Com. v. Jones

• Court: Pennsylvania Superior Court
• Writing for the Court: Before CIRILLO; ROWLEY; BROSKY; BROSKY
• Citation: Com. v. Jones, 564 A.2d 983, 388 Pa.Super. 22 (Pa. Super. Ct. 1989)
• Decision Date: 02 October 1989
• Parties: COMMONWEALTH of Pennsylvania v. Tyrone JONES, Appellant. 1616 PHILA. 1985

Page 983

564 A.2d 983

388 Pa.Super. 22

COMMONWEALTH of Pennsylvania v. Tyrone JONES, Appellant.

1616 PHILA. 1985

Superior Court of Pennsylvania.

Argued June 5, 1989.

Filed Oct. 2, 1989.

Leonard N. Sosnov, Asst. Public Defender, Philadelphia, for appellant.

Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and BROSKY, ROWLEY, McEWEN, OLSZEWSKI, TAMILIA, POPOVICH, JOHNSON and MELINSON, JJ.

ROWLEY, Judge:

This is an appeal by Tyrone Jones from the judgment of sentence following his conviction in absentia for robbery as a felony of the second degree ¹ and criminal conspiracy. ² Appellant presents seven issues for our review and asks that his conviction and sentence be reversed and his case be remanded for a new trial or, in the alternative, that his sentence be vacated and his case remanded for resentencing. However, we find that appellant has forfeited his right to appellate review because he was a fugitive. We are, therefore, unable to address the merits of the issues he raises and must quash his appeal.

A brief recitation of the procedural history is in order as background to our discussion of the applicable principle of law. Appellant was arrested on January 27, 1984, in Philadelphia, and charged with the mugging of Mr. James Watson, from whom it was alleged the appellant had taken two hundred and sixty-seven dollars, all but seven of which was in brand new currency. Soon after his arrest, and while he was confined alone in a police van in the yard of a nearby police station, the appellant was identified by Mr. Watson as the assailant. Appellant's request for an identification lineup prior to his preliminary hearing was denied on February 2, 1984. His preliminary hearing was held that same day, and Mr. Watson again identified the appellant as his attacker. Appellant then moved to suppress any testimony regarding the confiscation or condition of four ten-dollar bills which he was carrying when he was arrested, as well as the police yard one-on-one confrontation and the preliminary hearing identifications. His suppression motion was denied on January 31, 1985. Appellant also filed a motion in limine to suppress any testimony about the currency found in his possession. This motion was denied on February 1, 1985.

Selection of the jury for appellant's trial was started, but not completed, on February 1, 1985, a Friday. Appellant, who was free on bail was present throughout Friday's proceedings. When appellant's trial resumed on Monday, February 4, 1985, however, appellant was absent. A bench warrant for his arrest was issued that day. Appellant was not immediately apprehended and the trial court, pursuant to Pa.R.Crim.P. 1117(a), continued with the trial. Appellant was tried and convicted in absentia. ³ Timely post-verdict motions were filed by appellant's counsel. The trial court denied the motions. Appellant, still not having been apprehended, was sentenced on June 10, 1985, in absentia. A motion to modify sentence was filed by appellant's counsel and denied by the trial court. This timely direct appeal was taken and is now before us for decision. Appellant has been represented throughout these proceedings by counsel who has vigorously asserted appellant's rights at every stage of the case.

Appellant now claims that his constitutional, statutory and procedural rights were violated during his trial. ⁴ However, before we can consider the merits of appellant's arguments, we must determine whether he has forfeited his right to appellate review.

The trial court correctly denied appellant's post-trial motions because appellant, at the time, was a fugitive. Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978). The question is whether we have discretion to hear appellant's appeal which was filed while he was a fugitive, now that he has been returned to custody in Pennsylvania and is amenable to any order that may be entered.

In Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975), our Supreme Court permitted an appeal by a criminal defendant who had been a fugitive, but was later recaptured. Galloway had been convicted of murder in the second degree. Post-trial motions, which included a reservation that he be allowed to file additional supplemental reasons after the notes of testimony were transcribed, were timely filed. Before argument was held on the motions, however, Galloway escaped from the Lancaster County Prison and became a fugitive from justice. The Commonwealth petitioned the trial court to dismiss Galloway's post-trial motions and the trial court granted the petition, dismissing Galloway's motions with prejudice. Galloway was later apprehended, and sentenced to a term of ten to twenty years imprisonment. Following sentence, Galloway filed "Additional and Supplemental Motions for a New Trial, Nunc Pro Tunc", which the trial court allowed, by order, to be filed and dismissed them the same day on the basis that Galloway had been a fugitive.

A direct appeal was filed by Galloway to the Supreme Court and the case was listed for argument. When the case was called, the Court was informed that Galloway had again escaped from custody and was once again a fugitive. The district attorney petitioned the Court to dismiss Galloway's appeal with prejudice. The Court took no action on the petition and continued the argument generally until Galloway was returned to custody. Three months later the Court was advised that Galloway had been returned to custody, a new argument date was scheduled, and oral argument was heard on both the merits of Galloway's appeal and the petition to dismiss.

The Supreme Court denied the Commonwealth's petition, to quash the appeal, reasoning that the rationale behind dismissal of an appeal while a convicted defendant is a fugitive from justice rests upon "the inherent discretion of any court to refuse to hear the claim of a litigant who, by escaping, has placed himself beyond the jurisdiction and control of the court, and hence, might not be responsive to the judgment of the court." Id. at 311-312, 333 A.2d at 743. Because Galloway was in custody and no longer a fugitive when the case was actually argued, the Court held, he was subject to the jurisdiction of the Court and would be responsive to any judgment the Court would enter. Accordingly, the Court held that there was no basis upon which to dismiss Galloway's appeal. The Court then remanded the case to the trial court for disposition of Galloway's supplemental post-trial motions, which were filed after his return to custody, on the merits to allow the trial court the first opportunity to correct any errors that may have occurred and to aid in clarifying the issues on appeal.

Following the Supreme Court's decision in Galloway, this court has been consistent in its view that a trial court can dismiss post-verdict motions which are pending and not yet decided when the defendant escapes or absconds from the jurisdiction; and that this Court has the discretion to hear an appeal, properly filed in the convicted defendant's absence, so long as the criminal defendant has returned to the jurisdiction before the appeal is dismissed. See e.g., Commonwealth v. Milligan, 307 Pa.Super. 129, 452 A.2d 1072 (1982); Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981); Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978); Commonwealth v. Borden, 256 Pa.Super. 125, 389 A.2d 633 (1978); Commonwealth v. Boyd, 244 Pa.Super. 98, 366 A.2d 934 (1976); Commonwealth v. Barron, 237 Pa.Super. 369, 352 A.2d 84 (1975).

More recently, however, the Supreme Court has decided two cases, Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988); and Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). Based upon our review of these two decisions, we conclude that Galloway is no longer controlling and that we have no discretion to consider an appeal by a convicted defendant who escapes or absconds from the jurisdiction, regardless of when he returns.

In Passaro, the defendant was retried and convicted following his successful post-conviction challenge to a guilty plea. Passaro was sentenced to a term of five to ten years imprisonment. A timely notice of appeal was filed in the Superior Court and briefs were filed on his behalf. Before argument was scheduled on the appeal, Passaro escaped from prison. Six months later, the Commonwealth filed a motion to quash the appeal, which was granted by the Superior Court. Passaro was subsequently found and returned to Pennsylvania, at which time he filed a petition to reinstate his appeal, which the Superior Court denied. He then filed a similar petition in the Supreme Court.

In denying Passaro's petition, the Supreme Court recognized that the right of appeal is guaranteed by Article 5, Section 9 of the Pennsylvania Constitution, but that the right is conditioned upon compliance with the procedures established by the Court, and that "a defendant who deliberately chooses to bypass the orderly procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences of his decision." Id., 504 Pa. at 614, 476 A.2d at 348. The Court also recognized the rationale for dismissing an appeal of a convicted defendant while he is a fugitive from justice, as explained in Galloway, but then went on to say:

"More fundamentally, however, a defendant's resort to escape constitutes a flagrant and deliberate bypass of the entire judicial process. The escape of a convicted defendant from confinement may properly be considered a rejection of the legitimate means afforded the defendant for challenging his conviction and imprisonment. Thus, by choosing to flee and live as a fugitive, a defendant forfeits the right to have his claims considered."

Id. at 615-616, 476 A.2d at 349 (emphasis supplied). Justice Zappala, in a concurring opinion, characterizes the majority's conclusion as follows "I write...