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April 23, 1997


Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division at No. 95-03-0115.

Appeal from Judgment of Sentence January 26, 1996, in the Court of Common Pleas of Philadelphia County, Criminal Division at No. 95-03-0115. Before FIELD, J.

Before: Del Sole, Popovich And Olszewski, JJ. Opinion BY Popovich, J. Olszewski, J. files a Concurring Opinion.

The opinion of the court was delivered by: Popovich


FILED APR 23 1997

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following appellant's conviction on the charges of carrying a firearm on a public street, possessing an instrument of crime, making terroristic threats, and recklessly endangering another person. Herein, appellant alleges that the trial court abused its discretion in denying his motion to suppress, conducting his trial, and sentencing him in absentia. We affirm.

On February 21, 1995, appellant and two co-conspirators robbed Dwayne McBurnette at gunpoint. Immediately following the robbery, Mr. McBurnette located a police officer and informed him that he had been robbed. Appellant was later apprehended and charged with various offenses related to the robbery. He was then released on bail. On January 23, 1996, at approximately 9:00 a.m., appellant appeared at the courthouse ready for trial. He informed the court crier that he was present and then took a seat next to the courtroom's doors. Shortly thereafter, Mr. McBurnette entered the courtroom and took a seat opposite appellant. Appellant stared at Mr. McBurnette for a period of time and then abruptly left the courtroom. At approximately 9:25 a.m., the trial Judge took the bench and called appellant's case for trial. Defense counsel informed the trial Judge that appellant had left the courtroom and that counsel was unable to locate him. A bench warrant was issued for appellant's arrest. After contacting the area's hospitals and the morgue, the trial Judge decided to proceed in appellant's absence. Therefore, despite appellant's absence, on January 23, 1996, the trial Judge heard and denied appellant's motion to suppress Mr. McBurnette's identification of him. Jury selection then commenced on January 23, 1996, and was completed on January 24, 1996. On January 26, 1996, appellant's jury trial was held and the jury convicted him on all of the charges. Appellant was then immediately sentenced by the trial court. On February 13, 1996, an appeal was filed on appellant's behalf alleging that it was unconstitutional for the trial court to deny appellant's motion to suppress, to conduct his trial, and to sentence him in absentia. Appellant was not apprehended until "sometime after the filing of his notice of appeal." Appellant's Brief p. 13. *fn1 After being apprehended, appellant was incarcerated.

It is undisputed that appellant was a fugitive for a period of time during the pendency of this appeal. Accordingly, the Commonwealth argues that we should quash appellant's appeal due to his former fugitive status. The decision of whether to entertain the appeal of a fugitive once returned to custody lies within this Court's discretion, subject only to the requirements that the appellant's fugitive status must not affect our ability to dispose of the case and that any sanction must constitute a reasonable response to the flight. In Interest of J.J., 540 Pa. 274, 656 A.2d 1355 (1995) (Zappala, J., plurality opinion). *fn2 In Interest of J.J., 447 Pa. Super. 259, 668 A.2d 1176, 1179 (1995), a panel of this Court enunciated the following factors which are to be used in determining whether an appellant should be sanctioned for his flight:

(1) the stage of the proceedings when the flight occurred, i.e., during the trial, post-trial or on appeal; (2) the manner in which the defendant escaped; (3) whether the defendant has been returned to custody; (4) the circumstances surrounding the defendant's return to custody, i.e., was the return voluntary or was the defendant captured in the course of committing another crime; (5) the length of time that the defendant remained at large; (6) the age/maturity/condition of the defendant, i.e., whether he is a juvenile or adult and whether he is capable of comprehending fully the significance of his conduct; (7) the reasons for the defendant's flight...and, the effect which the defendant's flight had upon the court's ability to engage in effective and meaningful review of the defendant's claims.

Upon consideration of these factors, we find that dismissal of the appeal is not warranted.

The record indicates that appellant was absent during his suppression hearing, trial, and sentencing. Moreover, when appellant's appeal to this Court was filed on his behalf, he remained at large and was not taken into custody until "sometime after the filing of his appeal" when he was apprehended by the police. Nevertheless, appellant was back in custody well before this Court received his appellate brief, heard his appellate argument and reviewed the merits of his appeal. "Nothing in the record indicates that appellant's flight has disrupted the appellate process. Nor has the period of flight substantially compromised this Court's ability to engage in effective and meaningful review of the question presented by appellant. The impact on the appellate process, if any, was minimal." In Interest of J.J., 668 A.2d at 1179. Accordingly, we decline to quash this appeal. "However, because the sole issue raised by appellant on appeal is a direct result of his flight from the jurisdiction, we find that the issue is waived." Commonwealth v. Rodriguez, 448 Pa. Super. 60, 670 A.2d 678, 679 (1996).

"The Sixth Amendment to the United States Constitution, Article I, Section 9 of the Pennsylvania Constitution and Rule 1117 (a) of the Pennsylvania Rules of Criminal Procedure guarantee the right of an accused to be present in court at every stage of a criminal trial." Commonwealth v. Tizer, 454 Pa. Super. 1, 684 A.2d 597, 604 (1996). However, in non-capital cases, this right may be waived either expressly or implicitly by a defendant's actions. Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992) (Flaherty, J., plurality opinion). *fn3 This principle is embodied in Pennsylvania's case law and in Rule 1117 (a) which provides, in relevant part, that "the defendant's absence without cause shall not preclude proceeding with the trial including the return of the verdict." Our supreme court has held that "when a defendant is absent 'without cause' at the time his trial is scheduled to begin, he may be tried in absentia, as Pa.R.Crim.P. 1117 (a) contemplates." Sullens, 619 A.2d at 1352 (holding that it was proper for trial to commence where appellant failed to appear on the day his trial was scheduled to begin). Moreover, this Court has held that when a defendant leaves the courtroom voluntarily and without cause prior to sentencing he may be sentenced in absentia. Rodriguez, supra. *fn4 Our supreme court has indicated that a defendant who is unaware of the charges against him, unaware of the establishment of his trial date or is absent involuntarily is not absent "without cause." Sullens, supra.

Applying the aforementioned to the case sub judice, we find that the trial court did not abuse its discretion when it denied appellant's motion to suppress, conducted his trial and sentenced him in absentia. It is clear that appellant was absent "without cause." Appellant concedes that he had notice of his trial date and that he was informed that he was required to appear for trial on that date. In addition, he concedes that he appeared for trial and that he voluntarily decided to flee the courtroom which necessitated his trial and sentencing in absentia. *fn5 Thus, by his actions, appellant has waived the right to challenge the proceedings and his sentence on the basis that it was imposed in his absence.

Appellant concedes that his waiver of the right to be present was voluntary and not coerced. However, he contends that his mere voluntary absence from his suppression hearing, trial, and sentencing cannot be construed as an effective waiver, that is, "an intentional relinquishment or abandonment of a known right or privilege," Johnson v. Zerbst, 82 L. Ed. 1461, 304 U.S. 458, 58 S. Ct. 1019 (1938), unless it is demonstrated that he knew or had been warned expressly by the trial court that the proceedings would continue in his absence. ...

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