# Commonwealth v. Sullens > Supreme Court of Pennsylvania · November 19, 1992 · 533 Pa. 99 URL: https://www.frixlaw.com/law-library/cases/9747273 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Dominick W. SULLENS, Appellee - **Court:** Supreme Court of Pennsylvania - **Decided:** November 19, 1992 - **Citations:** 533 Pa. 99; 619 A.2d 1349; 1992 Pa. LEXIS 557 - **Precedential status:** Published - **Opinion:** Dissent by Zappala - **Judges:** Gappy, Nix, Larsen, Flaherty, Zappala, Papadakos, Cappy - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9747273 ## How later opinions describe it (automated extraction) - stating that a contrary rule would allow an accused at large upon bail to immobilize the commencement of trial and frustrate an overtaxed judicial system until the trial date meets with her pleasure and convenience - holding that where a defendant failed to appear at trial, he waived the right to be present because there was no question that defendant knew the date of the proceeding - holding that it was proper for trial to commence in absentia when the defendant failed to appear on the day his trial was scheduled to begin - holding that “when a defendant is absent without cause at the time his trial is scheduled to begin, he may be tried in absentia” - holding that it was proper for trial to commence where appellant failed to appear on the day his trial was scheduled to begin ## Opinion text ZAPPALA, Justice, dissenting. I join in Justice Cappy’s Dissenting Opinion but write separately to emphasize the inequities of the majority’s ruling. It has always been my view that the law is fair and impartial, favoring neither the prosecution nor the defendant. But, today, the majority fosters injustice by holding that an accused who is absent without cause on his date of trial, may be tried in absentia. Citing court timeliness, scheduling, and judicial respect, the majority punishes the careless or willful defendant who fails to appear. Yet, this same majority fails to consider the instances where the prosecutor neglects to appear “without cause.” *107 Surely, court timeliness, scheduling and judicial respect are also at stake in these circumstances. However, we do not consider waiving the prosecution’s right to try the defendant as an appropriate punishment. In Commonwealth v. Carson, 510 Pa. 568 , 510 A.2d 1233 (1986), we held that the lower court abused its discretion in sua sponte dismissing charges against the defendant when the prosecutor failed to timely appear for trial. As a basis for our holding we stated: The failure of a party to appear at a scheduled time must involve more than a mere failure of time; the failure must involve a failure of justice or prejudice to a defendant to justify the discharge of a criminal action. When such interests are not involved, the offending party may be otherwise sanctioned without defeating the public interest. 510 Pa. at 572 , 510 A.2d 1235 . I cannot accept the double standard that this court continues to adopt. If a defendant or his counsel fails to appear, sanctions are now imposed. He effectively loses the greatest of all rights, that being the rights which are afforded him by the Pennsylvania State Constitution. However, if a prosecutor fails to appear, we require a showing of prejudice. It has always been said that although we strive to achieve a perfect trial, the most that we can hopefully obtain is a fair trial. If the process is not fair, however, then the exercise has been futile. If prejudice is a material issue when the prosecutor fails to appear, then the same standard should be applied to a defendant. CAPPY, J., joins this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747273. Public record. Not legal advice.