Commonwealth v. Lines

609 A.2d 832, 415 Pa. Super. 438, 1992 Pa. Super. LEXIS 1607

• Court: Superior Court of Pennsylvania
• Decided: June 19, 1992
• Docket: 2606
• Status: Published

Opinions

OLSZEWSKI, Judge.

This is an appeal from the judgment of sentence rendered on July 19, 1991, by the Court of Common Pleas of Bucks County. Following a jury trial on October 10, 1986, appellant was convicted of first-degree murder, receiving stolen property, and conspiracy to hinder apprehension.¹ Appellant absconded from the courthouse during jury deliberations, and on October 14, 1986 a bench warrant was issued for his arrest. On October 20, 1986, while appellant remained at large, post-trial motions for new trial and in arrest of judgment were filed on appellant’s behalf. In response, the Commonwealth filed a motion to quash these appeals due to appellant’s fugitive status. According to the record and docket entries, the trial court never acted upon the Commonwealth’s motion to quash. Appellant remained a fugitive from justice until December 21, 1986. In February of 1987, appellant retained new counsel who filed additional post-trial motions. After numerous evidentiary hearings, these motions were denied on May 23, 1991. Appellant was sentenced to life imprisonment on July 19, 1991, and this appeal followed.

Appellant presents three issues for our consideration.² Appellee Commonwealth, however, proposes the additional argument that the trial court erred by denying its motion to quash appellant’s “appeal” since appellant was a fugitive from justice at the time post-trial motions were filed.³ The heart of the Commonwealth’s assertion challenges our ability to exercise appellate review of this case. For the reasons below, we quash this appeal; therefore, we will not attend to the merits of appellant’s arguments.

In the present case, the trial judge chose to pospone ruling on appellant’s first set of post-trial motions, and did not respond to the Commonwealth’s motion to quash. Instead, once appellant was returned to custody, the trial court allowed appellant’s new counsel to file additional post-trial motions and later denied these motions on other substantive grounds. Pennsylvania case law indicates that a trial court is without discretion and, therefore, must dismiss a defendant’s post-trial motions as long as a defendant is fugitive. Commonwealth v. Clark, 300 Pa.Super. 315, 318, 446 A.2d 633, 634 (1982), cert. denied, 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990); Commonwealth v. Albert, 260 Pa.Super. 20, 22, 393 A.2d 991, 992 (1978); Commonwealth v. Boyd, 244 Pa.Super. 98, 100, 366 A.2d 934, 935 (1976). Accordingly, we find that the trial judge erred by failing to act on the Commonwealth’s motion to quash.

With regard to the powers of this Court, case law has evolved which bars appellate review where an appellant has jeopardized his rights by becoming a fugitive. See Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984); Commonwealth v. Luckenbaugh, 356 Pa.Super. 355, 514 A.2d 896 (1986) (Olszewski, J., dissenting), reversed, 520 Pa. 75, 550 A.2d 1317 (1988); Commonwealth v. Jones, No. 193 E.D.1990, — Pa.-, 610 A.2d 439 (1992). In Commonwealth v. Passaro, appellant was a fugitive at the appellate level since he escaped following the filing of his appellate brief, but before oral argument. Passaro, 504 Pa. at 613-614, 476 A.2d at 347-348. Thereafter, the Commonwealth’s motion to quash his appeal was granted. Id. Following his apprehension, appellant filed a petition to reinstate his appeal which was denied. Id. On appeal, appellant did not dispute the propriety of the dismissal of his appeal, but rather asserted his right to appellate reinstatement once apprehended. The Passaro Court acknowledged the right of appeal guaranteed by Article 5, section 9 of the Pennsylvania Constitution, but added that “... the right to appeal is conditioned upon compliance with the procedures established by this Court, and a defendant who deliberately chooses to bypass the orderly procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences of his decision.” Id. Reasoning that appellant had exercised his right of appeal which he then forfeited by escaping, our Supreme Court held that appellant’s petition for reinstatement was properly denied. Id. The Passaro case has become the basis of subsequent decisions concerning the effect of fugitive status upon appellate rights.

In Commonwealth v. Luckenbaugh, a panel of this Court confronted a situation where appellant had escaped after filing a petition for reconsideration of sentence. Luckenbaugh, 356 Pa.Super. at 357 n. 1, 514 A.2d at 897 n. 1. This Court held that the lower court properly dismissed appellant’s petition, but continued to address the merits of the appeal claiming that appellant had returned to the jurisdiction and that challenges to the legality of a sentence could not be waived. Id. In a dissenting opinion, this author relied on the Passaro decision and countered that the appeal should not be reviewed since appellant forfeited his right to appellate review by escaping during the pendency of the petition for reconsideration. Luckenbaugh, at 358, 514 A.2d at 898. This author further stated, “This Court should not indulge in the whims of a petitioner who deliberately acted to avoid its rules.” Id. In line with this dissent, our Supreme Court reversed the Superior Court decision, per curiam, citing Passaro. Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988).

Finally, in Commonwealth v. Jones, our Supreme Court recently affirmed this Court’s en banc decision to quash the appeal of an appellant who was a fugitive during the appellate process. Appellant, who was charged with robbery and criminal conspiracy, escaped when jury selection had commenced but had not yet been completed. Jones, — Pa. at -, 610 A.2d at 441. Appellant was tried and convicted, in absentia, pursuant to Pa.R.Crim.P. 1117(a) which provides that “defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict.” Jones, at —, 610 A.2d at 441. While appellant remained at large, his post-verdict motions were denied on the merits, he was sentenced, his petition for reconsideration was denied arid a timely notice of appeál was filed. Id. Later, appellant was apprehended while his appeal was pending. Id. The issue before our Supreme Court was whether appellant had forfeited his appellate rights by becoming a fugitive from justice. In response, our Supreme Court held that:

A defendant’s voluntary escape acts as a per se forfeiture of of his rights 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 has forever forfeited his right to appeal.

Jones, at-, 610 A.2d at 441 (emphasis added). Instantly, appellant escaped from the courthouse during jury deliberations and remained a fugitive for two months after the filing of his post-trial motions. Accordingly, under the direction of Jones, appellant has “forever forfeited his right to appeal” by electing to become a fugitive after post-trial procedures have begun.

Following the rationale espoused by our Supreme Court in Passaro and subsequently developed in the Luekenbaugh and Jones decisions, we find that we are precluded from reviewing appellant’s arguments and quash appellant’s appeal.⁴

Appeal quashed.

JOHNSON, J., dissents.

1 . Appellant was acquitted of robbery.

2 . Specifically, appellant asks us to review:

(1) Whether the attorney for the Commonwealth, in his closing presentation, continuously expressed his personal opinions of the evidence so as to deprive appellant of a fair trial.

(2) Whether the Commonwealth committed prosecutorial misconduct in failing to disclose exculpatory evidence concerning its star witness, failing to comply with the discovery rules, and failing to correct perjured testimony of the star witness, thus requiring a new trial.

(3) Whether appellant was denied effective assistance of counsel when defense counsel allowed the admittance of hearsay statements without objection, failed to properly prepare for trial and conduct an independent defense investigation, failed to utilize character witness testimony, and failed to develop and present a coherent and cogent theory of defense.

Appellant’s brief at 2.

3 . The Commonwealth’s motion to quash appellant’s "appeal’’ was, in actuality, an attempt to have appellant’s post-trial motions dismissed due to his fugitive status. At this point in the proceedings, notice of appeal had not yet been lodged.

4 . See also, Commonwealth v. Judge, — Pa.-, 609 A.2d 785 (Pa. 1992) (Appellant forfeited his rights to appellate view of any claims of error by escaping from custody two days after sentencing. Since this was a death penalty case, however, our Supreme Court reviewed the sufficiency of the evidence and appellant’s sentence as mandated by 42 Pa.C.S.A. § 9711(h).).