# Commonwealth v. Sullens

> Supreme Court of Pennsylvania · November 19, 1992 · 533 Pa. 99

URL: https://www.frixlaw.com/law-library/cases/9747274

## 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 Gappy
- **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/9747274

## 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

GAPPY, Justice,
dissenting.
I dissent. The majority holds that a trial in absentia may be conducted where a defendant is aware of his trial date and willfully absents himself from trial without cause or justification. The majority further holds that the record in the case sub j'udice establishes beyond any doubt that appellee had *108 notice of his trial date “due to his admission at sentencing that he knew of his February 27, 1989 trial date ...” I disagree.
Notice of his trial is absolutely necessary to support a finding that appellee willfully absented himself from trial without cause or justification. In support of its finding that appellee had notice of his trial date the trial court stated:
The defendant admitted that the reason for his absence from trial was fear of a guilty verdict. The record indicates that the defendant’s attorney at the time gave the defendant written notice of the trial date. This Court also notes that the defendant was incarcerated from at least January 12, 1989 (the date he signed the Waiver of Jury Trial) to February 13, 1989. The trial date was set and defense counsel was notified of that date on January 12, 1989. The defendant also knew he would be scheduled for trial soon but made no inquiry to ascertain his trial date.
Opinion p. 7.
Based upon these reasons, I believe that there was no way the trial court could have known whether appellee had notice of the trial date when it ordered trial in absentia. Nevertheless, the majority concludes that the insufficiency of this evidence is irrelevant, because appellee admitted at sentencing that he knew of his trial date. However, such evidence cannot cure the insufficiency of the evidence before the trial court at the time it found appellee had notice of his trial date, and had willfully absented himself.
Clearly, the mere representations of appellee’s counsel that he had mailed notice of the trial date to appellee, without knowledge of whether appellee had, in fact, received such notice, cannot serve to support a finding of the requisite notice. The majority's need to resort to reliance upon appellee’s admission at sentencing further supports the insufficiency of the evidence when the trial court issued its order.
Therefore, I would hold that in the absence of uncontrovertible proof that appellee had notice of the trial date, the trial court was precluded from finding that appellee willfully absented himself from trial without cause.
*109 Accordingly, I would affirm the opinion and order of the Superior Court, which found that the trial court erred in trying appellee in absentia, and remand for a new trial.
ZAPPALA, J., joins in this Dissenting Opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747274. Public record. Not legal advice.