Com. v. McLaurin

• Decision Date: 20 November 1981
• Parties: , 23 A.L.R.4th 947 COMMONWEALTH of Pennsylvania v. George Steve McLAURIN, a/k/a Steven George McLaurin, a/k/a Steve Lyons, a/k/a Steve McQueen, Appellant.
• Court: Pennsylvania Superior Court

Page 440

437 A.2d 440

292 Pa.Super. 392, 23 A.L.R.4th 947

COMMONWEALTH of Pennsylvania v. George Steve McLAURIN, a/k/a Steven George McLaurin, a/k/a Steve Lyons, a/k/a Steve McQueen, Appellant.

Superior Court of Pennsylvania.

Argued May 1, 1981.

Filed Nov. 20, 1981.

Gary V. Skiba, Erie, for appellant.

Michael R. Cauley, Asst. Dist. Atty., Erie, for Commonwealth, appellee.

Before POPOVICH, MONTGOMERY and HOFFMAN, JJ.

POPOVICH, Judge:

After appellant's Motion to Suppress was denied, a jury found him guilty of Robbery (18 Pa.C.S.A. § 3701) and Conspiracy (18 Pa.C.S.A. § 903). Thereafter, a Motion for a New Trial and/or in Arrest of Judgment was denied, and appellant was sentenced to a term of ten to twenty years imprisonment for Robbery and two-and-a-half to five years for Conspiracy. This appeal followed.

The appellant does not raise the question of the sufficiency of the evidence or complain of the sentence imposed, but contends, inter alia, ¹ that counsel was ineffective for permitting the suppression hearing to be held in appellant's absence. We agree and, accordingly, remand for proceedings consistent with this Opinion.

On the date scheduled for the suppression hearing, the Commonwealth's attorney informed the court that "the eye witness (sic) (was) not present in the Courtroom. He (was) apparently out of town." (SH 3) Appellant's counsel objected to proceeding without such witness. In light of the fact that such witness' on-the-scene identification prompted appellant's arrest, counsel considered such person "an essential witness to the suppression." Id. To placate counsel, the court offered him the option either to continue the hearing to a later time or take the testimony of those witnesses who were present, and, at the completion of same, make his motion for a continuance. Counsel agreed to the latter, but, at the termination of the hearing, he never renewed his request for a continuance.

At the suppression, the victim did not appear. As a result, the facts elicited were from the only three witnesses (Sgt. James Mack, Officers Frank Bugaj and Donald Metzgar) who testified, viz.:

At approximately 1:20 A.M. on November 23, 1979, Andrew Yurasko was robbed of his wallet and watch by two black males as he left the Polish National Alliance (PNA) Club, located at 21st and Ash Streets in Erie, Pennsylvania. Sgt. Mack, of the Erie Police, received a radio call of the robbery and arrived on the scene within a matter of minutes. Mr. Macey, an eyewitness to the incident, approached the Sgt. and informed him that he (Macey) had observed two blacks running from the PNA parking lot and enter a 1969 or 1970 brown Buick, heading east on 21st Street. Mr. Macey told the Sgt. that the driver was wearing a light tan jacket and light tan hat, while the passenger was described as wearing a dark black hat and a dark jacket. Sgt. Mack relayed the information via radio within a minute of receiving it; within a matter of two or three minutes, Officers Metzgar and Washburn spotted the brown Buick and apprehended the two blacks therein. The stop occurred at 18th and Thompson, a site about twelve blocks from the PNA Club. The eyewitness was taken to the location and once there, with the suspects standing alongside their vehicle and the police "(r)ight with them," he identified the vehicle and the driver, Anthony Paul, but "(h)e didn't identify (the appellant)." ² (SH 22) The two were then formally arrested.

Immediately after the taking of testimony, the following revealing remarks were made:

"(COMMONWEALTH'S ATTORNEY): Your Honor, I would like the record to show the Defendant's (sic) are not present and they waived the presence of the hearing.

(APPELLANT'S ATTORNEY): We probably should have asked them if he (sic) wanted to be here. I would waive it for them but I certainly can't waive their rights. ³ They might-I will put this on the record, there is no information that my client could have given me that could have been pertinent at this point.

(COMMONWEALTH'S ATTORNEY): That's all we have, your Honor. " ⁴

(SH 40-41)

Initially, the Court notes that its perusal of the record failed to produce any evidence to substantiate the Commonwealth's assertion that appellant "waived" his right to be at the hearing. ⁵ As for appellant's contention, when distilled, that suppression counsel was ineffective for permitting the hearing to be conducted in his absence, ⁶ we observe that this exact issue has yet to be ruled upon in this jurisdiction by an appellate court.

The general rule on this question before the Court is that a defendant charged with a felony has a constitutionally protected right to be present at every stage of a trial, i. e., from the arraignment to the rendition of the verdict. See Lewis v. United States,146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892) ("A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner.") Brinlee v. Crisp, 608 F.2d 839, 848 (10th Cir. 1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980); see also Commonwealth v. Hoss, 445 Pa. 98, 114, 283 A.2d 58, 67 (1971); Commonwealth ex rel. Lockhart v. Myers, 193 Pa.Super. 531, 540, 165 A.2d 400, 405 (1960), cert. denied, 368 U.S. 860, 82 S.Ct. 102, 7 L.Ed.2d 57 (1961); 10A P.L.E. Criminal Law §§ 502 and 503 (1970). However, such right can be relinquished, e. g., it can be waived by one's words or actions. See Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970); Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978); Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976); see generally Commonwealth v. Diehl, 378 Pa. 214, 219, 107 A.2d 543, 545 (1954); Commonwealth ex rel. Hancock v. Maroney, 177 Pa.Super. 133, 110 A.2d 923 (1955). In Pennsylvania, such right is reflected in Pa.R.Crim.P. 1117, which provides in pertinent part: "(t)he 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 ...." Instantly, appellant's counsel's statement at the suppression hearing that he was not waiving the appellant's right to be present, negates any inference that appellant's absence was a voluntary, knowing and intelligent one. See Diaz v. United States, 223 U.S. 442, 453-459, 32 S.Ct. 250, 253-255, 56 L.Ed. 500 (1912); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); see also Commonwealth v. Graham, 248 Pa.Super. 406, 375 A.2d 161 (1977); Commonwealth v. Graves, 238 Pa.Super. 452, 356 A.2d 813 (1976); Commonwealth v. Doctor, 228 Pa.Super. 304, 323 A.2d 790 (1974); Commonwealth v. Felton, 224 Pa.Super. 398, 307 A.2d 51 (1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974); Pa.R.Crim.P. 1117(a) ("... The defendant's absence without cause shall not preclude proceeding with the trial ...."). As a result, a need to remand for an evidentiary hearing to determine whether appellant's absence was volitional is obviated. See generally Commonwealth v. Turner, 218 Pa.Super. 173, 275 A.2d 694 (1971) (HOFFMAN, J., dissenting and MONTGOMERY, J. joins); cf. Commonwealth ex rel. Butler v. Claudy, 171 Pa.Super. 573, 91 A.2d 318 (1952) (in a trial involving a non-capital felony, the proceeding is presumed regular and lawful until the contrary appears).

It is widely recognized that a defendant's presence during all stages of the trial does not extend to purely procedural matters preparatory to the trial, particularly where no prejudice has been shown. See, e. g., United States v. Alessandrello, 637 F.2d 131, 138 n. 11 (3d Cir. 1980) (Fed.R.Crim.P. 43, codified existing law concerning a defendant's constitutional and common law rights to be present throughout trial, subject to harmless error doctrine); Commonwealth ex rel. Lockhart v. Myers, supra; see also Commonwealth v. Rush, 493 Pa. 358, 426 A.2d 588 (1981); Anno., 85 A.L.R.2d 1111. Additionally, courts generally hold that defendant's presence is required when testimony of witnesses is received, but under certain circumstances when matters of law are being argued before the court, such as preliminary pre-trial motions which do not affect substantial rights of the defendant, defendant's attendance is not required. 21A Am.Jur.2d, Criminal Law, § 911 (1981); 23 C.J.S. Criminal Law, § 974, pp. 895-897 (1961); see Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965) (coroner's inquest not an adversary proceeding; appellant suffered no prejudice because he did not have an opportunity to be present).

Consistent with the preceding, the Supreme Court of the United States found, in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), that a defendant's presence was not required during a view of the scene of the crime. In arriving at this conclusion, the Court in Snyder formulated a standard by which the necessity of a defendant's appearance at a particular stage of his trial may be determined. That is, a defendant needs to be present where, "(i)t bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend." Id. at 106, 54 S.Ct. at 332, cited with approval in Commonwealth v. Carter, 219 Pa.Super. 280, 281 A.2d 75 (1971). The Snyder Court went on to state: "So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. at 107-108, 54 S.Ct. at 333.

In applying the rationale of Snyder to the case at bar, we conclude that appellant was denied due process of law by his counsel's failure to inform him to appear at the suppression hearing, where witnesses' testimony regarding his identification as a participant in a crime would be given. This was testimony which tended to show that ...