Commonwealth v. Judge

609 A.2d 785, 530 Pa. 403, 1992 Pa. LEXIS 309
CourtSupreme Court of Pennsylvania
DecidedMay 18, 1992
Docket104 E.D. Appeal Docket 1987
StatusPublished
Cited by25 cases

This text of 609 A.2d 785 (Commonwealth v. Judge) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Judge, 609 A.2d 785, 530 Pa. 403, 1992 Pa. LEXIS 309 (Pa. 1992).

Opinions

OPINION OF THE COURT

LARSEN, Justice.

On April 15, 1987, appellant, Roger Judge was convicted by a jury of two counts of murder of the first degree and possession of an instrument of crime. Immediately following the verdict, a sentencing hearing was held pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711, and the jury unanimously sentenced appellant to death for each first degree murder conviction. On June 12, 1987, post-trial motions were heard and denied by the trial judge, who formally sentenced appellant to death for each of the two murders.1

On June 14, 1987, two days after sentencing, appellant escaped from custody.2 On August 11, 1987, while still a fugitive, appellant filed a pro se notice of appeal from the death sentence judgments. Appellant is presently incarcerated in British Columbia, Canada, where he is serving two ten-year prison terms for robberies. Pursuant to Article 6 of the extradition agreement between the United States and Canada, appellant cannot be extradited to Pennsylvania, because first degree murder is not punishable by death in Canada.3 Treaty on Extradition, Dec. 3, 1971; amended June 28, 1974, July 29, 1974, United States-Canada, 27 U.S.T. 983, T.I.A.S. No. 8237; Criminal Code, R.S.C., c. C-46, s. 235(1).

[406]*406On December 22, 1989 this Court, sua sponte, entered a per curiam order limiting review of the case to sufficiency of the evidence, and propriety of the sentence.4 In derogation of this Court’s order, appellant’s attorney raised several claims of error for our review. Although this Court has the authority to correct errors at trial which the appellant raises5, this Court’s rules expressly provide for the quashing of an appeal when the appellant is a fugitive. Pa.R.A.P. 1972(6)6, and it is within the discretion of this Court to take such action sua sponte. Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976). Additionally, this Court has held that “a defendant who elects to escape from custody forfeits his right to appellate review.” Commonwealth v. Passaro, 504 Pa. 611, 616, 476 A.2d 346, 349 (1984) (emphasis added).

In Passaro, we noted that “[disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law.” Id., 504 Pa. at 614-15, 476 A.2d at 348 (quoting Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975)). In Pennsylvania we have consistently followed this practice. [407]*407E.g., Commonwealth v. Craddock, 522 Pa. 491, 564 A.2d 151 (1989); Commonwealth v. Ciotti, 318 Pa.Super. 549, 465 A.2d 690 (1983) (en banc), vacated, 506 Pa. 10, 483 A.2d 852 (1984); Commonwealth v. Luckenbaugh, 356 Pa.Super. 355, 514 A.2d 896 (1986), vacated, 520 Pa. 75, 550 A.2d 1317 (1988). Moreover, we have held that once the defendant has fled, his subsequent return or recapture does not provide a basis for reinstating his appeal. Commonwealth v. Passaro, supra.

Although Passaro was not a capital case, there is nothing in the broad language of the opinion that limits its holding to non-capital defendants. Dismissal of pending appeals of defendants escaped from death row is not a novel concept. E.g., Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897); Mosley v. State, 189 Ga. 71, 5 S.E.2d 47 (1939); State v. Jugger, 217 La. 687, 47 So.2d 46 (1950); see, Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554 (1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985) (denying motion to dismiss only because the defendant surrendered within period set by court).

However, because of the severity and finality of the sentence of death, we are statutorily mandated to review all death sentences pursuant to 42 Pa.C.S.A. § 9711(h).7 In [408]*408capital cases, we must also review the sufficiency of the evidence to sustain a conviction for murder of the first degree. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 987 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327, reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). We will discharge this duty regardless of whether appellant has challenged his conviction on that ground. Id., 500 Pa. at 26 n. 3, 454 A.2d at 942 n. 3. In Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991), this Court held that notwithstanding appellant’s desire not to pursue his appeal in order to expedite his execution, we will discharge our duty under the foregoing standard. See also, Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780 (1988) (automatic review mandatory, regardless of appellant’s desire to waive appeal). Consequently, appellant’s election to flee does not allow him to subvert our goal of insuring that the death sentence comports with the Commonwealth’s death penalty statute.

Therefore, even though appellant has forfeited his right to raise any claims of error, we will nonetheless review the sufficiency of the evidence to convict, and appellant’s sentence under § 9711(h), where appellant has become a fugitive from justice, and cannot be made subject to the Court’s jurisdiction. Were we to decide to delay review pending appellant’s return to this jurisdiction, which in this case may be twenty years, we run the risk that, should appellant be entitled to a new trial, the Commonwealth would have a difficult time retrying him, due to the common problems associated with the passage of time.

In reviewing the sufficiency of the evidence, we must view the evidence and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner, and must determine whether [409]*409there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Bryant, 524 Pa. 564, 574 A.2d 590 (1990). Applying this standard, we find the evidence sufficient beyond a reasonable doubt to sustain the jury’s verdicts of murder of the first degree.

The evidence adduced at trial discloses the following. On the evening of September 13, 1984, Christopher Outterbridge was engaged in a conversation with his girlfriend across the street from his house at 110 West Wyoming Avenue in Philadelphia. Appellant, Roger Judge, approached the couple and began taunting Christopher.

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Bluebook (online)
609 A.2d 785, 530 Pa. 403, 1992 Pa. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-judge-pa-1992.