Com. v. Kindler

• Decision Date: 08 April 1994
• Citation: 536 Pa. 228,639 A.2d 1
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joseph KINDLER, Appellant.
• Court: Pennsylvania Supreme Court

Page 1

639 A.2d 1

536 Pa. 228

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

Supreme Court of Pennsylvania.

Argued Jan. 27, 1993.

Reargued Oct. 18, 1993.

Decided Feb. 9, 1994.

Reargument Denied April 8, 1994.

A. Charles Peruto, Sr., and Burton A. Rose, Philadelphia, for J. Kindler.

Catherine Marshall and George S. Leone, Philadelphia, for the Com.

Robert A. Graci, Harrisburg, for Atty. Gen.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

PAPADAKOS, Justice.

On November 15, 1983, Joseph Kindler (Appellant) was convicted by a jury before the Honorable John A. Geisz of the Court of Common Pleas of Philadelphia County of murder of the first degree, kidnapping and criminal conspiracy. As required by the Sentencing Code, 42 Pa.C.S. § 9711, a sentencing hearing was held, and the same jury determined that two aggravating circumstances existed, i.e., that the victim (22 year old David Bernstein) was a prosecution witness to a felony committed by the defendant and that the victim was killed for the purpose of preventing his testimony against Appellant in a criminal proceeding (42 Pa.C.S. § 9711(d)(5)), and that the defendant committed the killing while in the perpetration of a felony (kidnapping) (42 Pa.C.S. § 9711(d)(6)). The jury did not specifically find that any mitigating circumstances were present, and, as required by the Sentencing Code, 42 Pa.C.S. § 9711(c)(1)(iv), fixed a sentence of death on November 16, 1983.

Post-verdict motions were then filed on Appellant's behalf, but before these motions could be disposed, on September 19, 1984, Appellant escaped from the maximum security block of the Philadelphia Detention Center and became a fugitive from justice. The Commonwealth filed a petition to dismiss the post-verdict motions because of Appellant's status as a fugitive from justice, and Judge Geisz held a hearing on the petition following which he determined that because Appellant had voluntarily removed himself from the jurisdiction of the court, he waived whatever rights he might have had to have his post-verdict motions considered and disposed. The petition was granted and formal sentencing was deferred until such time as Appellant would be returned to Pennsylvania.

Appellant remained at large until April 26, 1985, when he was arrested near St. Adele in the Province of Quebec, Canada, on criminal and immigration charges. On July 3, 1985, the United States requested Appellant's extradition which was granted on January 17, 1986, by the Minister of Justice. Appellant sought to review that decision in the Canadian Courts and, once again, during the review process, Appellant escaped from the Parthenais Prison in Montreal on October 23, 1986, and remained a fugitive for almost two years, until after information on Appellant was broadcast on a television program "America's Most Wanted." Appellant was spotted and arrested in St. John, Province of New Brunswick and returned to custody in September 1988. The Supreme Court of Canada ultimately affirmed the decision of the Minister of Justice (Kindler v. Canada (Minister of Justice) [1991] 2 S.C.R. 779, 8 C.R. (4th) 1, 11-12, 22, 25, 30, 33-35), on September 26, 1991, and Appellant was returned to Philadelphia that day.

Following his return, Appellant was sentenced to death on October 2, 1991, and this direct appeal followed. ¹

At the outset, we must determine whether the trial court's action in dismissing Appellant's post-verdict motions as a response to Appellant's escape from custody and flight while these post-verdict motions were being considered was error. Appellant argues that it was an abuse of discretion to dismiss his post-verdict motions and allegations of ineffective assistance of counsel or not to allow him to have these motions considered once he was recaptured and returned to Pennsylvania. Furthermore, he asks that these motions be considered at this time and that the record in this matter be remanded to the trial court so that it can fulfill its duty to dispose of his post-verdict motions on the merits.

As a general rule, we have concluded that defendants who are fugitives from justice during the appellate process have no right to any appellate review, even though they have been recaptured and returned to the custody of Pennsylvania. Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). This rule is applicable to capital cases, and would normally require that we dismiss the various allegations of ineffective assistance of trial counsel, prosecutorial misconduct, and trial court error that a defendant would normally wish to raise on a direct review of a death sentence.

Here, however, Appellant's fugitive status did not take place during the pendency of an appeal before us. Rather, it took place while the trial court was considering Appellant's post-verdict motions and the question becomes whether the trial court has authority to dismiss such motions as a response to an Appellant's flight. The United States Supreme Court has recently reviewed its own case law which permits its appellate courts to dismiss pending fugitive appeals and has reaffirmed the principle that where there is a connection between a defendant's fugitive status and the appellate process, the sanction of dismissal of the appeal is a reasonable response. Ortega-Rodriguez v. United States, 507 U.S. ----, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993).

This rule, like our counterpart to it, rests in part on a recognition that one who invokes the jurisdiction of a tribunal and then flees has voluntarily waived or disentitled himself to call upon the resources of the Court for a determination of his claims. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586, 587-88 (1970); Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). The Court in Ortega-Rodriguez made it clear that the reasoning of Molinaro is equally applicable in federal district courts and authorizes the district court to fashion an appropriate response to the contemptuous disrespect manifested by flight, to protect its own dignity.

While Ortega-Rodriguez and Molinaro are not binding on us, their logic is persuasive and compel us to conclude that our trial courts, when faced with a defendant in fugitive status, also have every right to fashion an appropriate response which can include the dismissal of pending post-verdict motions. Our review of that action is limited to determining whether the flight has a connection with the court's ability to dispose the defendant's case and whether the sanction imposed in response to the flight is reasonable under the circumstances.

Here, Appellant submitted post-verdict motions for the trial court to consider but rather than allowing the judicial process to take its course Appellant chose to escape and flee. Appellant's voluntary absence at this stage of the proceedings invites a response of dismissal, firstly, to allow the court to move on to the cases of others whose whereabouts are known and who are in a position to appeal from the court's order disposing of their case and, secondly, as a means of allowing the trial court to defend its own dignity, by sanctioning an act of defiance that occurred solely within its domain.

The connection to the trial court process is real because Appellant's conduct demonstrated absolute disrespect for the legal process and for the authority of the court and we conclude that the action taken in dismissing the post-verdict motions was a reasonable response to Appellant's "flouting" of the authority of the court and is, therefore, affirmed.

Accordingly, we cannot permit Appellant to resurrect his post-verdict motions, various allegations of ineffective assistance of trial counsel, prosecutorial misconduct and trial court error at this time, thereby, allowing him to benefit from his contemptuous disrespect for the trial court. Furthermore, it would be anomalous to permit Appellant to prevail on this claim and then to subject the trial court to a remand order requiring it to rule on the merits of these same post-verdict motions and other collateral claims which were raised, or which could have been raised, at an earlier time and which could have been addressed had Appellant demonstrated some respect for the trial court and legal process.

Thus, this appeal comes to us without any allegations of error (direct or collateral) preserved, much like those cases where an Appellant either choses not to raise any issues related to the trial and sentencing hearing ² or as in those cases where the Appellant is a fugitive during the appellate process.

In Commonwealth v. Judge, 530 Pa. 403, 609 A.2d 785 (1992), we noted that when we review the death sentence of a fugitive from justice, because of the mandatory nature of our review of all death sentences under our Sentencing Act, we will exercise a limited review, which is confined to determining: 1) whether sufficient evidence was presented at trial to support the conviction of murder of the first degree; ³ 2) whether the sentence of death is the product of passion prejudice, or any other arbitrary factor; 3) whether the evidence fails to support the finding of at least one specified aggravating circumstance; and, 4) whether the sentences are excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. ⁴

With these limitations in mind, we begin by reviewing the record to determine whether sufficient evidence was presented to support the jury's verdict of murder of the first degree. In reviewing the sufficiency of the evidence, we are guided by the well-established principle that we view the evidence and all the reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner, to determine whether sufficient evidence was...