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filed: October 2, 1989.


Appeal from the Judgment of Sentence June 10, 1985, in the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 84-02-419 and 421.


Leonard N. Sosnov, Asst. Public Defender, Philadelphia, for appellant.

Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Cirillo, President Judge, and Brosky, Rowley, McEwen, Olszewski, Tamilia, Popovich, Johnson and Melinson, JJ. Brosky, J., files a concurring opinion.

Author: Rowley

[ 388 Pa. Super. Page 23]

This is an appeal by Tyrone Jones from the judgment of sentence following his conviction in absentia for robbery as a felony of the second degree*fn1 and criminal conspiracy.*fn2 Appellant presents seven issues for our review and asks that his conviction and sentence be reversed and his case be remanded for a new trial or, in the alternative, that his sentence be vacated and his case remanded for resentencing. However, we find that appellant has forfeited his right to appellate review because he was a fugitive. We are, therefore, unable to address the merits of the issues he raises and must quash his appeal.

A brief recitation of the procedural history is in order as background to our discussion of the applicable principle of law. Appellant was arrested on January 27, 1984, in Philadelphia, and charged with the mugging of Mr. James Watson,

[ 388 Pa. Super. Page 24]

    from whom it was alleged the appellant had taken two hundred and sixty-seven dollars, all but seven of which was in brand new currency. Soon after his arrest, and while he was confined alone in a police van in the yard of a nearby police station, the appellant was identified by Mr. Watson as the assailant. Appellant's request for an identification lineup prior to his preliminary hearing was denied on February 2, 1984. His preliminary hearing was held that same day, and Mr. Watson again identified the appellant as his attacker. Appellant then moved to suppress any testimony regarding the confiscation or condition of four ten-dollar bills which he was carrying when he was arrested, as well as the police yard one-on-one confrontation and the preliminary hearing identifications. His suppression motion was denied on January 31, 1985. Appellant also filed a motion in limine to suppress any testimony about the currency found in his possession. This motion was denied on February 1, 1985.

Selection of the jury for appellant's trial was started, but not completed, on February 1, 1985, a Friday. Appellant, who was free on bail was present throughout Friday's proceedings. When appellant's trial resumed on Monday, February 4, 1985, however, appellant was absent. A bench warrant for his arrest was issued that day. Appellant was not immediately apprehended and the trial court, pursuant to Pa.R.Crim.P. 1117(a), continued with the trial. Appellant was tried and convicted in absentia.*fn3 Timely post-verdict motions were filed by appellant's counsel. The trial court denied the motions. Appellant, still not having been apprehended, was sentenced on June 10, 1985, in absentia. A motion to modify sentence was filed by appellant's counsel and denied by the trial court. This timely direct appeal was taken and is now before us for decision. Appellant has been represented throughout these proceedings by counsel who has vigorously asserted appellant's rights at every stage of the case.

[ 388 Pa. Super. Page 25]

Appellant now claims that his constitutional, statutory and procedural rights were violated during his trial.*fn4 However, before we can consider the merits of appellant's arguments, we must determine whether he has forfeited his right to appellate review.

The trial court correctly denied appellant's post-trial motions because appellant, at the time, was a fugitive. Commonwealth v. Albert, 260 Pa. Super. 20, 393 A.2d 991 (1978). The question is whether we have discretion to hear appellant's appeal which was filed while he was a fugitive, now that he has been returned to custody in Pennsylvania and is amenable to any order that may be entered.

In Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975), our Supreme Court permitted an appeal by a criminal defendant who had been a fugitive, but was later recaptured. Galloway had been convicted of murder in the second degree. Post-trial motions, which included a reservation that he be allowed to file additional supplemental reasons after the notes of testimony were transcribed, were timely filed. Before argument was held on the motions, however, Galloway escaped from the Lancaster County Prison and became a fugitive from justice. The Commonwealth petitioned the trial court to dismiss Galloway's post-trial motions and the trial court granted the petition, dismissing Galloway's motions with prejudice. Galloway was later apprehended, and sentenced to a term of ten to twenty years imprisonment. Following sentence, Galloway filed "Additional and Supplemental Motions for a New Trial, Nunc Pro Tunc", which the trial court allowed, by order, to be filed and dismissed them the same day on the basis that Galloway had been a fugitive.

[ 388 Pa. Super. Page 26]

A direct appeal was filed by Galloway to the Supreme Court and the case was listed for argument. When the case was called, the Court was informed that Galloway had again escaped from custody and was once again a fugitive. The district attorney petitioned the Court to dismiss Galloway's appeal with prejudice. The Court took no action on the petition and continued the argument generally until Galloway was returned to custody. Three months later the Court was advised that Galloway had been returned to custody, a ...

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