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COMMONWEALTH v. TURNER (03/23/71)

decided: March 23, 1971.

COMMONWEALTH
v.
TURNER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Mercer County, March T., 1967, No. 77, in case of Commonwealth of Pennsylvania v. Joe Turner.

COUNSEL

Andrew D. Regule, Assistant Public Defender, for appellant.

Robert F. Banks, Assistant District Attorney, and Joseph J. Nelson, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Montgomery, J., joins in this dissenting opinion.

Author: Per Curiam

[ 218 Pa. Super. Page 173]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

[ 218 Pa. Super. Page 174]

Dissenting Opinion by Hoffman, J.:

Appellant, a resident of Ohio, was arrested and indicted on a charge of armed robbery. Subsequently, he was freed on bail. A few months later appellant's counsel was told to appear in court to select a jury. Attempts to contact appellant were unsuccessful. However, at the beginning of the afternoon court session, appellant's counsel agreed to the selection of the jury in appellant's absence. Appellant appeared for trial the next morning, but did not protest the selection of the jury in his absence.

The jury found appellant guilty as charged. From judgment of sentence this appeal followed.

The general rule is that a defendant charged with a felony has a constitutionally protected right to be present at every stage of the trial from arraignment to the rendition of the verdict. Lewis v. United States, 146 U.S. 370, 13 S. Ct. 136 (1892); Commonwealth ex rel. Lockhart v. Myers, 193 Pa. Superior Ct. 531, 540, 165 A.2d 400 (1960).*fn* However, in non-capital cases in Pennsylvania, it has been held that where counsel is present "the defendant's absence will be construed as a voluntary waiver of his right to be present." Commonwealth v. Diehl, 378 Pa. 214, 219, 107 A.2d 543, 545 (1954); Commonwealth ex rel. Hancock v. Maroney, ...


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