Com. v. Passaro

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore NIX; NIX; ZAPPALA; ZAPPALA
Citation476 A.2d 346,504 Pa. 611
Decision Date25 May 1984
PartiesCOMMONWEALTH of Pennsylvania, Respondent, v. Mario Alan PASSARO, Petitioner.

Page 346

476 A.2d 346
504 Pa. 611
COMMONWEALTH of Pennsylvania, Respondent,
v.
Mario Alan PASSARO, Petitioner.
Supreme Court of Pennsylvania.
Argued March 9, 1984.
Decided May 25, 1984.

Page 347

[504 Pa. 613] Stanley J. Wolowski, Greenville, for petitioner.

Samuel J. Orr, IV, Dist. Atty., Mercer County, James P. Epstein, First Asst. Dist. Atty., Mercer, for respondent.

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

OPINION OF THE COURT

NIX, Chief Justice.

The issue before the Court is the entitlement of a convicted defendant whose direct appeal has been quashed in consequence of his escape from custody during the pendency of that appeal to reinstatement of his appeal following his recapture.

The pertinent facts in this matter are not in dispute. Following a successful post-conviction challenge to his guilty plea in connection with a 1974 burglary, petitioner was retried and convicted by a jury of burglary and criminal conspiracy on July 16, 1981. Petitioner's post-verdict motions were denied, and he was sentenced to a term of five to ten years' imprisonment on January 28, 1982. A timely notice of appeal was filed in the Superior Court. After a brief had been filed on his behalf in that court, but prior to the scheduling of oral argument, petitioner escaped from the State Correctional Institution at Rockview on October 18, 1982. On April 15, 1983, at

Page 348

which time petitioner had remained at large for approximately six months, the Commonwealth filed a motion to quash petitioner's appeal. That motion was granted on April 29, 1983. Petitioner was subsequently located and arrested by Brookfield, Ohio authorities on August 24, 1983. After his apprehension he [504 Pa. 614] waived extradition and was returned to Pennsylvania. On September 16, 1983 petitioner filed a petition for reinstatement of his appeal in the Superior Court. Following the denial of that petition, petitioner filed a similarly titled petition in this Court. We treated the request as being a petition for allowance of appeal pursuant to 42 Pa.C.S. § 724(b), and elected to hear the matter.

We begin our inquiry by acknowledging that the right of appeal is guaranteed by Article 5, section 9 of the Pennsylvania Constitution. 1 Our past decisions have emphasized that this constitutional right to appellate review is a personal right which may be relinquished only through a knowing, voluntary and intelligent waiver. See, e.g., Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978); Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971); Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967); Commonwealth ex rel. Edowski v. Maroney, 423 Pa. 229, 223 A.2d 749 (1966). Nevertheless, 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. Coleman, 458 Pa. 324, 327 A.2d 77 (1974); Commonwealth v. Bolognese, 428 Pa. 405, 239 A.2d 307 (1968); Commonwealth ex rel. Harbold v. Rundle, 427 Pa. 117, 233 A.2d 261 (1967); Commonwealth v. Wallace, 427 Pa. 110, 233 A.2d 218 (1967).

"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, [504 Pa. 615] 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975). In Pennsylvania this practice has been frequently followed, see, e.g., Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976); Commonwealth v. Lewis, 300 Pa.Super. 191, 446 A.2d 295 (1982); In Interest of Dixon, 282 Pa.Super. 189, 422 A.2d 892 (1980); Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978); Commonwealth v. Barron, 237 Pa.Super. 369, 352 A.2d 84 (1975); and is expressly provided for in our Rules of Appellate Procedure. Pa.R.A.P. 1972(6). 2 It is within the discretion of the reviewing court to take such an action sua sponte, Commonwealth v. Tomlinson, supra, or on motion of the Commonwealth, Pa.R.A.P. 1972(6).

The procedure of dismissing the appeal of a criminal appellant who becomes a fugitive is unquestionably appropriate. As we explained in Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975):

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...

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40 practice notes
  • Kindler v. Horn, No. CIV.A.99-CV-0161.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 24, 2003
    ...record, it appears that the trial judge based this decision on the "fugitive forfeiture rule" as articulated in Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). The Pennsylvania Supreme Court affirmed the trial court decision, concluding "that the action taken in dismissing the po......
  • Commonwealth v. Smith, No. 2 EAP 2019
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 21, 2020
    ...of his right of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence."); Commonwealth v. Passaro , 504 Pa. 611, 476 A.2d 346, 349 (1984) (holding that, "by choosing to flee and live as a fugitive, a defendant forfeits the right to have his claims consi......
  • Judge v. Beard, CIVIL ACTION NO. 02-CV-6798
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 28, 2012
    ...from custody forfeits his right to appellate review.'" Judge, 609 A.2d at 786, (citing Pa. R. A. P. 1972(6), Commonwealth v. Passaro, 504 Pa. 611, 616, 476 A.2d 346, 349 (1984), and Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976)). The Court went on to review the case record and ......
  • Doctor v. Walters, No. 95-3484
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 4, 1996
    ...the Pennsylvania Supreme Court's opinions in Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975) and Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). In Galloway, the defendant escaped from custody during the pendency of his direct appeal to the Pennsylvania Supreme Court. ......
  • Request a trial to view additional results
40 cases
  • Kindler v. Horn, No. CIV.A.99-CV-0161.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 24, 2003
    ...record, it appears that the trial judge based this decision on the "fugitive forfeiture rule" as articulated in Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). The Pennsylvania Supreme Court affirmed the trial court decision, concluding "that the action taken in dismissing the po......
  • Commonwealth v. Smith, No. 2 EAP 2019
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 21, 2020
    ...of his right of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence."); Commonwealth v. Passaro , 504 Pa. 611, 476 A.2d 346, 349 (1984) (holding that, "by choosing to flee and live as a fugitive, a defendant forfeits the right to have his claims consi......
  • Judge v. Beard, CIVIL ACTION NO. 02-CV-6798
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • November 28, 2012
    ...from custody forfeits his right to appellate review.'" Judge, 609 A.2d at 786, (citing Pa. R. A. P. 1972(6), Commonwealth v. Passaro, 504 Pa. 611, 616, 476 A.2d 346, 349 (1984), and Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976)). The Court went on to review the case record and ......
  • Com. v. Jones
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 19, 1992
    ...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 T......
  • Request a trial to view additional results

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