In the Interest of J.J. , 447 Pa. Super. 259 ( 1995 )

OLSZEWSKI, Judge,

dissenting:

In this case, the majority concludes that we should exercise our discretion to hear the merits of J.J.’s appeal. In doing so, the majority focuses overwhelmingly on the lack of disruption to the appellate process, and minimizes what the majority concedes was JJ.’s “contemptuous behavior.” Majority opinion at 265-270. Because I disagree with this analysis which essentially ignores J.J.’s “contemptuous behavior,” I must respectfully dissent.

After J.J. was adjudicated delinquent for possessing while intending to deliver a controlled substance, he filed a direct appeal to this Court. While this appeal was pending, J.J. escaped from St. Gabriel’s Hall, the juvenile facility where he had been committed. J.J. remained at large for about a month until police captured him; he was driving a stolen car. After .JJ.’s return to custody, the Commonwealth asked us to quash his appeal. Because the appellate forfeiture rule required it, we quashed the appeal in a per curiam order. See Commonwealth v. Jones, 530 Pa. 536, 540, 610 A.2d 439, 441 (1992) (once post-trial proceedings commence, defendant’s voluntary escape acts as a per se and irrevocable forfeiture of his right to appeal).

Our Supreme Court granted allocatur and overruled the mandatory application of appellate forfeiture as articulated in Jones. It traced the appellate forfeiture rule’s evolution in this Commonwealth, and reconsidered its underlying purposes. When a convicted defendant escapes and remains at large, we may properly refuse to hear his appeal; by escaping, the defendant has placed himself beyond the court’s jurisdiction and control, and may not be responsive to its judgments. In the Interest of J.J., 540 Pa. 274, 276-277, 656 A.2d 1355, 1356 (1995) (citing Commonwealth v. Galloway, 460 Pa. 309, 311-12, 333 A.2d 741, 743 (1975)). This consideration no longer applies when the fugitive has been returned to custody.

Caselaw provides two other reasons for quashing the appeal of a returned fugitive: because the escape disrupts the appellate process, or constitutes an affront to the appellate court’s dignity. Our high court reaffirmed these reasons for the appellate forfeiture rule, but held that forfeiture should be discretionary-, not mandatory:

[A]n appellate court should retain the discretion to consider and to reinstate the appeal of a fugitive upon his return to custody. We trust that the judicious exercise of this authority will insure that the functioning of the appellate process will not be impeded and the dignity of the courts will be guarded. This approach will permit the court to protect the appellate process while considering the interest of a defendant in pursuing his appeal.

Id., 540 Pa. at 288, 656 A.2d at 1362. The Supreme Court remanded to allow us to consider the equities of J.J.’s case, and exercise our discretion as to whether we should entertain his appeal. Id. at 289-291, 656 A.2d at 1363. How to exercise this discretion is a matter of first impression for the Superior Court.

For guidance, our Supreme Court has referred us to its recent analysis in Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1, cert. denied, — U.S.-, 115 S.Ct. 327, 130 L.Ed.2d 287 (1994). Kindler noted that federal precedent approves of the principle underlying appellate forfeiture — that “one who invokes the jurisdiction of a tribunal and then flees has voluntarily waived or disentitled himself to call upon the resources of the Court for a determination of his claims.” Id. at 228, 639 A.2d at 3 (citing Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586, 587-88 (1970)). The Kindler Court chose to adopt the narrower federal application of this principle, whereby only that court whose dignity is affronted by a defendant’s escape may sanction the defendant for the escape. Id. (citing Oviega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993)); see also Commonwealth v. Huff, 540 Pa. 535, 658 A.2d 1340 (1995).

The language of Kindler does not specify how a court must respond to an escape. Rather, a court has “every right to fashion an appropriate response,” so long as “the sanction imposed in response to the flight is reasonable under the circumstances.” Kindler, supra. Hence, a defendant who flees during post-trial motions may expect to have the trial court deny those motions; likewise, the customary sanction for an escape during the pendency of an appeal is to quash the appeal. Id. (citing Ortegar-Rodriguez’s description of dismissing the appeal as a “reasonable response”).

I agree with the majority that whether we exercise our discretion to hear or quash a fugitive appeal necessarily depends on a case by case analysis. I also agree that there are a number of relevant factors for a court to consider. I disagree, however, with the majority’s undue reliance on the factor relating to the disruption of the appellate process. As noted in J.J., the exercise of our discretion in these matters is intended to “ensure that the functioning of the appellate process will not be impeded and that the dignity of the courts will be guarded.” 540 Pa. at 287-289, 656 A.2d at 1362. Thus, a disruption, or lack thereof, should not always be dispositive in determining whether we should exercise our discretion to hear a fugitive’s appeal. A court should still consider other factors that relate to safeguarding the dignity of the courts. Two factors that are particularly important are the circumstances relating to a defendant’s escape and return, and the type of claim sought to be raised on appeal. With these standards in mind, I now turn to the specifics of J.J.’s case.

At the outset, I must agree with the majority that J.J.’s escape did nothing to disrupt the appellate process. J.J. had escaped and was returned to custody before the Commonwealth even asked us to quash his appeal. The Commonwealth points out that J.J.’s flight and recapture have injected claims into his appeal other than those he originally raised, and has delayed our disposition to the point where he is almost 18 years old and no longer a juvenile. Commonwealth’s letter brief at 7-8. But it is not J.J.’s fault that our Supreme Court chose his appeal as the vehicle for revising the appellate forfeiture rule, so we cannot hold the resulting delay against him. Hence, I agree that quashal is not justified for this reason.

JJ.’s attitude toward our criminal justice system is a different matter, though. This Commonwealth, like every state in our country, goes to great lengths and expense in order to provide its citizens the best criminal justice system in the world. No other society would afford J.J. the same degree of protection for his rights and liberties. J.J. was caught red-handed with illegal drugs. Our system afforded him counsel, a hearing to argue that Ms arrest and seizure of the drugs violated his constitutional rights, and a full trial where the Commonwealth had to prove every element of the crime charged beyond a reasonable doubt. Then our system afforded him a right to appeal, where he could again challenge the evidence against him and raise his constitutional claims.

Despite these myriad protections, J.J. chose to thumb his nose at the system. Rather than wait for his appeal, where his state-supplied counsel could again try to vindicate his rights, J.J. chose to escape and commit more crimes. He was recaptured one month later, driving a stolen car and possessing stolen property. J.J. has repeatedly shown us what he thinks of the system, and I am hesitant to allow Mm to continue enjoying the benefits and procedural safeguards of an unparalleled criminal justice system just because he was lucky enough to be recaptured.¹ Therefore, the circumstances of J.J.’s escape and recapture militate against allowing this appeal.

This factor, relating to the circumstances of escape and return, will not always be dispositive, however. We must also consider the type of claim that a former fugitive seeks to raise on appeal. If an innocent individual escaped during the pendency of his appeal in order to exonerate himself,² it would be mean-spirited indeed to ignore his claims of innocence because we felt our dignity was offended by the escape. The purpose animating any civilized justice system is the accurate determination of guilt; the procedures we employ must always give due consideration to the possibility of a defendant’s innocence. While it is fitting that a fugitive not be permitted to use our criminal justice system’s extensive safeguards to “beat the system” which he has flouted by escaping, we should never tolerate the conviction of an innocent person. Any concern we might have for upholding the court’s dignity pales in comparison to the dignity we lose when the system permits such a miscarriage of justice. Therefore, a claim that implicates the truth-determining process will weigh in favor of overlooking the affront caused by escape.

In the instant case, J.J. concedes that he was caught with drugs; he only challenges the trial court’s decision not to apply the exclusionary rule to suppress the evidence of his crime. As its critics have often noted, the exclusionary rule thwarts the truth-determining process by suppressing relevant evidence. We utilize exclusion because it is the best way to vindicate our citizens’ constitutional rights, see Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (exclusionary rule’s purpose is to protect the constitutional expectation of privacy, not just to deter police misconduct); but we do not pretend that the exclusion of relevant evidence aids in the search for the truth.

While denying review of a constitutional claim is no small matter, “respect for judicial process is a small price to pay for the civilizing hand of the law, which alone can give meaning to constitutional freedom.” Walker v. Birmingham, 388 U.S. 307, 321, 87 S.Ct. 1824, 1832, 18 L.Ed.2d 1210, 1220 (1967). If J.J. and others like him would enjoy our broad constitutional protections, they should not show contempt for lawful judicial process by escaping from custody during the pendency of their appeals.

As the circumstances of J.J.’s escape and recapture affront the dignity of this Court, and the types of claims raised for review do not implicate the truth-determining process, I would exercise our discretion not to entertain this appeal.

1 . I note that J.J.'s escape can scarcely be characterized as the impulsive act of a child, brought on by homesickness. A mere glance at J.J.'s prior juvenile record and capture in the course of further criminal conduct satisfies us that his escape was not a mere childish whim If anything, J.J.'s status as juvenile strongly weighs against our entertaining this appeal. See In the Interest of K.B., 432 Pa.Super. 586, 589-603, 639 A.2d 798, 800-07 (1994), appeal denied, 540 Pa. 613, 656 A.2d 118 (1995).

2 . Harrison Ford’s recent film The Fugitive comes to mind.