Opinion
This appeal raises the question of whether or not a trial may be conducted in the absence of the defendant.
The appellant, Warren Felton, was charged with burglary, aggravated robbery, and carrying a concealed deadly weapon. On June 1, 1971, the appellant, who was free on bail, and his counsel appeared before the *400 Honorable Herbert R. Cain, Jr., and requested a continuance on tbe ground that the appellant had been ill and had been unable to communicate with his attorney and aid in the preparation oí his case. Furthermore, the appellant contended that his illness would make his attendance at trial difficult. Judge Cain refused to grant appellant’s request for a continuance and ordered appellant to appear in Room 654 City Hall, Philadelphia for trial before the Honorable Leo Weinbott.
Rather than appear for trial, the appellant disappeared without ever setting foot in Judge Weinbott’s courtroom. Judge Weinbott issued a bench warrant for appellant and adjourned the proceedings for the day. When the appellant was not apprehended, the Judge engaged in numerous discussions with the District Attorney and defense counsel before electing to proceed with the trial in the absence of the defendant. The decision to try the defendant in absentia was made over the strenuous objection of defense counsel.
The origin of the modern right to be present at one’s trial is devolved from the ancient common law requirement that no trial for a felony could take place in the absence of the defendant; neither could the defendant waive his right to be present at trial because his absence would deprive the court of jurisdiction in the matter. 61 J. Crim. L. 327 (1970). In the late 1800’s, the Supreme Court of the United States enunciated the rule that where a defendant has been charged with the commission of a felony, nothing may be done in the absence of that defendant.
Lewis v. United States,
The absolute tenor of the rule that a trial may not be conducted in the absence of the defendant has been eroded over the years. In
Diaz v. United States,
The question of whether or not a defendant has a right to be present at all stages of his trial was most fully discussed by Justice Benjamin Cardozo in
Snyder
*402
v. Massachusetts,
In the instant matter, the appellant was never present in the courtroom during his trial. The jury was selected, the evidence was offered, and the verdict was rendered in the absence of the accused. The appellant was present in the assignment room on the day that the trial was scheduled to begin, but he violated the conditions of Ms bail by failing to appear in the courtroom to which his case was assigned. Although a defendant waives his right to be present at trial by voluntarily refusing to appear before the court once the trial has begun,
Commonwealth v. Diehl,
Although there may be portions of the trial where a defendant’s presence does not have “a relation, reasonably substantial to the fulness of his opportunity to defend against the charge,” Snyder n. Massachusetts, supra, there is no question that an accused who is absent from an entire trial has been substantially prejudiced in presenting his defense. 1 This case is distinguishable from a proceeding where the defendant voluntarily absents himself from the courtroom subsequent to the initiation of the proceeding. If a mistrial were declared whenever a defendant voluntarily absents himself from the courtroom during trial, the courts would encourage defendants to refuse to appear whenever they expect the judge or jury to render a verdict of guilty. Such an absence would guarantee the defendant another opportunity to be acquitted. These circumstances do not attach to a case where the defendant does not appear on the date scheduled for trial. While the appellant’s absence delayed the administration of justice, the appellant would not have received a second chance at acquittal if the trial had been postponed until his apprehension. If the waiver rule were extended to include actions taken by an accused prior to trial, fugitives who are unaware of the charges against them could be tried in absentia. This could prevent the system from reaching a just and fair verdict. Both the *404 United States and Pennsylvania Constitutions guarantee that an accused has a right to be present at trial; this right cannot be waived by an accused’s actions prior to trial.
The order of the lower court is reversed and the case remanded for a new trial.
Notes
He lost Ms right to be present during tlie selection of the jury, Hopt v. United Slates, supra, Lewis v. United States, supra; be was not present during tbe charge to the jury, Shields v. United States, supra; and he was not present during the pronouncement of the verdict, Com. ex rel. Milewski v. Ashe, supra. Most importantly, he did not have an opportunity to confront the witnesses against him, Pointer v. Texas, supra; Comm. v. Hoss, supra; this right is explicitly guaranteed by Article 1, section 9 of the Pennsylvania Constitution.