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COMMONWEALTH PENNSYLVANIA v. MARIO ALAN PASSARO (05/25/84)

decided: May 25, 1984.

COMMONWEALTH OF PENNSYLVANIA, RESPONDENT,
v.
MARIO ALAN PASSARO, PETITIONER



No. 65 W.D. Misc. Docket 1983, Petition for Reinstatement of Appeal seeking Review of Order of Superior Court Dated September 26, 1983, entered at No. 213 Pittsburgh, 1982, denying Petition for Reinstatement of Appeal following Order of that Court dated April 29, 1983 Quashing Petitioner's Appeal on Motion of Commonwealth

COUNSEL

Stanley J. Wolowski, Greenville, for petitioner.

Samuel J. Orr, IV, Dist. Atty., Mercer County, James P. Epstein, First Asst. Dist. Atty., Mercer, for respondent.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a concurring opinion.

Author: Nix

[ 504 Pa. Page 613]

OPINION OF THE COURT

The issue before the Court is the entitlement of a convicted defendant whose direct appeal has been quashed in consequence of his escape from custody during the pendency of that appeal to reinstatement of his appeal following his recapture.

The pertinent facts in this matter are not in dispute. Following a successful post-conviction challenge to his guilty plea in connection with a 1974 burglary, petitioner was retried and convicted by a jury of burglary and criminal conspiracy on July 16, 1981. Petitioner's post-verdict motions were denied, and he was sentenced to a term of five to ten years' imprisonment on January 28, 1982. A timely notice of appeal was filed in the Superior Court. After a brief had been filed on his behalf in that court, but prior to the scheduling of oral argument, petitioner escaped from the State Correctional Institution at Rockview on October 18, 1982. On April 15, 1983, at which time petitioner had remained at large for approximately six months, the Commonwealth filed a motion to quash petitioner's appeal. That motion was granted on April 29, 1983. Petitioner was subsequently located and arrested by Brookfield, Ohio authorities on August 24, 1983. After his apprehension he

[ 504 Pa. Page 614]

    waived extradition and was returned to Pennsylvania. On September 16, 1983 petitioner filed a petition for reinstatement of his appeal in the Superior Court. Following the denial of that petition, petitioner filed a similarly titled petition in this Court. We treated the request as being a petition for allowance of appeal pursuant to 42 Pa.C.S. ยง 724(b), and elected to hear the matter.

We begin our inquiry by acknowledging that the right of appeal is guaranteed by Article 5, section 9 of the Pennsylvania Constitution.*fn1 Our past decisions have emphasized that this constitutional right to appellate review is a personal right which may be relinquished only through a knowing, voluntary and intelligent waiver. See, e.g., Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978); Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971); Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967); Commonwealth ex rel. Edowski v. Maroney, 423 Pa. 229, 223 A.2d 749 (1966). Nevertheless, the right to appeal is conditioned upon compliance with the procedures established by this Court, and a defendant who deliberately chooses to bypass the orderly procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences of his decision. Commonwealth v. Coleman, 458 Pa. 324, 327 A.2d 77 (1974); Commonwealth v. Bolognese, 428 Pa. 405, 239 A.2d 307 (1968); Commonwealth ex rel. Harbold v. Rundle, 427 Pa. 117, 233 A.2d 261 (1967); Commonwealth v. Wallace, 427 Pa. 110, 233 A.2d 218 (1967).

"Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law." ...


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