*3 years term of 33 incarceration l&h JOHNSON, Before STEVENS and 16, hearing, April sentencing 1997. At his OLSZEWSKI, JJ. custody appellant and declined hearing. Proceeding representation that OLSZEWSKI, Judge. se, timely post-trial appellant filed mo- (appellant) appeals Aaron Ford from his tions, sub- which were denied. Counsel was judgment of by sentence entered the Frank- appointed appellant this sequently and County following lin Court of Common Pleas appeal followed. being After tried in absentia appellant’s whether We must decide counsel, appel- and without process rights when he due were violated lant was convicted of five of unlawful counts attorney repre was tried in absentia without delivery of a controlled substance and sen- they It sentation. conclude were.1 15jé years Ap- tenced 33 incarceration. Pennsylvania that in is well established pellant by claims the trial court erred allow- for trial without defendant fails days his counsel to withdraw three before cause, tried he or she in absentia. trial, absentia, by im- trying him in and 1117(a); Pa.R.Crim.P. Commonwealth posing an excessive sentence. Because we (1992). Sullens, 99, 1349 To 619A.2d validly right find did not waive his counsel, however, is tty a defendant without counsel, we vacate the of sen- completely matter. different See Gideon
tence and remand for a new trial.
792,
335,
Wainwright, 372
83
9
U.S.
S.Ct.
charged with
five counts
(1963) (right to
is funda
L.Ed.2d 799
counsel
delivery
unlawful
substance.
controlled
tidal).
to a fair
mental
essential
1996,
May
the trial court
attorney
“It is
a criminal
appellant.
This
initi-
well settled that
discovery
represented
pre-trial
right
filed an
has the
to be
ated
omnibus
defendant
Grant,
hearing
at trial.”
At
on this
motion.
419, 423,
pellant requested
Pa.Super.
323 A.2d
continuance
order
(1974) (citing
Wainwright, swpra).
subse-
Gideon v.
secure
court-ap-
right
Id. Before waiv
quently approved the
This
be waived.
withdrawal
found, however,
counsel,
re-
Gregory
the “trial court is
pointed
er is
trial,
sentencing.
for a new
we do not
his trial in absentia and
1. Because
remand
appellant’s remaining
challenging
reach
claims
(1995) (“It
quired
that,
searching
to make a
and formal on- 1341
is well settled
when an
‘(1)
inquiry
the-record
ascertain
whether
individual files an
and then becomes a
right
justice,
permissible
the defendant is
of his
aware
it is
for the
or
appellate
not and
quash
appeal.”).
whether the defendant
court to
Our
consequences
Court, however,
waiving
aware of the
Supreme
rejected
soundly
”
Carothers,
Deemer,
or not.’
practice
in Commonwealth v.
Pa.Super. 208,
(1997).
675 A.2d
Pa.
Starr,
(quoting
fugitives
Returned
punished,
should be
if
564, 579,
1326, 1334(1995));
664 A.2d
see
appropriate, for violations of court orders
Smith,
also Commonwealth v.
compel
or statutes which
their
presence
“The
court,
they
punished
should not be
question of waiver must be determined re-
additionally by
forfeiture
their
*4
gardless of
the
whether
accused can or can-
rights.
hand,
On the other
a returned
Grant,
not
engage
afford to
counsel.”
229
fugitive
fugitive
should not benefit from his
424,
Pa.Super. at
[t]he must reinstate trial motions or tunc, appeal waiver in right. the nunc order to accom- constitutional Nor fugitives presumed can waiver be modate where the who now returned record show, pursue post-trial is silent. The record must or wish to there measures. must be an allegation and evidence which Rather, a fugitive who has returned to show, that an accused was offered counsel jurisdiction the of the court should be al- intelligently and understanding^ re- post-trial rights lowed to exercise his in jected the Anything offer. less is not the same done manner he would have had Thus, waiver. this Court is constitutional- he fugitive.... not become If he returns ly place proving bound the burden of filing after appeal the time for an has waiver the Commonwealth. elapsed, request appeal his to file an fugitive a should be denied. If he becomes Carothers, 215-16, Pa.Super. 450 at 675 A.2d filed, appeal after an been his has Monica, (quoting at 738 Commonwealth v. any fugitive should be decided and status 266, 272-74, 600, 528 Pa. 597 A.2d 603 short, In separately. should be addressed (1991)). fugitive a who returns to court should be bar, In the ease at the record re system allowed take criminal the inquiry flects no whether into upon he as finds it return: if his rights or knowingly aware of whether he file; filing elapsed, may for has he not Certainly, them. prob waived there nowas not, may. if he he has inquiry required as Carothers. Such Hence, fugitive per Id. status is not se inquiry quite obviously an is impossible when punished by nega- waiver nor it be the present a defendant fails to himself before rights. tion of Fugitive constitutional status however, appear, the court. Failure to is not separate wrong is instead its own knowing waiver. the tantamount consequences. past, courts of this Commonwealth have Indeed, fugitive appellate consequences fugi treated status as waiver the rights, dismissing grounds and also as tive status Commonwealth sub See, First, appeal. e.g., escapee subject pending Commonwealth v. stantial. an could be Craddock, 139, Pa.Super. § escape charges. 370 A.2d 535 1189 See 18 Pa.C.S. curiam, (1988), 491, Second, per flight 564 can indica the consider aff'd (1989) (“The general guilt. A.2d 151 rule is that in tive of a defendant’s consciousness Jorden, voluntary fugitive Pa.Super. a criminal status See dis- Commonwealth v. 333 (1984) 291, 302-04, 573, (cita upon entitles a defendant to call the re 482 A.2d 579 omitted). Third, shown, disposition sources the court tions if cause is not claims.”); legal escapee gives up present an defendant’s to be 535, 536-38, 1340, Huff, v. 540 Pa. 658 A.2d trial and be tried in absentia. Sul- necessary before courtesy. It is critical and lens, by an Finally, proffered supra. bail or permitted to withdraw attorney is 42 Pa.C.S.A. escapee is forfeited. representation. her inquisitional § coun- An trial without Cf. 48-50, 46, 446 Pa.Super. Worthy, 301 sel, however, permissible punishment is not a (1982) 1327, (obligation of status. of withdrawal give client notice counsel to the-trial We now consider whether of Anders requirement important the most mo granted Attorney Abeln’s properly 1396, California, 87 S.Ct. 386 U.S. bright is no line tion to withdraw. There and Commonwealth L.Ed.2d 493 its governing when a trial court abuses rule (1968)); Baker, A.2d 201 ruling petition discretion in on a to withdraw Liska, Pa.Super. Sweeney, as counsel. See Commonwealth 109-11, (appellate notify of intention must client (1987). Rather, weigh the in a court must proceed for client to in time withdraw adjudication, in a fair terests of the client appointment of persona propria or of the Commonwealth efficient interests counsel). recognize practical new justice, and the interests of administration fugitive. notice to a difficulty providing id. attorney seeking withdrawal. See however, rule, mandatory unless Therefore, problem of the turns “resolution As justice require otherwise. interests *5 analysis particular upon by a case case with the inter- process, of due per our discussion given to the reasons the trial attention by allowing justice not served of were ests at the time for withdrawal court in this case. withdrawal that, is Id. We find denied.” Also, withdrawal proximity to trial renders granting appellant’s court erred in the trial mere was made a improper. The motion ap attorney’s to withdraw without motion start. days the trial was to before three pointing new counsel. with Attorney Abeln’s last communication certainly may It true that counsel is If he before trial. pellant was three weeks for a from seek withdraw concerns, them should have addressed had he reasons, variety to financial. of from ethical impossible for the practically before it was Keys, See Commonwealth v. appel- any prejudice against mitigate court to This is appellant is prejudice lant. Avoidance however, every say, not to time with 302(b). underlying Rule important concern attorney’s permissible drawal is from the 455-57, 580 A.2d Keys, Pa.Super. at Cf. it. As perspective that the Court must allow (the which occurred procedural default at 387 standard, Sweeney the inter indicated case without attorney from withdrew and the client ests of the Commonwealth the court prevented informing court and be considered before withdrawal must importance of avoiding it revealed the Instantly, weigh proper. several factors 302(b)’s allow- requirement of formal Rule against permitting withdrawal. withdrawal). ance of 302(b), provides in rel Pa.R.Crim.P. legiti- shrift to giving are not short We part, evant in with- Abeln mate interests (b) not with- for defendant Counsel appellant was court that He told the drawal. except by appearance her draw his or the trial helping prepare for adequately not granted leave shall be leave of court. Such Time and paid him in full. not and had served on the only upon motion made and concerns recognized that financial and the attorney for the Commonwealth See, e.g., may justify withdrawal. alone client, justice other- unless the interests of case, however, has Sweeney, supra. In no require. wise a waiver of counsel. amounted to withdrawal Furthermore, importance added). we have noted rec- (emphasis The Pa.R.C.Pr. miti- efforts to attorney’s affirmative of an appellant was no indication that ord reveals Swee- or her client. See to his gate prejudice attorney’s intention notice of his ever served Sweeney, As we stated merely ney, supra. not notification is Such to withdraw. factor, attorney Judgment interests of the one vacated. sentence Remanded simply and in the instant case it not new relinquished. for a Jurisdiction enough justify withdrawal. STEVENS, Dissenting opinion by J. emphasize that we do not that in hold
every case where a defendant is STEVENS, Judge, dissenting: improper. withdrawal is Notice can be ac- Majority, thorough The after careful complished without verbal communication. consideration, Appellant, concludes a fu- Further, permits, appointment when time absentia, gitive who was tried in not did replacement proper. We are counsel, validly waive his and the that, simply holding ease-by-case under the vacates the of sentence inquiry required by Sweeney, the facts at bar respectfully and remands for a new trial. make improper. withdrawal dissent. Additionally, we find that the lower court charged with five counts erred when in not appointing new counsel Delivery Cocaine, May, and in dismissing after Attorney Abeln. Appellant. counsel was At the 316(c) provides: R.Crim.P. request Appellant, approved court-appointed the withdrawal of Assignment
Rule 316. of Counsel and allowed (c) In all cases
(i) court, Approximately weeks its own two shall selection, assign represent found a defendant to have whenever crack-cocaine in require possession the interests of and in viola- it. probation. point, tion of his Appel- At this 316(c) added). (emphasis Pa.R.Crim.P. In an jurisdiction lant fled the and a warrant was *6 context, we held that under this for his issued arrest. rule, justice required the of interests lower Appellant jury then failed appoint counsel when an selection on private March and his could longer private rep- no afford counsel’s permitted was counsel to withdraw on the right. resentation on his first of Appellant private basis that his owed Sweeney, 45-47, at at Appellant’s substantial fees and that absence right As the to counsel at is at preparation hindered for trial. At all times more, important, least as if not than that on hereto, Appellant relevant was aware of the appeal, requires conclude that Rule we jury date for selection and trial. appointment the fugitive’s of counsel when a private counsel is dismissed. juryA trial was held on March presence Appellant, Ap- without the and conclusion, try In that reiterate pellant was all charges convicted on five without defendant re delivery substance. controlled At quires knowing intelligent waiver of sentencing, Appellant time of was defendant’s counsel. This true custody, representation, declined and filed even when a defendant tried in absentia se, post-trial timely motions motions 302(b). pursuant to Rule No such waiver which were denied. Counsel subse- appel occurred and therefore quently appointed Appellant and this rights process lant’s due were violated when peal followed. he was tried in his absence without counsel. This violation a direct respectfully disagree result of the trial I with the conclusion ruling granting Attorney court’s Appellant’s process erroneous of the due withdraw, Abeln’s motion as rights as well were violated he was tried in appoint pursuant representation by court’s failure absentia without an attor- Accordingly, appel ney. to Rule contrary, we vacate To the the trial court was at lant’s sentence for a all rights and remand times sensitive to the constitutional Appellant. new trial. Counsel was at the legal system. for the entire permitted the trial court but request Appellant, counsel was a crimi- dangerous precedent to allow at the It is a to withdraw and new counsel retained system in manipulate the Appellant, and counsel was of- nal defendant and to by Appellant during sentencing hearing at done so fered which the manner justice yet Appellant representation. fugitive from declined become a trying the subsequently appointed for this from prohibited Counsel was trial court short, all appeal. In was afforded criminal defendant in absentia. rights his constitutional and chose to not conclusion, full well the Appellant knew In jur- probation, violate his but to then flee the probation, of his violation of consequences of despite knowledge isdiction his se- fugitive jurisdiction, of his flight his from the begin. lection was about to status, Appel- a trial in absentia. and of case, Appel- Under the facts of the within disregard for show a blatant lant’s actions voluntarily changed attorneys lant and at one justice system, criminal point voluntarily proceeded pro se. Based on with a new trial. should not be rewarded Appellant, the over-all actions of the mere the lower court affirm the order of would permitted to fact that his counsel was denying post-trial motions. prior
withdraw to the trial in absentia is fact, flight from irrelevant.
Appellant prevented privately his own re- preparing
tained counsel from defense so absolutely prejudice Appel-
there was no permit-
lant the fact that his counsel was Rather,
ted to withdraw responsible should be held for his knowingly pro- own actions when he violated LIFE INSURANCE CONFEDERATION knowingly proceeded bation and then to be- COMPANY, Appellee, justice. come a Although Appellant to the assis- is entitled every stage” “critical tance PROPERTIES, L.P. and MORRISVILLE prosecution, in criminal the instant case he Inc., Appellant. Development, Site pri- opportunity had a “reasonable to secure Superior Pennsylvania. Court choosing.”
vate counsel of his own See Com- *7 Gray, monwealth Argued March is not a The within case July Filed case which was denied opportunity turned down the have court counsel and fact had counsel. All the
retained own
requirements of the Sixth Amendment to the pertaining
Constitution the United States met.
to the assistance counsel were
Clearly, when a defendant fails to cause, he or she without v. Sul
tried in absentia. Commonwealth lens, (1992); Com — Wilson, Pa.-,
monwealth (1998). Here, Appellant knowingly put at a time
himself into a status strongly begin. was about to
selection
disagree decision to re- light Appellant with a new trial
ward mocking disregard for not
Appellant’s