Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 1080, 1081, 1083, 1085
Peter C. Bowers, Philadelphia, for appellant.
Kathy Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Tamilia, Kelly and Cercone, JJ.
[ 389 Pa. Super. Page 202]
Appellant was convicted by a jury on June 30, 1988 of second degree murder,*fn1 criminal conspiracy,*fn2 robbery*fn3 and possessing an instrument of crime.*fn4 Immediately after trial appellant was sentenced to the mandatory term of life imprisonment for the murder, but sentencing on the other convictions was deferred pending the disposition of post-trial motions. Post-trial motions were timely filed and a hearing was scheduled for September 8, 1988. At the end of August, however, appellant was mistakenly sent back to New York, on the Philadelphia district attorney's authorization, to continue serving a sentence which pre-existed his trial in the instant case. The hearing on post-trial motions
[ 389 Pa. Super. Page 203]
was continued to allow the district attorney an opportunity to have appellant returned for the hearing and sentencing. Three hearings on the matter were held in New York and appellant, represented by counsel, refused to consent to his return to Pennsylvania (transcripts from October 31, November 4 and November 18, 1988 are included in the case record). Finally, on December 28, 1988, a hearing was held to dispose of the post-trial motions and appellant was sentenced in absentia to five to ten years imprisonment for conspiracy and two and one-half to five years imprisonment for possessing an instrument of crime, all sentences to run consecutively. The robbery conviction merged with the murder for sentencing purposes. A motion for reconsideration was filed and denied and appellant now raises six issues on appeal. The facts are as follows.
Appellant and two others entered the Ho Sai Gai Restaurant in Philadelphia on August 14, 1983 to extort "protection" money from the owner. Apparently, they were members of a New York gang and had collected "dues" from Chinatown restaurants there. The owner refused their demands so they tried to open the cash register. The manager, Jade Wong, was discovered calling police and one of appellant's co-conspirators shot her in front of two eyewitnesses.
Appellant's first issue raises the propriety of the trial court refusing a continuance and conducting the post-trial motions hearing and sentencing without appellant being present. Defense counsel had sought a continuance of the hearing because appellant was still in New York, would not return to Philadelphia and counsel was unable to consult with him or contact him in New York. The trial court found appellant had refused his opportunity to be present, thereby waiving his rights, and the hearing could be held without him pursuant to Pa.R.Crim.P. 359(D).*fn5 We find
[ 389 Pa. Super. Page 204]
there was no error in holding the hearing and sentencing appellant in absentia.
The trial court has discretion over a request for continuance and a denial of such a request will not be reversed absent a showing of palpable and manifest abuse of the court's discretion. Commonwealth v. Mehalic, 382 Pa. Super. 264, 555 A.2d 173 (1989). Although appellate counsel argues he had insufficient time to prepare before argument, we will not reverse a denial of a continuance on the mere allegation ...