Com. v. Jones

Decision Date19 May 1992
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Tyrone JONES, Appellant.
CourtPennsylvania Supreme Court

John W. Packel, Chief, Appeals Div., Leonard N. Sosnov, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., George S. Leone, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

LARSEN, Justice.

Appellant Tyrone Jones appeals from the judgment of the Superior Court en banc, which quashed the appeal of his conviction for robbery and criminal conspiracy. 388 Pa.Super. 22, 564 A.2d 983 (1989). The court concluded that appellant forfeited his right to appellate review because he was a fugitive during the appellate process. We affirm.

The relevant facts are as follows. On January 27, 1984, appellant was arrested in Philadelphia on charges stemming from the mugging of James Watson. Jury selection began on Friday, February 1, 1985. Appellant, who was free on bail, failed to appear in court on Monday, February 4, 1985, after the weekend recess. The trial court issued a bench warrant for appellant's arrest and continued with jury selection and the ensuing trial in his absence, pursuant to Pa.R.Crim.P. 1117(a). 1

On February 6, 1985, the jury found appellant guilty of robbery and criminal conspiracy. In appellant's absence, defense counsel timely filed post-verdict motions, which the trial court denied on the merits. On June 10, 1985, the trial court sentenced appellant in absentia to a prison term of three to eight years on the robbery conviction and a consecutive sentence of one to two years on the conspiracy conviction. The trial court denied the subsequent petition for reconsideration of sentence filed on appellant's behalf, and defense counsel timely filed a notice of appeal to the Superior Court on June 20, 1985. While his appeal was pending, appellant was arrested as a fugitive in Maryland on February 2, 1987--two years after his escape.

On appeal, a panel of the Superior Court granted appellant, who had by this time been in custody for over a year and a half, a new trial. The Commonwealth timely filed a petition for reargument, which was granted. The en banc panel of the Superior Court sua sponte quashed appellant's appeal because of his flight from justice during jury selection in February of 1985. The sole issue presented for our review is whether appellant forfeited his right to appellate review by having been a fugitive from justice. 2

The right to appeal is guaranteed by our state constitution. 3 However, "the right to appeal is conditioned upon compliance with the procedures established by this Court, and 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." Commonwealth v. Passaro, 504 Pa. 611, 614, 476 A.2d 346, 348 (1984); Commonwealth v. Coleman, 458 Pa. 324, 327 A.2d 77 (1974); Commonwealth v. Wallace, 427 Pa. 110, 233 A.2d 218 (1967).

The dismissal of an appeal, where a defendant deliberately bypasses the judicial process by means of escape, is one such consequence. "Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law." Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377, 380 (1975). The United States Supreme Court has held that escape "disentitles the defendant to call upon the resources of the Court for determination of his claims." Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). Likewise, this Court has held that a defendant who escapes from custody forfeits his right to appellate review. E.g., Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984); Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988) (per curiam); Commonwealth v. Craddock, 522 Pa. 491, 564 A.2d 151 (1989) (per curiam). A court may dispose of such an appeal by dismissal upon motion of any party, 4 or it may act sua sponte. 5

In Passaro, the defendant escaped while his appeal was pending. Consequently, the Commonwealth filed a motion to quash the appeal, which the Superior Court granted. The defendant was subsequently returned to custody. He filed a petition to reinstate his appeal, which the Superior Court denied, and then filed a similar petition in this Court.

We denied the defendant's petition to reinstate his appeal, stating:

... 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. 520 Pa. at 615, 476 A.2d at 349.

In subsequent cases, we have repeatedly held that a defendant who chooses to bypass proper judicial procedures by fleeing from justice forfeits his appellate rights. In Luckenbaugh, the defendant escaped while his petition for reconsideration of sentence was pending. The trial court sua sponte dismissed his petition for reconsideration because of his fugitive status, and defense counsel filed a notice of appeal on behalf of the defendant. The Superior Court held that the defendant had not forfeited his appellate rights and addressed the merits of his appeal. On appeal, this Court reversed on the basis of Passaro. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (per curiam). Similarly, in Craddock, we upheld the Superior Court's application of Passaro where the defendant escaped during jury deliberations and was sentenced in absentia.

A defendant's voluntary escape acts as a per se forfeiture of his right of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant's capture or voluntary return to custody. Thus, by choosing to flee from justice, appellant forever forfeited his right to appeal.

Accordingly, we affirm the judgment of the Superior Court en banc quashing appellant's appeal.

McDERMOTT, Justice, joins this opinion and files a concurring opinion.

NIX, C.J., concurs in the result.

CAPPY, J., files a dissenting opinion joined by ZAPPALA, J.

McDERMOTT, Justice, concurring.

I join in the opinion of the Majority but feel compelled to offer the following comments.

The dissenting opinion of Mr. Justice Cappy is a lachrymose call to give the appellant what was not denied. He was not denied a fair trial, his presence at his trial and sentence, or his right to appeal. Rather Mr. Justice Cappy insists on his "American" right to absent himself from his trial and hold it when he is caught and only then, "even if it is 25 years later."

No society on earth offers more than we do to preserve and protect the rights of those held for trial. It is more than simple discourtesy not to attend. It is an anarchical contempt of everything that so many have died to preserve. The thinking behind the scenario offered of "Jurors threatened with bodily harm--at gunpoint!!! to render a guilty verdict" has an unworldly tinge. If such thinking is prologue to what can be expected, we should all escape before it's too late.

CAPPY, Justice, dissenting.

Today the majority creates a system of justice unprecedented in this country, a system wherein a defendant may be unfairly tried and sentenced in absentia, with no right of appeal under any circumstances. I must vigorously dissent. Justice requires the assurance of a fair trial, an assurance secured by the guarantee of appellate review. I cannot countenance a system of jurisprudence that endorses trial and sentence in absentia beyond the reach of appellate review.

In no case involving the dismissal of a fugitive's appeal do we find facts such as those present at bar. It is intolerable as a matter of due process to permit a defendant to be tried, sentenced, and jailed without any right to appellate review, merely as additional punishment for the fact that he or she absconded during the course of the proceedings.

The facts are undisputed. Tyrone Jones voluntarily absented himself during jury selection in his trial. Over the objection of defense counsel, and in Jones' absence, the trial court nonetheless proceeded with trial and eventually accepted the jury's verdict of guilty of robbery and criminal conspiracy. Subsequently, the trial court imposed sentence upon Tyrone Jones in absentia.

The majority would have us gloss over these important facts and focus only upon the fact that Tyrone Jones "voluntarily" absented himself from the above-referenced proceedings. Concentrating all attention upon Jones' actions, the majority ignores the equally objectionable conduct of the trial court in its decision to proceed in Jones' absence. Given the trial court's actions, this case cannot blithely be disposed of, as the majority suggests, by reference to the decision in Commonwealth v Passaro, 504 Pa. 611, 476 A.2d 346 (1984). As I will demonstrate, there are two important questions which must be addressed before turning to the applicability of Passaro to the facts of the instant case.

Review in this case must begin with the trial court's decision to proceed to trial in Jones' absence. Pa.R.Crim.P. 1117(a) expressly permits a court to continue with a trial in the defendant's absence, up to and including return of the verdict. However, Rule 1117(a) does not require trial in absentia; whether to proceed in this fashion is a matter that is lodged within the reasonable discretion of the trial judge. 1 It is clear that in this case the trial court abused its discretion in proceeding with the trial in absentia.

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