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COMMONWEALTH PENNSYLVANIA v. MICHAEL LLOYD (09/09/83)

filed: September 9, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL LLOYD, APPELLANT



NO. 909 Philadelphia 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Bucks County, Criminal No. 1476 of 1980

COUNSEL

William H. Mitman, Jr., West Chester, for appellant.

Eric Gavin Marttila, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Spaeth, Wieand and Hoffman, JJ. Wieand, J., files a concurring and dissenting statement.

Author: Spaeth

[ 319 Pa. Super. Page 8]

This is an appeal from a judgment of sentence for robbery and related offenses. Appellant filed a motion in arrest of judgment or for a new trial, and later, a motion for a new trial based on after-discovered evidence. When the motions were called for argument the trial court dismissed them because appellant was a fugitive. Appellant was apprehended, and filed an application to reinstate the motions. Without ruling on the application to reinstate, the trial court imposed sentence. In its opinion in response to this appeal the court states that it denies the application to reinstate, and also, denies the motion in arrest of judgment or for a new trial and the motion for a new trial based on after-discovered evidence. However, the court had no power to deny either the application to reinstate the motions or the motions themselves, for this appeal had divested it of

[ 319 Pa. Super. Page 9]

    jurisdiction. Given the trial court's failure to rule on the application to reinstate, we have concluded that we should rule on it. So ruling, we grant the application to reinstate the motions, vacate the judgment of sentence, and remand with instructions to the trial court to hear argument on the motion in arrest of judgment or for a new trial, and to hold a hearing on the motion for a new trial based on after-discovered evidence.

On January 23, 1981, a jury found appellant guilty of robbery and related offenses. On January 28 appellant filed a motion in arrest of judgment or for a new trial, and on July 17, a motion for new trial based upon after-discovered evidence. Meanwhile, on July 1, appellant had escaped from the county prison. On August 10, when appellant's motions were called for argument, the trial court dismissed the motions on the ground that appellant was still a fugitive.

On September 19, 1981, appellant was apprehended and returned to prison, and on November 13 he filed an application to reinstate his motion in arrest of judgment or for a new trial and his motion for a new trial based on after-discovered evidence. The record discloses that the trial court failed to rule on the application to reinstate: the docket contains no entry of an order in response to the application; the record papers contain no such order; and from the transcript of the sentencing proceeding, it appears that no such order was announced from the bench. On March 15, 1982, without ever having ruled on the application to reinstate, the trial court sentenced appellant to 10 to 20 years in the state penitentiary. In its opinion in response to this appeal the court states for the first time that it denies appellant's application to reinstate his motion in arrest of judgment or for a new trial and his motion for a new trial based on after-discovered evidence. Slip op. at 3. After referring to its earlier order dismissing the motions, on the ground that appellant was a fugitive, the court continues:

Assuming that it is still within our discretion to refuse to hear Defendant's motions at this level, we deny Defendant's

[ 319 Pa. Super. Page 10]

    petition [application to reinstate the motions]. Since we anticipate that the Superior Court might overturn this decision, we will ...


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