Commonwealth v. Kindler

CAPPY, Justice,

concurring.

I write separately to express my disagreement with the rationale of Commonwealth v. Passaro, 504 Pa. 611 , 476 A.2d 346 (1984), and my continued disagreement with the holding of Commonwealth v. Judge, 530 Pa. 403 , 609 A.2d 785 (1992) (Cappy, J., dissenting). However, I am constrained to concur in the plurality’s present result under the unique facts of the case sub judice.

In Passaro , this Court held that an appellant, by becoming a fugitive after having been convicted and sentenced, had forfeited his right to have his appellate claims considered. While I agree that it is proper to quash the appeal of a fugitive pursuant to Pa.R.A.P. 1972(6), when the individual is still an active fugitive, I would hold that such an appeal may be reinstated in the court’s discretion if, after being returned to custody, the fugitive-appellant can show a compelling reason for having his claim heard. See Commonwealth v. Passaro, 504 Pa. 611 , 476 A.2d 346, 349-350 (1984) (Zappala, J., concurring in the result). In Judge , this Court held that the rationale employed in Passaro extended to individuals who had become fugitives after having been both convicted of first-degree murder and sentenced to death, to the extent that the appellant had waived his right to appellate review of all issues excepting those guaranteed under 42 Pa.C.S.A. § 9711(h), and the issue of sufficiency of the evidence. Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982), cert, denied, 461 U.S. 970 , 103 S.Ct. 2444 , 77 L.Ed.2d 1327 (1983) reh’g denied.

I would emphatically state that Appellant’s absence before sentencing had little or no direct effect on his appellate rights. 1 Though not controlling, the recent United States *243 Supreme Court’s decision in Ortega-Rodriguez v. United States, — U.S.—, 113 S.Ct. 1199 , 122 L.Ed.2d 581 (1993), is persuasive in our analysis. Ortegou-Rodriguez held that the appeal of a fugitive, who had escaped before sentencing, but has since been recaptured, may not be dismissed by an appellate court unless the actions of the accused had some impact on the appellate process. However, under the instant facts, I am constrained to agree that the trial court possessed full authority to dismiss Appellant’s post-verdict motions by virtue of Appellant’s escape and absence while those motions were pending.

However, contrary to my brethren in the plurality, I would expressly hold that the post-verdict motions of an ex-fugitive may be reinstated in the trial court’s discretion if, after being returned to custody, the fugitive can show a compelling reason for having his post-verdict motions heard. This conclusion parallels that of Mr. Justice Zappala as stated in his dissent in Passaro , that the appeal of an ex-fugitive should be reinstated in the appellate court’s discretion if, after being returned to custody, the fugitive-appellant can show a compelling reason for having his claim heard.

FLAHERTY and ZAPPALA, JJ., join this concurring opinion.

FLAHERTY, Justice, concurring.

I join the concurring opinion authored by Mr. Justice Cappy, but would go somewhat further perhaps and require that a compelling reason of the most extraordinary nature be present before the post-verdict motions of an ex-fugitive may be reinstated. Although not present in this case, there could be circumstances which would make mechanical adherence to a per se rule inconsistent with Anglo-American notions of fairness and justice, especially where one has been sentenced to death.

. Appellant’s absence indirectly affected his appellate rights in that it resulted in his failure to preserve issues raised in post-verdict motions which were at that time properly dismissed because of Appellant’s *243 absence. Obviously, an issue not properly raised in post-verdict motions is not properly preserved for appellate review, must be considered waived, and may not be considered on appeal.