Com. v. Johnson, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD JOHNSON :
:
Appellant : No. 2802 EDA 2019
Appeal from the Judgment of Sentence Entered July 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002892-2017
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: Filed: May 27, 2021
Edward Johnson appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his bifurcated non-
jury trial held in absentia. After careful review, we affirm.
In March 2017, Johnson was arrested and charged with aggravated
assault,1 possessing instruments of crime (PIC),2 simple assault,3 and
recklessly endangering another person (REAP).4 The charges stemmed from
a domestic dispute between Johnson and his wife, during which Johnson
allegedly punched his wife in the face several times, hit her with a stool, and
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1 18 Pa.C.S. § 2702(a).
2 18 Pa.C.S. § 907(a).
3 18 Pa.C.S. § 2701(a).
4 18 Pa.C.S. § 2705.
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repeatedly beat her with a baseball bat. Johnson also allegedly dragged his
wife down the hallway of their apartment, attempted to pull off her pants, and
then tried to shove the baseball bat into her anus. See Commonwealth’s
Sentencing Memorandum, 7/19/19, at 1-2.5
Johnson was present in court when his bail was set. At the first trial
listing on June 18, 2018, the parties jointly requested a continuance. Defense
counsel was permitted to accept service for Johnson, who was hospitalized at
the time. At the next trial listing on December 7, 2018, the parties again
jointly requested a continuance and counsel, again, accepted service for
Johnson, who was still hospitalized.
On February 4, 2019, Johnson was present in court for litigation of a
pre-trial motion. At that time, the court scheduled trial to commence on March
11, 2019. Johnson appeared in court on March 11, 2019, at which time he
waived his right to a jury trial. Johnson also appeared for the first day of trial,
held on April 11, 2019, in front of the Honorable Charles Ehrlich. On that day,
counsel gave opening statements and a police officer testified for the
Commonwealth. However, after the officer testified, the assistant district
attorney asked the judge to bifurcate the trial “for the civilian witnesses.” N.T.
Bifurcated Waiver Trial, 3/11/19, at 33. The court granted the
Commonwealth’s request and scheduled the remainder of the waiver trial for
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5 The altercation was witnessed by Johnson’s wife’s nine-year-old
granddaughter, who ultimately ran to a neighbor’s home and asked them call
911 because her “mom-mom” was being beaten by her “pop-pop.” N.T.
Bifurcated Waiver Trial, 3/11/19, at 11-13.
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April 8, 2019. However, the case was again continued, due to a court conflict,
until April 12, 2019. On April 12th, Johnson failed to appear for trial. Defense
counsel represented to the trial judge that Johnson had just been evicted from
his home. Although the Commonwealth moved to proceed to trial in Johnson’s
absence, the trial court granted defense counsel’s request to continue trial
until April 18th. Defense counsel accepted service for Johnson and the trial
court issued a bench warrant nunc pro tunc if Johnson failed to appear at the
next listing.
On April 18, 2019, Johnson failed to appear for trial; defense counsel
stated that he “ha[d] no information to present to the [c]ourt” regarding
Johnson’s absence. Id. at 4. However, defense counsel told the court that
he had “communicate[d] through text message [with Johnson] that [the
judge] wanted him [in court] at 9:00 [a.m.] sharp.” Id. at 4-5. Defense
counsel also informed Judge Ehrlich that he had called and spoken to Johnson
the previous evening to remind him about trial the next day. Id. at 5. At
that point, Judge Ehrlich indicated that he was going to proceed in absentia,
but first permitted the Commonwealth to prove, on the record, that Johnson’s
absence was without cause. Id. After a brief recess, id. at 6, the
Commonwealth presented the testimony of police officer Tanisha Rosario.
Officer Rosario testified that the Commonwealth had asked her to “do a check
of the whereabouts of [] Johnson,” id. at 8, and, that in response, she had
“check[ed]” fifteen hospitals for Johnson, contacted the morgue to make sure
Johnson was not deceased, and also inquired as to whether he was in custody.
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Id. Officer Rosario testified she had spent an hour “on and off” trying to locate
Johnson.6 Id. at 10.7
Following Officer Rosario’s testimony, the court made the following
statement on the record with regard to trying Johnson in absentia:
I find that Commonwealth met its burden to proceed in absentia.
[] I would also note for the record, so it’s clear, that on April 12th,
this case was to be heard and completed at 2:00 p.m. It was
previously started on March 11[], 2019. [Johnson] did not
appear.
[Defense counsel], as a result of a number of phone calls, did
speak to [Johnson] who was in the process of an emergency move
from his house and didn’t know about it but requested[—defense
counsel] requested on his behalf[—]that we continue the case
until today so he wouldn’t be in the middle of some emergency
move notifying him.
So[,] we continued it until April 18th for him to be here at 9:00
[a.m.] It’s now 2:41 p.m. [Johnson] has not appeared, and
[defense counsel,] . . . when this case was called[,] stated that he
did have contact with [Johnson], told [Johnson] that he had to be
here at 9:00 on April 18th, spoke to him last night to remind him
that he had to be here, and as a result of that[,] I find that this is
a willful failure to appear, and the Commonwealth may proceed
under Rule 602 with the completion of this trial in absentia.
Id. at 14-15 (italics added). Defense counsel then noted his objection for the
record and the court proceeded to try Johnson in absentia. Id. at 15.
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6Officer Rosario testified that she printed out a photograph of Johnson, using
his Public Protection Notice (PPN) number, to use for identification purposes,
and she also checked for his whereabouts using Johnson’s alias, Emanual
Robinson. Id. at 9-10.
7 The Commonwealth also called Robin Washington, a court clerk, who
testified that Johnson’s Secure Court Summary, which had been marked for
identification and entered as Exhibit C-3, was an accurate copy. Id. at 13.
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At the conclusion of trial, Johnson was convicted, in absentia, of the
above-mentioned crimes. On July 22, 2019, Johnson was sentenced to 8-20
years for aggravated assault, with concurrent sentences on all other charges.
On August 1, 2019, Johnson filed a motion to reconsider his sentence that was
denied without a hearing. Johnson filed a timely notice of appeal and court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Johnson presents the following issue for our review:
Did not the trial court deny [Johnson] his rights under the Sixth
Amendment to the United States Constitution and Article I, §§ 6
and 9 of the Pennsylvania Constitution to be present in court at
every stage of a criminal trial, where the court failed to determine
by a preponderance of evidence that [Johnson] was absent
without cause?
Appellant’s Brief, at 3.
A defendant has the constitutional right, guaranteed by the Sixth
Amendment to the United States Constitution and Article I, § 9 of the
Pennsylvania Constitution, to be present in the courtroom at every stage of
his or her criminal trial. Commonwealth v. Tharp, 101 A.3d 736, 762 (Pa.
2014). When a defendant alleges a violation of that right, we review such
claims de novo, and our scope of review is plenary. Commonwealth v.
Tejada, 161 A.3d 313, 317 (Pa. Super. 2017).
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Pennsylvania Rule of Criminal Procedure 6028 “dictates that a defendant
shall be present at every stage of a trial[,] including the impaneling of the jury
and the return of the verdict, except as otherwise provided by the rule.”
Commonwealth v. Decosta, 197 A.3d 813, 816 (Pa. Super. 2018). The only
exception under Rule 602 is when a defendant is “absent without cause.” Id.The Commonwealth has the burden of proving, “by a preponderance of the
evidence[,] that the defendant is absent ‘without cause’ and that he knowingly
and intelligently waived his right to be present.” Commonwealth v Hill, 737
A.2d 255, 259 (Pa. Super. 1999); see also Pa.R.Crim.P. 602 (Comment).
Instantly, the trial court noted that Johnson appeared and testified at
the first portion of his bifurcated trial on March 11, 2019. However, when trial
resumed on April 12, 2019, defense counsel notified the court that Johnson
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8 Specifically, Rule 602 states:
The defendant shall be present at every stage of the trial including
the impaneling of the jury and the return of the verdict, and at
the imposition of sentence, except as otherwise provided by this
rule. The defendant’s absence without cause at the time
scheduled for the start of trial or during trial shall not
preclude proceeding with the trial, including the return of
the verdict and the imposition of sentence.
Pa.R.Crim.P. 602(A) (emphasis added). See id. (Comment) (stating Rule
602 was amended in 2013 “to clarify that, upon a finding that the absence
was without cause, the trial judge may conduct the trial in the defendant’s
absence when the defendant fails to appear without cause at the time set for
trial or during trial”).
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had emergency “housing issues” and would not be able to appear in court.
Accordingly, the trial court continued trial to April 18, 2019. On the 18th,
Johnson again failed to appear. After conducting an in absentia hearing, the
court permitted the Commonwealth to proceed in Johnson’s absence.
In its Rule 1925(a) opinion, the court supports its decision to try Johnson
in absentia, stating that: Johnson had notice of his trial date; the court
granted defense counsel’s request for a continuance on April 12, 2019, due to
Johnson’s “emergency housing move;” defense counsel texted Johnson to be
in court at “9:00 [a.m.] sharp” on April 18th and also spoke to Johnson on the
telephone on the evening of the 17th about being at trial the next morning.
Trial Court Opinion, 9/3/20, at 8. In light of these facts, the court concluded
that Johnson willfully failed to appear on the 18th. Id. Moreover, the court
found that the Commonwealth met its burden of proving that Johnson was
absent from trial without cause by employing Officer Rosario to search for
Johnson. Officer Rosario called fifteen area hospitals searching for Johnson.
She also called the morgue and checked to see if Johnson was in custody. Id.Officer Rosario, however, testified on cross-examination that she did not check
any of Johnson’s past known addresses. Id. at 10.
After reviewing the record, we conclude that the Commonwealth met its
burden of proving that Johnson was absent without cause from trial on April
18, 2019. The evidence shows that Johnson was aware of the charges against
him and, notably, was notified by his attorney—the evening before his second
day of trial—by text message and a phone call reminding him about the 9:00
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am start time.9 Additionally, there is no evidence of record that Johnson
absented himself involuntarily. Commonwealth v. Kelly, 78 A.3d 1136,
1143 (Pa. Super. 2013). Finally, the Commonwealth attempted to locate
Johnson, by searching reasonable locations under the circumstances, prior to
trial proceeding in his absence.10
Under such circumstances, we find that the trial court reasonably
concluded Johnson had voluntarily waived his right to be present during trial
and, as a result, the court correctly conducted trial in his absence. Compare
Commonwealth v. Sullens, 619 A.2d 1349 (Pa. 1992) (where defendant
knew of his trial and willingly absented himself from proceedings, defendant
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9 Moreover, neither Johnson nor any other personal representative contacted
the court to provide a reason as to why he was not present for his trial on
April 18th.
10 In coming to our decision today we recognize a prior panel decision,
Commonwealth v. Norton, 138 EDA 2019 (Pa. Super. filed July 23, 2020)
(unpublished memorandum decision), where our Court vacated the
defendant’s judgment of sentence and remanded for resentencing when the
trial court had sentenced the defendant in absentia. There, the
Commonwealth also used Officer Rosario to “attempt to locate [the
defendant], over a two to three hour span, [] limited to checking local
hospitals, the jail and the morgue.” Id. at 7. In Norton, the panel concluded
that the Commonwealth’s attempt to locate the defendant “was inadequate to
justify sentencing anyone in absentia, especially ‘a person with [defendant]’s
mental illness, substance abuse problems, cognitive impairments, and
apparent lack of notice of her hearing.’” Id. Despite the fact that the
Commonwealth used the same investigator in this case and that she employed
similar search tactics to find Johnson, the significant fact that Johnson was
clearly aware of his trial date, that defense counsel had contacted Johnson the
night before (via text and telephone) to remind him to be present at trial, and
where there was no evidence that Johnson had any cognitive or substance
abuse issues makes Norton clearly distinguishable from the instant case.
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was absent without cause and properly tried in absentia) with Decosta,
supra (trial court violated defendant’s constitutional right to be present at
every stage of trial and abused its discretion by denying defense counsel's
request to stay return of verdict, when defendant was hospitalized and
intubated for medical problem during course of jury’s deliberations;
Commonwealth did not prove, by preponderance of evidence, that defendant
was absent without cause).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/21
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