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11/21/97 COMMONWEALTH PENNSYLVANIA v. MARTIN JAMES

November 21, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MARTIN JAMES DEEMER, APPELLANT.



Appeal from the Order of Superior Court entered July 26, 1995 at No. 00291PHL95, affirming the order dated December 16, 1994 of the Court of Common Pleas, Northampton County at No. 962-1992. Before: Flahrty, C.j., Zappala, Cappy, Castille, Nigro, And Newman, JJ. Mr. Justice Castille files a Concurring opinion in which Madame Justice Newman joins.

The opinion of the court was delivered by: Flaherty

OPINION OF THE COURT

MR. CHIEF JUSTICE FLAHERTY

DECIDED: NOVEMBER 21, 1997

The issue in this case is whether a trial court may properly deny a defendant's motion to file post-trial motions nunc pro tunc when the defendant has willfully and purposely become a fugitive during proceedings before the trial court and before post-trial proceedings have begun.

Deemer was convicted of retail theft, fifth offense, on February 8, 1994. He was present for the trial, but failed to return to court when the jury announced its verdict. He also failed to appear for a scheduled post-verdict presentence investigation appointment. The court issued a bench warrant for Deemer's arrest, and on April 13, 1994, sentenced him in absentia. Post-trial motions were filed on February 18, 1994 and April 22, 1994, and were dismissed on April 29, 1994 due to Deemer's fugitive status. Deemer does not claim that he did not know of the date of sentencing, but only that notice of the date of sentencing does not appear of record. The trial court found that Deemer had actual notice of the date of sentencing.

Deemer was apprehended on June 30, 1994, and on December 8, 1994, he filed a pro se motion to reinstate post-verdict motions nunc pro tunc. The trial court denied Deemer's motion, stating:

In this case, we were aware of the Borger [429 Pa. Super. 209, 632 A.2d 309 (1993)] decision at the time the defendant's post-trial motions were dismissed. We were aware that we had the discretion to reinstate the post-sentence proceedings. We fully considered the defendant's legal responsibility and determined that the defendant had knowingly absconded and his absence from the jurisdiction was without cause or justification. We exercised our discretion, dismissed the post-sentence proceedings in accordance with Jones [530 Pa. 536, 610 A.2d 439 (1992)], and refused reinstatement of post-sentence motions in accordance with Borger.

Slip Op. at 5. (Trial Court). *fn1

The Superior Court affirmed, holding that the trial court's refusal to reinstate Deemer's post-verdict motions was a valid exercise of its discretion.

Since the trial court relied in part on our decision in Jones and that case remains seminal in the effect of fugitive status on appellate rights, we turn first to a Discussion of Jones. In Jones, the defendant appeared initially for jury selection, but failed to return after a weekend pass. He was tried and convicted in absentia. In his absence, defense counsel filed timely post-verdict motions, which the trial court denied on the merits. Subsequently, the trial court sentenced the defendant in absentia. Defense counsel appealed the judgment of sentence and while the appeal was pending, Jones was arrested. The issue on appeal was whether Jones had forfeited his right to appellate review by becoming a fugitive. It was in this context that a majority of this court held that a voluntary escape acts as a forfeiture of the right to appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. We stated:

A defendant's voluntary escape acts as a per se forfeiture of his right of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant's capture or voluntary return to custody. Thus, by choosing to flee from Justice, appellant forever forfeited his right to appeal.

530 Pa. at 541, 610 A.2d at 441.

Subsequently, this court has decided a number of cases concerning the impact of fugitive status upon appellate rights, but there has been significant disagreement on the court as to the continued viability of the per se rule in Jones. *fn2 The difficulty with Jones is that it sets up an absolute rule of forfeiture of appellate rights. Returned fugitives should be punished, if appropriate, for violations of court orders or statutes which compel their presence in court, but they should not be punished additionally by forfeiture of their appellate rights. On the other hand, a returned fugitive should not benefit from his fugitive status. Courts should not take extraordinary measures, such as ...


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