Commonwealth v. Borger , 452 Pa. Super. 367 ( 1996 )

KELLY, Judge:

In this appeal, we are called upon to determine whether the trial court abused its discretion by denying appellant’s, Allen Dale Borger’s, petition to reinstate his post-verdict motions which had been dismissed following his escape from the Lehigh County Prison while his post-verdict motions had been pending before the trial court. We hold that the trial court did not abuse its discretion by refusing to reinstate appellant’s post-verdict motions based upon its finding that there were no meritorious circumstances in connection with appellant’s escape and later apprehension that warranted the reinstatement of his post-verdict motions. Hence, we affirm the trial court’s order denying reinstatement of appellant’s post-verdict motions.

The relevant facts and procedural posture of the present case are simple and undisputed. On December 4, 1991, a jury convicted appellant of first degree murder.¹ The following day, the court imposed a sentence of life imprisonment due to the jury’s failure to agree during death-penalty deliberation. Appellant filed timely post-verdict motions. These motions were later dismissed due to appellant’s escape from prison.²

Approximately one month after appellant’s recapture and four months after his murder conviction, appellant petitioned the trial court to reinstate his post-verdict motions. The trial court denied that request, and appellant appealed from that order. This Court remanded the matter to the trial court because it appeared that the trial court was unaware that it had the discretion to reinstate appellant’s motions. See Commonwealth v. Borger, 429 Pa.Super. 209, 212-13, 632 A.2d 309, 311 (1993), allocatur denied, 539 Pa. 642, 651 A.2d 531 (1994). On remand, the trial court denied appellant’s petition, noting in particular the absence of any “meritorious circumstances in connection with this defendant’s escape and his later apprehension that should give rise to reinstating his post-trial motions.” (Trial Court Opinion, filed October 11, 1995, at 7-8).- This timely appeal followed.

On appeal, appellant raises the following issue for our review:

WHETHER THE COURT COMMITTED ERROR AND ABUSE OF DISCRETION IN REFUSING TO REINSTATE THE APPELLANT’S POST-VERDICT MOTIONS?

Appellant’s Brief at 3.

A. Standard of Review

When post-verdict motions are properly dismissed because the defendant is a fugitive, we review a trial court order declining to reinstate those motions for abuse of discretion. See Commonwealth v. Chopak, 532 Pa. 227, 232, 615 A.2d 696, 699 (1992); Commonwealth v. Borger, supra at 210-11, 632 A.2d at 310; Commonwealth v. Clark, 300 Pa.Super. 315, 318, 446 A.2d 633, 634 (1982), cert. denied 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990); Commonwealth v. Boyd 244 Pa.Super. 98, 100, 366 A.2d 934, 935 (1976); cf. In the Interest of J.J., 540 Pa. 274, 288, 656 A.2d 1355, 1362 (1995) (holding that Supreme Court will review for abuse of discretion an intermediate appellate court’s decision whether to consider the merits of or reinstate an appeal filed by a defendant who has been returned to custody-after an escape); Commonwealth, v. Rodriguez, 448 Pa.Super. 60, 61-63, 670 A.2d 678, 679 (1996) (holding that the decision whether to entertain the appeal of a fugitive once returned lies within this Court’s discretion).

No case law known to this Court states expressly what factors must guide the trial court’s exercise of such discretion.³ In Commonwealth v. Chopak, supra, a defendant’s post-trial motions were properly dismissed while he was a fugitive. After his recapture, defendant filed a motion nunc pro tunc for reconsideration of his post-verdict motions. The defendant claimed that by virtue of his personality disorder, he was not responsible for having fled. See Commonwealth v. Chopak, supra at 230, 615 A.2d at 698. The trial court denied the motion, and we reversed. See id. The Pennsylvania Supreme Court held that our reversal was error because the trial court had fully considered defendant’s proffered excuse for his flight. See id. at 232, 615 A.2d at 699. Instantly, appellant does not contest the validity of the original dismissal of his post-verdict motions, see Appellant’s Brief at 10, and the trial court refused to reinstate because it found no meritorious excuse for appellant’s escape. (See Trial Court Opinion at 7-8).

Our Supreme Court addressed a similar issue in Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). In that case, petitioner escaped during the pendency of an appeal before this Court. We quashed petitioner’s appeal because he was a fugitive. Upon recapture, petitioner conceded the validity of the original quashal but requested reinstatement of his appeal. We declined to reinstate the appeal. See id at 613-14, 476 A.2d at 347-48. The Supreme Court affirmed, stating:

[Petitioner does not question the propriety of the dismissal of his appeal on the ground of his fugitive status. He argues, however, that since he has been apprehended and returned to the jurisdiction of the court his appeal should now be reinstated. Petitioner maintains that if the unresponsiveness of a fugitive to the court’s judgment is the main reason why his appeal is quashed, it is illogical to refuse to reinstate the appeal once the defendant is back within the control and jurisdiction of the court, and that the only basis for such a refusal is to punish the escape.

We find this argument unpersuasive. The fact that a defendant is subsequently recaptured provides no basis for disturbing an order dismissing his appeal.... It would be unseemly to permit a defendant who has rejected the appellate process in favor of escape to resume his appeal merely because his escape proved unsuccessful.

Close examination of appellant’s argument demonstrates that his position is flawed.... He does not challenge the fact that his escape justified the initial quashing of the appeal. Thus the question is not whether he should be stripped of his right of appeal because of his escape, but rather whether his apprehension, which he in no way intentionally assisted, should entitle him to rights already forfeited. We can ascertain no reason in logic or any policy which would support such a conclusion.

Id. at 616-17, 476 A.2d at 349 (citations omitted). The Supreme Court recently reaffirmed this reasoning, citing it with approval. See In the Interest of J.J., supra at 280, 656 A.2d at 1358. In light of the reasoning in Commonwealth v. Chopak, supra, Commonwealth v. Passaro, supra, and In the Interest of J.J., supra, we hold that the trial court did not abuse its discretion in refusing to reinstate appellant’s post-verdict motions.

B. Appellant’s Arguments

Appellant asserts that the trial court made two omissions constituting an abuse of discretion. First, appellant argues that the trial court abused its discretion in failing to consider that “refusal to reinstate post-verdict motions has the effect of a life sentence for the crimes of escape, robbery, theft and conspiracy.” Appellant’s Brief at 14. Second, appellant posits that “the trial court simply failed to exercise its discretion,” id. at 16, because the trial court did not expressly consider factors that must be considered when deciding whether to dismiss post-verdict motions in the first instance. See id. at 16-19 (citing Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1 (1994); In the Interest of J.J.,⁴ 447 Pa.Super. 259, 668 A.2d 1176 (1995)). We disagree.

The trial court’s denial of appellant’s request for reinstatement of his post-verdict motions does not operate to extinguish judicial review of his life sentence. Appellant may still petition for review under the Post Conviction Relief Act (PCRA). See 42 Pa. C.S.A. §§ 9501 et seq. Virtually every one of appellant’s fifty-four issues raised in post-trial motions involves a constitutional issue which may be raised in a PCRA petition pursuant to 42 Pa.C.S.A. § 9543(a)(2)(i). Accordingly, as appellant is fully eligible under 42 Pa.C.S.A. § 9543(a) to petition for a PCRA hearing,⁵ the only effeet the denial of the reinstatement of his post-verdict motions has is to maintain the effeet of the original dismissal, which appellant concedes was proper. See Appellant’s Brief at 10.

Appellant relies chiefly on the reasoning of Ortega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) to support his first claim. The Supreme Court held in that case that the Eleventh Circuit could not apply a rule of per se forfeiture of appellate rights to a defendant who escaped and was recaptured before the appellate process began. See id. at 251, 113 S.Ct. at 1209-10, 122 L.Ed.2d at 599. In the course of its discussion, the Court stated that “[i]f we assume that there is merit to petitioner’s appeal, then the Eleventh Circuit’s dismissal is tantamount to an additional punishment of fifteen years for the same offense of flight.” Id. at 248, 113 S.Ct. at 1207-08, 122 L.Ed.2d at 596. Appellant’s reliance on this reasoning in support of his claim is misplaced. First, the procedural posture and central issue of Ortega-Rodriguez v. United States, supra, are completely different from the case at bar. This ease does not deal with the propriety of any original dismissal of a petition for judicial review, as does Ortega-Rodriguez v. United States, supra. Second, in Ortega-Rodriguez v. United States, supra, the dismissing court (Circuit Court) was different from the court whose jurisdiction petitioner fled (District Court). See id. at 242, 113 S.Ct. at 1205, 122 L.Ed.2d at 595. Third, the above-quoted passage concerns the imposition of additional punishment (dismissal of appeal) after the petitioner had already been convicted and sentenced for escape. Instantly, the dismissing court was identical to the court from whose jurisdiction appellant fled; appellant’s motions were dismissed before he was convicted and sentenced for escape; and the denial of reinstatement is not an additional punishment, it is merely a maintenance of the original dismissal.

At best, appellant may complain that he will face a more stringent burden by raising his chosen issues at a PCRA hearing than he might have faced at a hearing on post-verdict motions. To countenance such a claim would be to hold that appellant’s flight should have no negative consequences beyond the imprisonment levied. See Appellant’s Brief at 13. Appellant fails to demonstrate how such a claim excuses his fugitivity. The PCRA review that remains available to appellant is more than fair, given his “act of defiance” and manifest disdain for judicial process. Commonwealth v. Kindler, supra at 233, 639 A.2d at 3. Consequently, appellant’s first argument is meritless.

Appellant’s second argument is meritless because it misconstrues the current trend in Pennsylvania law and ignores the import of this matter’s specific procedural posture. Appellant acknowledges that it is not the dismissal of the appellant’s post-trial motions that is at issue here, but instead it is the Court’s refusal to reinstate the appellant’s motions. Inexplicably, appellant proceeds to rely exclusively on cases like Ortega-Rodriguez v. United States, supra, which presents a different issue, specifically the dismissal, on appeal, of a case in which the accused was recaptured prior to the case going up on appeal. The other cases relied upon appellant in his brief, our Supreme Court’s decision in Commonwealth v. Kindler, supra and this Court’s decision on remand in In the Interest of J.J., supra, to allege trial court error instantly also deals with the propriety of the dismissal of post-verdict motions or appeals, not with the denial of a request for reinstatement.

The Supreme Court’s decision in In the Interest of J.J., supra, does stand for a mitigation of the harshness of the per se forfeiture rule laid down in Commonwealth v. Jones, 530 Pa. 536, 610 A.2d 439.(1992). See In the Interest of J.J., supra at 288, 656 A.2d at 1362 (plurality opinion) (overruling in part Commonwealth v. Jones, supra); see also Commonwealth v. Carino, 540 Pa. 571, 659 A.2d 556 (1995) (per curiam order) (adopting Commonwealth v. Huff, 540 Pa. 535, 658 A.2d 1340 (1995)). As we have indicated, however, these cases do not disturb the holding of Commonwealth v. Chopak, supra, and Commonwealth v. Passaro, supra, regarding a court’s discretion to refuse to reinstate motions previously dismissed where that dismissal is uncontested; in fact, this aspect of Commonwealth v. Passaro, supra was expressly reaffirmed in In the Interest of J.J., supra at 280, 656 A.2d at 1358. Consequently, appellant’s reliance on the authorities which he cites in support of his second argument is misplaced, and his argument is mer-itless.

C. Conclusion

No case has stated expressly the factors a court must consider when exercising its discretion whether to reinstate a criminal defendant’s properly dismissed request for review. Nonetheless, Commonwealth v. Chopak, supra, Commonwealth v. Passaro, supra, and In the Interest of J.J., supra, make clear that the operative issue is whether the defendant makes out a meritorious claim of entitlement to reinstatement. A court does not abuse its discretion in refusing to reinstate where the court fully considers a defendant’s proffered reasons for the absence occasioning the original dismissal, see Commonwealth v. Chopak, supra at 232, 615 A.2d at 699, and a defendant’s bare assertion that, after recapture, he is prepared to recognize the court’s authority does not require the trial court to reinstate the former fugitive’s post-verdict motions. See Commonwealth v. Passaro, supra at 616, 476 A.2d at 349. Accordingly, the trial court did not abuse its discretion when it denied appellant’s request for reinstatement where the court found “no meritorious circumstances in connection with this defendant’s escape and his later apprehension that should give rise to reinstating his post-trial motions.” (Trial Court Opinion at 7-8).

Based upon the foregoing, we affirm the order of the trial court denying appellant’s request to reinstate post-verdict motions.

Order affirmed.

BECK, J., files a concurring opinion.

1 . 18 Pa.C.S.A.§ 2502(a).

2 . Appellant concedes the propriety of this dismissal. See Appellant's Brief at 10. In the course of his escape, appellant committed additional offenses of theft, robbery, escape and criminal conspiracy, for which he received an additional thirteen-and-a-half to twenty-seven years imprisonment. See Appellant’s Brief at 5.

3 . Justice Cappy would hold that “an appeal may be reinstated in the court’s discretion if ... the fugitive-appellant can show a compelling reason for having his claim heard.” Commonwealth v. Kindler, 536 Pa. 228, 242, 639 A.2d 1, 8 (1994) (Cappy, J. concurring). Then Justice Flaherty, now Chief Justice, and Justice Zappala "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.” Id. at 243, 639 A.2d at 9 (Flaherty, J., concurring, with Zappala, J., joining). Justice Castille continues to hold that flight operates as a per se forfeiture of the right to judicial review. See Commonwealth v. Huff, 540 Pa. 535, 539, 658 A.2d 1340, 1342 (1995) (Castille, J., dissenting).

4 . This is our published decision on remand from the Supreme Court case of the same name found at 540 Pa. 274, 656 A.2d 1355, cited previously in this opinion.

5 . We make no determination as to the merits of any claims that may be raised at a PCRA hearing, nor do we rule at this stage whether a PCRA hearing on any of appellant's issues is required.