The Court reasoned:

A contrary rule ... would be a travesty of justice. It would allow an accused at large upon bail to immobilize the commencement of a criminal trial and frustrate an already overtaxed judicial system until the trial date meets, if ever, with his pleasure and convenience. It would permit a defendant to play cat and mouse with the prosecution to delay the trial in an effort to discourage the appearance of prosecution witnesses.... A defendant has a right to his day in court, but he does not have the right unilaterally to select the day and hour.

Id., quoting Government of Virgin Islands v. Brown, 507 F.2d 186, 189-90 (3d Cir., 1975).

¶ 7 There can be no question that Sullens compels the conclusion in this case that appellant was properly tried in absentia. As in Sullens, the record in the instant case indicates clearly that appellant knew of his trial date and willfully failed to appear. Id. ("Although appellee characterizes the colloquy as reflecting `considerable' doubt that he had received notice of trial, the record establishes that there was very little doubt indeed."). Appellant admitted as much at sentencing when he stated that he failed to "come in" for trial because he was on drugs and "didn't really think it was appropriate." Contrary to appellant's suggestion, there is no constitutional requirement that he be specifically advised that trial may be conducted in his absence if, knowing of the trial date, he fails to appear. Moreover, trials in absentia are expressly authorized by Pa. R.Crim.P. 1117(a), and the trial court need not, as appellant suggests, make and express a specific finding "of a compelling reason for proceeding to trial without him." Concern for the administration of justice, as emphasized by the Sullens court, is reason enough for the procedure sanctioned by Rule 1117(a).

¶ 8 Recognizing the difficulty that Sullens poses for his argument, appellant asserts that, for various reasons, we should not follow the Supreme Court's clear holding therein. First, he argues Sullens "analyzed the permissibility of trials in absentia under [Rule] 1117; conspicuously, the Court did not address constitutional limitations." (Appellant's brief at 19.) The clear implication of this claim is that the Supreme Court construed Rule 1117 in an unconstitutional manner. However, a review of Sullens indicates that, contrary to appellant's claim, the Supreme Court did in fact consider "constitutional limitations." The Court began its analysis by noting that the constitutional right to be present at trial may be waived either expressly or implicitly. Indeed, the Court held this constitutional principle was embodied in Rule 1117(a). Far from excluding constitutional considerations, the Supreme Court's holding emphasized that the rule merely codified the fundamental principle that the constitutional right to be present at trial may be waived in certain circumstances. Indeed, the cases cited by the Court as common law enunciations of the rule involved both the federal and state constitutions. Id. at 102, 619 A.2d at 1350, citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (right to be present at trial under Sixth Amendment of United States Constitution may be waived); and Commonwealth v. Diehl, 378...