NO. 1434 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, April Term, 1977, at Nos. 852, 853 and 855.
Louis Podel, Philadelphia, for appellant.
Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Wieand and McEwen, JJ. Wieand, J., has filed a dissenting opinion.
[ 300 Pa. Super. Page 192]
Appellant-defendant here contends that the trial judge denied his constitutional right to an appeal when the trial judge, after the defendant had escaped from custody and while a fugitive for fourteen months, dismissed the post-trial motions of the defendant. We reject this contention and, therefore, affirm.
The defendant was convicted on March 10, 1978 by a jury of robbery, burglary and criminal conspiracy after a trial in the Philadelphia County Common Pleas Court. Even though the defendant had failed to file timely motions with the Common Pleas Court following the verdict of guilt, the trial judge approved the petition of the defendant for leave to file post-trial motions nunc pro tunc. Those motions were
[ 300 Pa. Super. Page 193]
filed on April 20, 1978 and scheduled for the presentation of oral argument on June 15, 1978.
Since the defendant had escaped from prison and was a fugitive on June 15, 1978, the scheduled date of argument, the trial judge continued the argument date until further notice but took no other action.*fn1
The record reflects that when the presentation of oral argument was next scheduled on September 26, 1978, the defendant was still a fugitive and failed to appear, as a result of which the trial judge directed that a bench warrant be issued and that sentence be deferred pending apprehension.*fn2
It appears, therefore, that while the trial judge simply continued argument upon the post-trial motions when first listed on June 15, 1978, the trial judge specifically addressed the fugitive status of the defendant at the second listing on September 26, 1978, and proceeded to (1) issue a bench warrant and also (2) defer sentence until the appellant was apprehended. The action of the court at this second listing made clear that no longer would sentence be deferred for argument upon the motions. Rather, the court directed that the next proceeding in the case would be for the purpose of imposing sentence, once the defendant was again in custody. It is obvious, therefore, that the court considered the escape and flight by the defendant to constitute a waiver of the outstanding motions and deemed that, thereby, the motions were concluded.
The defendant, after some fourteen months as a fugitive, was finally returned to custody, not by his voluntary surrender but by his apprehension. When the court imposed the sentence ...