*1 a Howell, (1904), In Landreth v. Ct. Pa.Superior a tract of land described metes master in sold partition acres, which was to contain six represented and bounds less, land, $2,500 more or at three roods and eight perches been conveyed, acre. About a after title had per year of two thirds of an acre. The disclosed a survey shortage an action in to recover assumpsit grantee thereupon brought In the of the consideration absence portion paid. and a fraud, compul- there could be no recovery; evidence non-suit was entered. sory properly case, had purchased
In the instant appellants title to a of land estimated to contain 10.4 accepted parcel tract had not been acres, purchased by more or less. The no acre, regarding and there had been guarantee Indeed, the of land which the tract contained. quantity it had been to indicate quantity qualified hint of slightest more or less. There was present circumstances, were not enti fraud. Under these appellants tled to recover a because a portion purchase price disclosed that the tract contained made after survey closing 8.163 acres. only affirmed.
Decree
Robert Andrew Pennsylvania. Superior Court Argued May 1981. May
Filed 1982. Sept. Appeal for Allowance of Denied Petition *2 Podel, for Philadelphia, appellant. Louis Tennis, District Philadel- Attorney, Garold E. Assistant Commonwealth, for phia, appellee. WICKERSHAM, McEWEN, WIEAND and JJ.
Before McEWEN, Judge: trial judge here contends that the
Appellant-defendant when the trial constitutional to an denied his from and escaped after the defendant had judge, months, dismissed the post-trial while a for fourteen fugitive and, this contention defendant. We reject motions of the therefore, affirm. on March aby jury
The defendant was convicted after a trial in and criminal burglary conspiracy robbery, Pleas Even though the Common Court. Philadelphia County failed to file motions with the timely the defendant had trial the verdict of the following guilt, Common Pleas Court leave to the of the defendant for petition judge approved motions were file motions nunc tunc. Those pro filed on 1978and scheduled for the April presentation oral on June argument the defendant had and was escaped prison
Since on fugitive June the scheduled date of argument, the trial continued the date until further judge argument took no notice but other action.1 The record reflects that when the of oral presentation 26, 1978, was on next scheduled argument September fugitive defendant still a and failed to as a appear, result of which the directed judge trial that a bench warrant issued that sentence be deferred pending apprehens ion.2 therefore, that while the trial appears, judge simply
continued motions when argument upon first 15,1978, listed on June the trial addressed judge specifically status of defendant at fugitive listing the second on September (1) issue a bench proceeded *3 warrant and also defer sentence until (2) the was appellant The court at apprehended. action the this second listing made clear that no would sentence be deferred for longer Rather, the motions. the court directed that argument upon the next in proceeding the case would be for the purpose sentence, once the defendant was in imposing custody. obvious, therefore, It is that the court considered the escape and the defendant to constitute a waiver of the flight by that, outstanding motions and deemed the motions thereby, were concluded. defendant,
The after some fourteen months as a fugitive, was returned to his surren- finally custody, by voluntary his der but When the court the by apprehension. imposed sentence on the that court stated the January writing April entry Information No. has an in which Judge reads: “6-15-78 Room 653 ... J. T. McDermott ... Post-trial Motions further C.F.N. until [continued notice].” above, 2. The information in footnote mentioned has a second and entry signed writing immediately entry, which follows the first and appear]—Bench reads: “9-26-78 Defendant F.T.A. War- [failed By pending apprehension. rant issued—Sentence further deferred McDermott, the court. J.” had waived his motions reason of his appellant and The court directed the defendant to serve escape flight. a term of from ten to for and a twenty years robbery consecutive term of from five to ten for and years burglary, suspended charge sentence on of criminal conspiracy. that the the trial Appellant contends refusal of judge consider the merits motions was denial of his constitutional to an right appeal. Appellant specifically V, 9 of the argues Article Section Constit ution3 guarantees and that his appeal intentional, and not an continuing flight intelligent waiver of this constitutional The knowing right. Pennsylva V, nia has not viewed Article 9 as an Supreme Court Section obstacle to the of dismissal which we are here called type dismissed, to review since that itself sua upon very Court sponte, it, before where the appeal proceedings pending appellant had become and remained a fugitive subsequent the time that had filed the with submitted briefs to the Supreme Court. Commonwealth v. Tomlinson, 467 Pa. 254 (1976). Our Supreme had, earlier, Court one just year discussed this issue in 309, 311-12, 460 Pa. Galloway, 741, 743 (1975):
The rationale behind dismissal of an appeal while a con-
victed defendant
is a
rests
fugitive
justice
upon the
inherent discretion of
court to refuse to hear the claim
any
who,
of a
has
himself
litigant
by escaping,
placed
beyond
and, hence,
and control
the court
jurisdiction
not be
to the
responsive
judgment of the court. See
States,
Smith v.
United
3. Article Section record; right appeal There shall be a in all cases to a court of appeal there shall also be a from a court of record an or from agency court, appellate administrative to a court of record or to an law; provided by the selection of such court is to be and there shall rights may provided by be such other as law.
195 We thus see that the Court has Pennsylvania Supreme been to view of the constitution as disposed any provision reason it from dismissal of an of the precluding appeal by Nor has this court been escape appellant. flight Albert, so inclined. 393 Pa.Super. Commonwealth 260 A.2d 991 (1978); Commonwealth v. 244 Boyd, Pa.Super. Barron, 366 (1976); A.2d 934 237 Pa.Su- 369, 352 per. (1975).
No more sound nor more authoritative rationale can be our eminent and distin- provided provided than by Price, in guished Judge A. Common- colleague, Gwilym wealth v. Barron, when he from two supra, quoted opinions which, of the United Court Supreme States interestingly enough, though apart, reflect a century consistency view by upon Court this issue:
No persuasive reason exists this Court should why proceed to the merits adjudicate criminal case after convicted defendant who has sought review escapes him restraints to the commis- placed upon pursuant sion. While such an does not strip case of its character an adjudicable as case for we controversy, be- lieve it disentitles the defendant to call upon resources of the Court for determination of his claims. Molinaro v. New Jersey, 498-99, S.Ct. L.Ed.2d 587-88 (1970). is within our discretion to refuse to clearly hear a error,
criminal case in unless the convicted party, suing writ, out the is where he can be made respond to any judgment we render. In this may case it is admitted that the plaintiff in error has escaped, and is not within the control of below, the court either actually, by being or custody, constructively, being out on bail. If we affirm the he is not judgment, likely appear submit to his If sentence. we reverse it and a new trial, order he will not, or appear as he consider most may for his interest. such circumstances, Under we are not inclined
196 what prove
to hear and decide to be a moot case. may only States, 94 at 24 (1876). Smith United L.Ed. 32 of sentence affirmed. Judgment WIEAND, J., has filed dissenting opinion.
WIEAND, Judge, dissenting: I dissent. It is one to respectfully thing post-ver- dismiss dict when a motions defendant is not within the custody Court, control of the but it is another matter to quite refuse to post-verdict consider undismissed motions at a time when the defendant has been returned to and thus to the Court’s and control. power instant involves
The
motions in the latter
post-trial
on
posture. Argument
post-trial motions had been contin-
ued
but
had not been dismissed
generally,
they
to
prior
time when
The
mo-
recaptured.
tions, therefore, remained viable but undecided after appel-
lant
to the
subject
jurisdiction
was once
of the trial
court and could be made to
respond
any judgment
circumstances,
court
enter. Under such
both the
Court of
and this Court have held
Supreme
that the
is
defendant
entitled
have his
motions
decided on their merits. See Commonwealth v. Galloway,
460 Pa.
741 (1975);
Albert,
Commonwealth v.
(1978);
The reason for this distinction more becomes readily ap- if we consider the situation in which an parent hypothetical is within a few hours of his escapee re-captured escape. defendant, judgment, Such could not my properly held have forfeited to obtain a review of judicial post-verdict motions at the time of his pending is escape. not the which the continues that is period during Rather, however. it is whether controlling, post-verdict motions have been dismissed in which the during period control of the court outside the custody defendant was determinative. which is *6 law, appel- the merits of state present
Under considered, and have been motions should lant’s post-verdict them out of hand to dismiss of discretion it was an abuse thus been returned had after and control. power to the Court’s record to the trial remand the reason, this I would For the merits of appellant’s to consider court with directions motions. COMMONWEALTH MIELE, Jr., Appellant. A.
Louis Pennsylvania. Superior Court June 1981. Submitted May Filed