Com. v. Desalvo, J.

J-S49040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSEPH DESALVO
Appellant No. 199 WDA 2017
Appeal from the Judgment of Sentence January 12, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000123-2016
BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 28, 2017
Appellant, Joseph DeSalvo, appeals from his judgment of sentence of
three to six years’ imprisonment for, inter alia, persons not to possess
firearms.1 Appellant’s sole argument is that the trial court abused its
discretion in denying him a continuance and holding a jury trial in his
absence when he was admitted to the hospital for a medical emergency. We
affirm.
The trial court accurately recounts the factual history as follows:
On January 9, 2017, a jury trial before this [c]ourt was
commenced at 2:45 p.m. with [Appellant] present with his
counsel in the courtroom. The jury was empaneled and
opening statements by the prosecutor and defense counsel
were made. When the trial resumed at approximately
9:10 a.m. the following morning, January 10, 2017,
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6105(a). The trial court imposed no further penalty on the
other charges for which the jury found Appellant guilty.
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counsel informed the [c]ourt that [Appellant] was absent
from the courtroom due to being hospitalized on account of
overdosing after voluntarily ingesting unknown illegal
substances. Defense counsel requested a continuance of
the trial, which the [c]ourt denied, and the trial resumed
without [Appellant] on charges of . . . Person Not To
Possess Firearm, Theft By Unlawful Taking, and Firearm
Not To Be Carried Without A License. After the conclusion
of all testimony and closing arguments, [Appellant] was
[convicted] on all charges.
Trial Ct. Op., 3/6/17, at 1-2 (record citations omitted). Following
sentencing, Appellant filed a timely notice of appeal, and both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant raises one issue on appeal:
Whether the [trial] court committed reversible error by not
granting defense counsel’s request for continuance or
mistrial and holding [Appellant’s] jury trial in his absence
while he was admitted to Uniontown Hospital for a medical
emergency?
Appellant’s Brief at 7.
The Rules of Criminal Procedure provide:
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).
This Court has written:
A defendant’s right to be present at trial is guaranteed
by the Sixth Amendment to the United States Constitution;
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by Article I, Section 9 of the Pennsylvania Constitution;
and by Pennsylvania Rule of Criminal Procedure 602(a).
See, e.g., Taylor v. United States, 414 U.S. 17, 20, 94
S.Ct. 194, 38 L.Ed.2d 174 (1973); Illinois v. Allen, 397
U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970);
Commonwealth v. Tizer, [], 684 A.2d 597, 604 ([Pa.
Super.] 1996). This Court has previously declined to
interpret our state Constitution as requiring more
protection for the accused with respect to trials in absentia
than the United States Constitution. See Commonwealth
v. Hill, 737 A.2d 255, 260 (Pa. Super. 1999).
Furthermore, the right may be waived either impliedly, via
the defendant’s actions, or expressly. See, e.g.,
Commonwealth v. Vega, [], 719 A.2d 227, 229–30
([Pa.] 1998); Commonwealth v. Sullens, [], 619 A.2d
1349, 1351 ([Pa.] 1992).
* * *
Furthermore, a defendant may be tried in absentia if he
or she is absent without cause when the trial is scheduled
to begin or if the defendant absconds without cause after
the trial commences. Commonwealth v. Wilson, [] 712
A.2d 735, 737 ([Pa.] 1998); Sullens, 619 A.2d at 1352;
see also Taylor, 414 U.S. at 20, 94 S.Ct. 194 (concluding
that the trial court had committed no error in proceeding
with a trial even though the defendant had chosen not to
return to the courtroom for the afternoon session, and
quoting Allen, 397 U.S. at 349, 90 S.Ct. 1057 (Brennan,
J., concurring) for the proposition that “the governmental
prerogative to proceed with a trial may not be defeated by
conduct of the accused that prevents the trial from going
forward”).
Commonwealth v. Faulk, 928 A.2d 1061, 1065-66 (Pa. Super. 2007).
Under these precepts, the trial court acted within its discretion by
proceeding with trial in Appellant’s absence. The record establishes that
Appellant was present for the first day of trial but was found unresponsive at
his home and transported by ambulance to the hospital. N.T., 1/10/17, at
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J-S49040-17
11-12. Blood tests taken at the hospital show that he ingested illegal
controlled substances between the first and second days of trial. Id. at 12.
We agree with the trial court that this was a “voluntary” act. Id. Moreover,
several witnesses missed work to attend the second day of trial, and a state
trooper adjusted his schedule to be present as well. Id. The court aptly
observed that “the inconvenience to those people outweigh the voluntary act
on [Appellant’s] part.” Id.
We hold that Appellant waived his right to be present during trial by
voluntarily ingesting illegal substances that caused his hospitalization. See
Faulk, 928 A.2d at 1065-66. The trial court properly held that Appellant
could be tried in absentia for being absent without cause after trial
commenced.
Judgment of sentence affirmed.
Judge Dubow joins.
Judge Solano concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2017
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