Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1970, Nos. 1420 to 1422, inclusive, in case of Commonwealth of Pennsylvania v. Warren Felton.
William J. Brady, Jr., for appellant.
Jeffrey Brodkin, Assistant District Attorney, with him James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ.
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This appeal raises the question of whether or not a trial may be conducted in the absence of the defendant.
The appellant, Warren Felton, was charged with burglary, aggravated robbery, and carrying a concealed deadly weapon. On June 1, 1971, the appellant, who was free on bail, and his counsel appeared before the
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Honorable Herbert R. Cain, Jr., and requested a continuance on the ground that the appellant had been ill and had been unable to communicate with his attorney and aid in the preparation of his case. Furthermore, the appellant contended that his illness would make his attendance at trial difficult. Judge Cain refused to grant appellant's request for a continuance and ordered appellant to appear in Room 654 City Hall, Philadelphia for trial before the Honorable Leo Weinrott.
Rather than appear for trial, the appellant disappeared without ever setting foot in Judge Weinrott's courtroom. Judge Weinrott issued a bench warrant for appellant and adjourned the proceedings for the day. When the appellant was not apprehended, the Judge engaged in numerous discussions with the District Attorney and defense counsel before electing to proceed with the trial in the absence of the defendant. The decision to try the defendant in absentia was made over the strenuous objection of defense counsel.
The origin of the modern right to be present at one's trial is devolved from the ancient common law requirement that no trial for a felony could take place in the absence of the defendant; neither could the defendant waive his right to be present at trial because his absence would deprive the court of jurisdiction in the matter. 61 J. Crim. L. 327 (1970). In the late 1800's, the Supreme Court of the United States enunciated the rule that where a defendant has been charged with the commission of a felony, nothing may be done in the absence of that defendant. Lewis v. United States, 146 U.S. 370, 372 (1892). Chief Justice Gibson of the Pennsylvania Supreme Court most clearly and unequivocally expressed this principle of law over 120 years ago: "It is undoubtedly error to try a person for a felony in his absence, even with his consent. It would be contrary to the dictates of humanity to let him waive
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the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defense with indulgence. Never has there heretofore been a prisoner tried for felony in his absence. No precedent can be found in which his presence is not a postulate of every part of the record. . . when it is stated on the record positively that the prisoner was not present, we cannot shut our eyes to the fact. What authority had the prisoner's counsel in this instance, on the pretext of convenience, to waive their presence? In a criminal case, there is no warrant of attorney, actual or potential; for when a prisoner binds himself by an agreement which he is competent to make, it is entered on the record as his immediate act; and this is a sufficient reason why he should be in Court to do those things which his counsel cannot do for ...