J.J., In Interest of

• Decision Date: 18 April 1995
• Citation: 656 A.2d 1355,540 Pa. 274
• Parties: In the Interest of J.J. Appeal of J.J., Appellant.
• Court: Pennsylvania Supreme Court

Page 1355

656 A.2d 1355

540 Pa. 274

In the Interest of J.J. Appeal of J.J., Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 19, 1994.

Decided April 18, 1995.

John W. Packel, Sarah Kerr, Michael C. Schwartz, Ellen T. Greenlee, Philadelphia, for J.J.

Catherine Marshall, Ronald Eisenberg, George S. Leone, Philadelphia, for Com.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

ZAPPALA, Justice.

The issue presented is whether an appellate court has the discretion to entertain an appeal of a juvenile who became a fugitive during the appellate process but returned to the jurisdiction of the juvenile court prior to disposition of the appeal. We hold that an appellate court has the inherent authority to entertain an appeal of a fugitive who has returned to custody during the pendency of an appeal. An appellate court likewise has discretion to reinstate a timely filed appeal that was dismissed by that court during his fugitive status.

On March 13, 1992, the Appellant was adjudicated delinquent for possession with intent to deliver controlled substances and committed to a juvenile facility, St. Gabriel's Hall. The Appellant filed an appeal to the Superior Court on April 13, 1992. While the appeal was pending, the Appellant fled from St. Gabriel's Hall. He was absent without leave from the juvenile facility from July 19, 1992 to August 16, 1992. He was arrested on August 16, 1992 for theft, unauthorized use of an automobile, receiving stolen property, and escape. He was committed to the Glen Mills School on September 4, 1992.

On September 1, 1992, the Commonwealth filed an application to quash the appeal pending before the Superior Court and a motion for extension of time to file a brief. The request for an extension was granted on September 3, 1992, giving the Commonwealth an additional thirty days to file its brief if the application to quash the appeal was denied. The Appellant filed an answer in opposition to the Commonwealth's application to quash the appeal on September 8, 1992. By order dated November 16, 1992, the Superior Court directed the Commonwealth to file a brief on the merits and referred the application to the panel assigned to hear the case. On January 20, 1993, the Superior Court entered a per curiam order granting the Commonwealth's application to quash the appeal.

We granted the Appellant's petition for allowance of appeal to address his claim that the Superior Court erred in quashing the appeal due to his unauthorized absence from the juvenile facility. Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975) is the seminal case relating to the effect of a defendant's fugitive status on his right to appeal. In Galloway, the appellant was convicted by a jury of murder in the second degree. The appellant escaped from a county prison prior to the date scheduled for argument of his post-trial motions. The trial court entered an order dismissing the appellant's post-trial motions with prejudice. The appellant was apprehended and returned to custody. After sentencing, he filed a supplemental motion for a new trial that was dismissed by the trial court due to his fugitive status at the time of the filing of the original motions.

The appellant escaped from custody again and was a fugitive on the date that this Court had scheduled argument on his appeal. The district attorney filed a petition requesting that the appeal be dismissed with prejudice. An order was entered continuing the argument until he returned to custody. After the appellant had been returned to custody, argument was heard on the merits of the appeal and the motion to dismiss. The parties were directed to file supplemental briefs on the issue of whether the appeal should be dismissed.

The Commonwealth relied upon the U.S. Supreme Court's decision in Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) as support for dismissal. Molinaro was distinguishable, however, because the U.S. Supreme Court had dismissed a case on appeal from a state court when the appellant, who was on bail, failed to surrender himself to state authorities and was considered a fugitive. Unlike Molinaro, the appellant in Galloway had been returned to custody and was once again subject to the court's jurisdiction.

We concluded that there was no basis upon which to grant the motion to dismiss the appeal at that time because the appellant's return ensured that he would be responsive to the judgment rendered. We stated,

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.

460 Pa. at 311-312, 333 A.2d at 743 (citations omitted.) The matter was remanded to the trial court for disposition of the post-trial motions and the supplemental motions on the merits.

The inherent discretion of the appellate courts to refuse to hear the appeal of one who is a fugitive from justice may be exercised upon the filing of a motion of the Commonwealth pursuant to Pa.R.A.P. 1972(6) or sua sponte. See, Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976) (per curiam order entered dismissing appeal when appellant became and remained a fugitive subsequent to filing and submission of briefs); In re Dixon, 282 Pa.Super. 189, 422 A.2d 892 (1980) (submitted appeal dismissed upon information from district attorney and public defender that appellant was a fugitive); Commonwealth v. Albert, 260 Pa.Super 20, 393 A.2d 991 (1978) (per curiam order quashing appeal due to fugitive status of appellant during pendency of the appeal); Commonwealth v. Barron, 237 Pa.Super. 369, 352 A.2d 84 (1975) (appeal dismissed upon Commonwealth's request when appellant escaped from state hospital and bench warrant issued and outstanding at time of appeal).

In this case, the Appellant does not challenge the authority of an appellate court to dismiss an appeal when a defendant is a fugitive, or to deny reinstatement of an appeal or post-verdict motions following capture after the appeal has been dismissed because of his fugitive status. The Appellant contends that the Superior Court erred in dismissing his appeal, however, because he was within the jurisdiction of the juvenile court before the motion to quash was filed and prior to the entry of the dismissal order. He asserts that the dismissal of his appeal at a time when he was within the jurisdiction of the courts of this Commonwealth denied him the right to appeal guaranteed by Article 5, § 9 of the Pennsylvania Constitution. The Appellant cites Galloway as support for his argument that an appellate court should not dismiss the appeal of a criminal defendant who absconds for some period of time during the pendency of his appeal, but is within the court's jurisdiction at the time of decision. The Commonwealth responds that the recent decisions of this Court in Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984), Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988), and Commonwealth v. Jones, 530 Pa. 536, 610 A.2d 439 (1992), have emasculated Galloway and have stripped the appellate courts of their inherent discretionary authority to entertain the appeal of a fugitive who is returned to custody.

In Passaro, the issue was whether a defendant upon his return to custody is entitled to reinstatement of an appeal that has been quashed due to his fugitive status. Passaro was convicted by a jury of burglary and criminal conspiracy. Post-verdict motions were denied, and he was sentenced to prison. A timely notice of appeal was filed in Superior Court. Passaro escaped from prison after a brief had been filed on his behalf with the court, but before oral argument was scheduled. Six months later, the Commonwealth filed a motion to quash the appeal. The motion was granted on April 29, 1983. Passaro was arrested in Ohio on August 24, 1983. He waived extradition and was returned to Pennsylvania. He petitioned for reinstatement of his appeal, but his request was denied by the Superior Court. Passaro filed a similar petition with this Court that was treated as a petition for allowance of appeal and granted.

Passaro did not challenge the propriety of the Superior Court's dismissal of his appeal because of his fugitive status, but argued before this Court that his appeal should be reinstated since he had been apprehended and returned to the jurisdiction of the court. We rejected his argument that the mere fact that a defendant has been returned to custody entitles him to resume his appeal. There is a right of appeal guaranteed by Article 5, § 9 of the Pennsylvania Constitution, but there is no guaranteed right to reinstatement of an appeal when a defendant's appeal has been quashed due to his fugitive status.

The constitutional right to appeal is a personal right that may be relinquished only through a knowing, voluntary, and intelligent waiver; 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.

Passaro, 504 Pa. at 614, 476 A.2d at 348. When a defendant becomes a fugitive, his action "may properly be considered a rejection of the legitimate means afforded the defendant for challenging his conviction and imprisonment." Id. at 615, 476 A.2d at 349.

We acknowledged that dismissal of pending appeals of criminal defendants who are fugitives is an appropriate judicial response to the "flagrant and deliberate bypass of the entire judicial process," Id. at 615, 476 A.2d at 349, and is a longstanding principle of American...