NO. 2368 PHILADELPHIA, 1980, Appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. 108/114 April Term, 1979.
Harvey W. Robbins, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Beck and Lipez, JJ. Spaeth, J., files a dissenting statement.
[ 300 Pa. Super. Page 317]
This appeal arises from an incident on March 23, 1979 wherein Hilary Rossi was sexually assaulted and robbed. Appellant was convicted on July 23, 1979 by a jury of rape, robbery, unlawful restraint and possession of an instrument of crime.
Appellant timely filed post-trial motions on July 31, 1979, and argument on the motions was scheduled for September 26, 1979. On the day scheduled for motions, appellant escaped from custody and was not returned to this jurisdiction until July 25, 1980.
The lower court on November 8, 1979 dismissed appellant's post-trial motions over his counsel's objection. He was sentenced on September 17, 1980 to incarceration for a period of twelve to twenty-five years.
Appellant alleges, inter alia, that he is entitled to a remand for reinstitution of post-verdict motions because he is no longer a fugitive from justice and is now subject to the jurisdiction of the court. In advancing that claim, appellant relies principally upon Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975). After a conviction and the timely filing of motions for a new trial and in arrest of judgment, but before oral argument on the motions, Galloway escaped from prison. The trial court dismissed his post-trial motions. After he was apprehended and sentenced, his counsel filed supplemental motions because Galloway was a fugitive from justice when the original motions were filed. Those supplemental motions were also dismissed. An appeal was filed in the Supreme Court and on the day listed for oral argument, the court was informed that he had once again escaped. The court continued the hearing pending his return. Upon his return, the court denied the Commonwealth's motion to dismiss because Galloway was then subject to the jurisdiction of the court and therefore responsive to any judgment
[ 300 Pa. Super. Page 318]
rendered. The Galloway court remanded to the trial court for reinstatement of the post-trial motions.*fn1
It is clear that the trial court in Galloway, as in the instant case, was without discretion in denying defendant's post-verdict motions as long as he remained a fugitive outside the court's jurisdiction. Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976). It is equally clear, however, that when appellant returns to the court's jurisdiction, this court may grant leave to re-file post-trial motions. Commonwealth v. Albert, 260 Pa. Super. 20, 393 A.2d 991 (1978); Commonwealth v. Borden, 256 Pa. Super. 125, 389 A.2d 633 (1978). While it is within our discretion to remand for reinstatement, as did the Galloway court, we are not constrained to do so.
We conclude instead that the trial court did not abuse its discretion in declining to reinstate appellant's post-trial motions even after he was returned to its jurisdiction. We premise our conclusion upon a theory of waiver as propounded in ...