Commonwealth v. Lines
609 A.2d 832
Pa. Super. Ct.
1992
Check Treatment

*1 the consumer the pursue against his claim automobile manufacturer need simply but refrain from al- tering restricting the definition provided legisla- ture. Thus it is that I would vacate the order granting summary judgment. Pennsylvania

COMMONWEALTH of LINES, Appellant. Lawrence Superior Pennsylvania. Court of

Argued Feb. Filed June *2 Zeitz, Philadelphia, appellant. A. for Glenn Harris, Warrington, Dist. for Stephen Atty., B. Asst. Com., appellee. HOFFMAN, OLSZEWSKI, JOHNSON, and JJ.

Before OLSZEWSKI, Judge. rendered of sentence judgment

This is an from Pleas of Bucks 19, 1991, the Court of Common July on 10, 1986, appel- on Following a trial October County. jury murder, receiving stolen first-degree lant convicted Appel- apprehension.1 to hinder conspiracy property, delibera- jury from the courthouse lant absconded warrant was issued tions, and on 1986 bench October 20, 1986, re- appellant while for his arrest. On October and in motions for new trial large, mained at behalf. In appellant’s filed on arrest of judgment these quash filed a motion to response, According to the fugitive status. appeals appellant’s due to entries, trial court never acted and docket record remained quash. Appellant motion to the Commonwealth’s In 1986. Febru- from until December justice filed addi- retained new counsel who appellant ary numerous hear- evidentiary motions. After tional Appel- denied on 1991. May these motions were ings, 19, 1991, on imprisonment July to life lant was sentenced this followed. issues for our consideration.2 three Appellant presents Commonwealth, however, additional proposes the Appellee robbery. acquitted of Appellant Specifically, appellant asks us to review: argument that the trial court erred by denying its motion to quash appellant’s “appeal” since was a at the time justice post-trial motions were filed.3 The heart of the Commonwealth’s assertion challenges our abili- to exercise ty appellate review of this case. For the rea- below, therefore, sons appeal; we will not attend to of appellant’s arguments. the merits case, present judge the trial chose to pospone ruling appellant’s post-trial motions, first set of and did respond to the quash. Commonwealth’s motion to In stead, once was returned to custody, the trial appellant’s court allowed counsel to file new additional post- trial motions and later denied these motions on other sub grounds. stantive Pennsylvania case law indicates that a and, therefore, trial court is without discretion must dismiss *3 motions as long as a defendant Commonwealth v. fugitive. 315, 318, Pa.Super. 300 denied, 633, 446 cert. 942, A.2d 634 496 U.S. 110 3229, (1990); 110 Commonwealth v. Al S.Ct. L.Ed.2d 675 bert, 20, 22, 991, 260 Pa.Super. Com (1978); Boyd, monwealth 98, 100, (1976). find Accordingly, we that the trial erred judge to act by failing on the Commonwealth’s motion quash. to (1) Commonwealth, attorney closing Whether the in his presentation, continuously expressed personal opinions his deprive appellant evidence so as to of a fair trial. (2) prosecutorial Whether the Commonwealth committed miscon- failing exculpatory concerning duct in to disclose evidence its star witness, rules, failing comply discovery failing to with the to witness, perjured testimony requiring correct of the star thus a new trial. (3) appellant Whether was denied effective assistance of counsel hearsay when defense counsel allowed the admittance of statements objection, properly prepare without failed to for trial and conduct independent investigation, an defense failed to utilize character testimony, develop present witness and failed to a coherent and cogent theory of defense. Appellant’s brief at 2. was, quash appellant’s "appeal’’ 3. The Commonwealth’s motion to actuality, attempt appellant’s post-trial have to motions dismissed point proceedings, due to his status. At this in the notice of appeal yet lodged. had not been Court, With to regard powers of this case law has appellate appellant evolved which bars review where an has jeopardized rights by becoming See Passaro, (1984); Commonwealth v. (1986) J., (Olszewski, 514 A.2d 896 dissenting), re

versed, (1988); 550 A.2d 1317 Commonwealth v. — E.D.1990, Pa.-, No. Passaro, appellant Commonwealth v. was a the appellate level since he following filing of brief, oral argument. but before 613-614, Thereafter, Pa. at 476 A.2d at 347-348. the Com- monwealth’s motion to granted. Id. Following his apprehension, appellant petition filed a his appeal appeal, reinstate which was denied. Id. On dispute did not of the dismissal of propriety appeal, but rather asserted his right appellate rein- apprehended. statement once The Passaro Court acknowl- edged appeal guaranteed Article section by Constitution, of the Pennsylvania but added that “... is conditioned upon compliance with the Court, procedures by established and a defendant who chooses to deliberately bypass orderly procedures af- forded one convicted of a crime for challenging his convic- consequences tion is bound of his decision.” Id. Reasoning had exercised his right by escaping, which he then forfeited our Supreme Court appellant’s petition held that for reinstatement properly denied. Id. Passaro case has become the basis *4 subsequent decisions concerning fugitive effect of sta- upon appellate rights. tus

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

Finally, banc decision to recently affirmed this Court’s en fugitive during of an who was a appellant charged was with appellate process. Appellant, who rob- selection conspiracy, escaped jury and criminal when bery — completed. had not yet had commenced but been -, tried and Appellant Pa. at 610 A.2d at was absentia, convicted, 1117(a) pursuant to Pa.R.Crim.P. that “defendant’s absence without cause provides which proceeding including with the trial preclude shall not Jones, —, of the verdict.” at 610 A.2d at return large, post-verdict remained at appellant While merits, sentenced, petition on the he was were denied timely appeál was denied arid a notice for reconsideration Later, Id. apprehended while was filed. Id. Supreme The issue before our pending. had forfeited his Court was whether response, becoming justice. rights by held that: se forfeiture escape per A acts as a voluntary defendant’s where the rights appeal, of of his com- post-trial proceedings time any forfeiture is irrevocable and continues mence. Such a return to voluntary or despite capture Thus, choosing justice, appel- to flee from custody. appeal. lant has forever forfeited *5 added). Instantly, Jones, at-, (emphasis A.2d at delibera- jury courthouse from the after the months fugitive a for two and remained tions under the Accordingly, motions. post-trial of his filing forfeited his has “forever of direction post-trial after a electing to become appeal” by begun. have procedures our espoused by

Following the rationale in developed the Lueken- subsequently in and Passaro decisions, precluded are find that we and Jones baugh appel- quash and arguments reviewing appellant’s appeal.4 lant’s quashed.

Appeal

JOHNSON, J., dissents.

JOHNSON, dissenting. Judge, I dissent. respectfully case, Lines Lawrence deliberating jury

aWhile Lines was County Bucks Courthouse. from the absconded murder, sto- receiving first-degree in absentia convicted apprehension. hinder While conspiracy to and property, len for a new trial motions large, post-trial Lines remained filed on behalf. judgment arrest those filed a motion the Commonwealth response, that Lines had become grounds on the motions Lines until December Lines remained who filed additional new counsel obtained 23, 1991, after numerous evidentia- May On behalf. Lines’ motions. court denied the trial hearings, ry The trial court imprisonment. sentenced to life Lines was to quash. motion the Commonwealth’s acted never — Pa.-, (Pa. 4. See also, Judge, any 1992) rights appellate view of claims (Appellant forfeited days sentencing. Since this custody by escaping from two error however, case, Supreme Court reviewed the penalty was a death mandated appellant’s sentence as sufficiency of the evidence 9711(h).). § 42 Pa.C.S.A. a defendant is when first concludes Majority *6 and, therefore, discretion court “is without a trial fugitive, long as as a motions post-trial must dismiss a defendant’s 440. For this Opinion at Majority fugitive.” defendant is Boyd, v. upon relies Commonwealth position, Majority (1976), v. 98, A.2d 934 Commonwealth Pa.Super. 244 366 (1978), and 20, Com 393 Albert, Pa.Super. 260 315, 446 A.2d 633 Pa.Super. 300 v. monwealth 3229, 942, 110 denied, 110 S.Ct. 496 U.S. (1982), cert. 675 L.Ed.2d that case law “bars also concludes Majority

The rights by jeopardized has an where review In reach- Opinion at 441. Majority becoming fugitive.” conclusion, upon relies Common- Majority ing (1984), Com- Pa. 476 A.2d wealth v. 355, 514 A.2d Pa.Super. v. monwealth (1988), and 550 A.2d 1317 (1986), reversed 22, 564 A.2d 983 v. — Pa.-, (1992) (193 E.D. (1989) affirmed 1992). May filed Docket Appeal In my Opinion. join Majority myself I find unable may be go beyond, view, propositions the Majority’s The cases cited law. to, Pennsylvania established contrary Majority. asserted position for either do not stand of a addressing powers cases reviewed Having carefully in cases rights of review or reinstate to dismiss court ad- may that a trial court I conclude fugitives, involving of a defen- motions on behalf of post-trial the merits dress in the court’s jurisdiction to the has returned dant who I dissent. Accordingly, its discretion. exercise of Galloway, In Commonwealth that there is no basis held escapes who appeal by dismiss an a deci- before jurisdiction to the court’s returns appeal but rationale, that court remand- same On the is rendered. sion motions post-trial for consideration trial court ed to the earlier Galloway’s on the basis denied originally appre- had been though Galloway status even stands for Galloway denial. to that prior hended review pending dismiss a is not to a court proposition longer is no a defendant where 98, Boyd, In Commonwealth in the may, court that a trial (1976), this court held re- post-trial discretion, refuse to reinstate exercise of its defendant's behalf on the motions filed where the view not confronted were in his absence. We dismissed dismiss court must a trial with whether us was whether before question defendant. of a discre- review was reinstatement trial court’s Hence, I do not subscribe so. found it to be tionary; we authority as this case reliance the Majority’s *7 the to dismiss required court the trial was that proposition review. pending 20, A.2d Albert,

In Commonwealth to a and continued be (1978), escaped defendant that quashed pending. We appeal was fugitive while continuing fugitive the defendant’s on the basis of appeal that, Galloway, to pursuant and stated dicta status returned to had Albert proper have been review would Again, we disposition. time of prior to the court’s control the trial of whether question confronted with the not in the defen- to dismiss compelled court or this court in the Thus, join to I am also unable dant’s absence. that the proposition Albert for the upon reliance majority’s in the to dismiss compelled trial court was instant case. 315, Clark,

In Commonwealth denied, 496 110 S.Ct. (1982), U.S. cert. refusal to a trial court’s (1990), affirmed L.Ed.2d 675 of discre exercise proper motions as a reinstate be Albert, properly may Clark Like Boyd tion. must the trial court that proposition upon relied continues the defendant motions where pending dismiss this court. issue was not before that Simply, be a Supreme this court decided years Two Pennsylvania powers once addressed again courts to dismiss cases based status. Passaro, Commonwealth v. 504 Pa. the Court reviewed decision of this court to quash Passaro’s appeal basis that he had appeal while his pending before this court. Passaro had returned to Pennsylvania following this court’s dismiss- al of his appeal, petition he filed for reinstatement. This petition. court denied that

Passaro appealed Supreme Court, to our contending that right appellate review, is guaranteed by which Article 5, section Constitution, Pennsylvania could not be escape. waived by Our Court held even though right guaranteed by the Pennsylva- Constitution, nia is conditioned upon compliance with

[T]he the procedures by Court, established and a defendant who deliberately bypass chooses to the orderly proce- dures afforded one convicted challenging crime for his conviction is bound consequences. at 476 A.2d at 348. The Court held fact that a defendant is recaptured subsequently “[t]he provides no basis for disturbing an dismissing order ... who escape elects to [A] custody Id., forfeits to appellate review.” added). 476 A.2d at 349 (emphasis The Passaro court on to state: went *8 does challenge the fact his escape that [Passaro] justified the initial of quashing the Thus appeal. question is not whether he should be stripped of escape, of because of but rather whether his apprehension, assisted, which he in no way should entitle rights him to already forfeited. canWe ascertain no logic in or reason which would any policy support such a conclusion.

Id., 616-17, at at 476 A.2d also, See Common- — Pa.-, Judge, wealth v. 609 A.2d (1992). 785

As in in Boyd the issue Passaro concerned the already reinstatement review dismissed and as a of

447 Each of those cases escape. of the result to his is have that a defendant not entitled determined escaped. he has reinstated where review 356 Luckenbaugh, Commonwealth filing (1986), had A.2d 896 the defendant on basis that to sentence a motion reconsider rec- prior had calculated sentencing judge erroneously had the trial court ord score. This court determined that to reconsider dismissed the motion because properly Nevertheless, noted that defendant was then a we jurisdiction, the defendant had returned to presented to the merits of the issues address proceeded be waived. that the sentence could not legality the basis 1,n. at Pa.Superior Ct. Luckenbaugh, n. 1. my argued,

The in to dissenting opinion Luckenbaugh that, cannot legality while the sentence correctly, view waived, Passaro, any may under defendant be forfeit to review while that review by escaping entitlement pending. granted Luckenbaugh Court review per in a curiam one line order:

decision and reversed reversed. See Common- Superior Order of the (1984). Pa. 476 A.2d wealth v. A.2d 1317 Luckenbaugh, Jones, Finally, — Pa.-, 564 A.2d affirmed empowered are (1992), this court considered whether we by the which were dismissed reinstate was then at grounds that the defendant trial court on Supreme Court’s given our large. We determined lacks court in Passaro and decisions Ct. at Pa.Superior power. such Jones, Passaro and Lucken- considered Having carefully support proposition glean any I am unable baugh, an where court cannot review where trial prior was a Rather, if those motions. court not dismiss did *9 cases tell anything here, us applicable that, it would be as court, appellate we should not interfere with the trial court’s decision to discretionary address a fugitive’s former post-trial motions on the merits.

The cases relied fail Majority support either that a trial court must dismiss a post- trial if the defendant fugitive, becomes a or that this court no power has to hear an a judgment of against sentence rendered a defendant who was a fugi- tive prior where the trial court has not dismissed motions. of Both these propositions are re- quired in order to reach Majority’s conclusion that we are unable to render review the issues present- ed. reject

I the Majority’s determination because Lines absconded during the proceedings court, before the trial both that court and this prohibited court are from reviewing Instead, merits of Lines’ I issues. would hold that the trial court’s refusal to act upon the Commonwealth’s motion to dismiss is to be reviewed on an abuse discretion standard. Boyd; applied case, Clark. As to this I Cf. would conclude that trial court has not abused that discretion; therefore, I would address Lines’ outstanding issues on Having the merits. considered the arguments presents which Lines’ brief, in his I conclude that these issues him would afford no relief. I Accordingly, would affirm the judgment sentence. reasons,

For the forgoing I dissent.