No. 2562 October, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, No. 1329 February Term, 1979
F. Emmet Ciccone, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, DiSalle and Popovich, JJ.
[ 289 Pa. Super. Page 128]
The lower court sitting without a jury found appellant guilty of theft by receiving stolen property;*fn1 post verdict motions were denied and appellant was sentenced to six to twenty-three months imprisonment. In this direct appeal, appellant's only claim is that there was insufficient evidence to support his conviction. For the reasons set forth below, we affirm the lower court's judgment of sentence.
Before responding to appellant's sufficiency claim, this Court needs to address an issue which arose after the appeal was filed. To-wit, while the case was pending, the District Attorney of Philadelphia County advised this Court that appellant had become a fugitive and requested that the
[ 289 Pa. Super. Page 129]
appeal be dismissed pursuant to Pa.R.A.P. 1972(6).*fn2 Prior to ruling on the Motion to Quash, the District Attorney informed this Court that appellant had been apprehended in Bucks County and was in custody; nonetheless, the District Attorney still maintained that appellant's appeal be quashed on the grounds that his right of appellate review was forfeited when he became a fugitive. We do not agree.
In Commonwealth v. Borden, 256 Pa. Super. 125, 389 A.2d 633 (1978), this Court was confronted with a situation similar to the instant one. There, the appellant was free on bail both prior to and during trial, but after a verdict of guilty was rendered to various criminal offenses the bail was increased. However, since the verdict was not returned until late on a Friday, the lower court allowed appellant until the following Monday to secure the added bail. When the appellant failed to file the additional bail and did not appear in court, the trial judge issued a bench warrant for his arrest.
Notwithstanding this turn of events, appellant's counsel still filed post-trial motions. The lower court dismissed the averments, without ruling on their merits, on the basis that appellant was a "fugitive from justice." Thereafter, appellant returned to the court's jurisdiction*fn3 and petitioned this Court for leave to refile post-verdict motions nunc pro tunc. The Borden Court, in granting the petition, 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
[ 289 Pa. Super. Page 130]
beyond the jurisdiction and control of the court, and hence, might not be responsive to the judgment of the court. See Smith v. United States, 94 U.S. [4 OTTO] 97, 24 L.Ed. 32 (1876); Ruetz v. Lash, 500 F.2d 1225 (7th Cir. 1974); United States v. Swigart, 490 F.2d ...