Com. v. Tonkin, C.
Com. v. Tonkin, C. No. 1462 MDA 2015
| Pa. Super. Ct. | Feb 22, 2017Background
- Defendant Clyde Earl Tonkin was charged with statutory sexual assault and aggravated indecent assault after an ongoing sexual relationship with a 13‑year‑old resulted in a child.
- Tonkin was released on bail with house arrest and an electronic ankle monitor and was notified of a jury trial date.
- On the morning of trial Tonkin cut off his electronic monitor, failed to appear, and was absent more than two hours after the scheduled start; no one contacted the court to explain his absence.
- The Commonwealth located the monitor’s last signal and informed the court that Pittston police were searching for him. Defense counsel opposed proceeding in absentia but acknowledged prior contact with Tonkin about the trial.
- After a Rule 602 hearing the trial court concluded Tonkin voluntarily absented himself, tried him in absentia, and later imposed an aggregate sentence of 16 to 32 years. The Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trying Tonkin in absentia was error where there was no evidence explaining his absence | Commonwealth: Tonkin intentionally and voluntarily absented himself (cut his monitor, knew trial date), so Rule 602 permits trial in absentia | Tonkin: absence prejudiced him; trial should not proceed because he might be apprehended and has a right to be present | Court: The Commonwealth proved absence without cause by a fair preponderance; trial in absentia was proper and not an abuse of discretion |
Key Cases Cited
- Commonwealth v. Ford, 650 A.2d 433 (Pa. 1994) (defendant may waive presence; absence can be voluntary and permit trial in absentia)
- Commonwealth v. Sullens, 619 A.2d 1349 (Pa. 1992) (defendant must be present at trial; absence without cause allows trial to proceed)
- Commonwealth v. Tizer, 684 A.2d 597 (Pa. Super. 1996) (discusses waiver of presence and absent defendant issues)
- Commonwealth v. Bond, 693 A.2d 220 (Pa. Super. 1997) (absence not "without cause" when defendant unaware of charges or trial date)
- Commonwealth v. Pantano, 836 A.2d 948 (Pa. Super. 2003) (trial court discretion on continuances and presence issues)
- Commonwealth v. Ross, 350 A.2d 836 (Pa. 1976) (standard for reviewing denial of continuance)
- Commonwealth v. McAleer, 748 A.2d 670 (Pa. 2000) (abuse of discretion standard explained)