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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    OMARI KENYATTA WILSON                      :
                                               :
                       Appellant               :   No. 504 MDA 2019

          Appeal from the Judgment of Sentence Entered March 4, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0004492-2016


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 21, 2020

        Appellant, Omari Kenyatta Wilson, appeals from the judgment of

sentence entered on March 4, 2019, in the Dauphin County Court of Common

Pleas. After review, we affirm.

        The record reveals that on May 9, 2016, the Commonwealth charged

Appellant with one count of simple assault.1 Complaint, 5/9/16. Appellant

failed to appear at his arraignment, and in response, the trial court issued a

bench warrant for Appellant’s arrest. Order, 9/23/16.

        On August 21, 2018, Attorney Alexander Korn entered his appearance

as counsel for Appellant. On September 5, 2018, the trial court scheduled

Appellant’s trial to begin on September 24, 2018.           After a continuance,


____________________________________________


1   18 Pa.C.S. § 2701(a)(1).
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Appellant’s trial was rescheduled for January 14, 2019. However, on January

15, 2019, the Commonwealth filed a motion to revoke Appellant’s bail and

issue a bench warrant. In the motion, the Commonwealth alleged that on

January 14, 2019, Appellant appeared at the home of Erica Reed (“Ms. Reed”),

his victim in the underlying simple assault, and began kicking her door.

Motion, 1/15/19. That same day, the trial court granted the Commonwealth’s

motion to revoke Appellant’s bail and issued a bench warrant. Order, 1/15/19.

      On January 16, 2019, the trial court ordered trial to begin the following

morning. However, on January 17, 2019, Appellant did not appear in court,

and Appellant’s trial counsel moved for a continuance. The record reveals the

following:

      ATTORNEY KORN: We would be respectfully requesting a
      continuance, Your Honor, the defense.

      THE COURT: And the reason for the continuance? Where is your
      client?

      ATTORNEY KORN: Your Honor, I am not at liberty to discuss any
      attorney/client communications at this time.

N.T., 1/16-17/19, at 3.

      In its opinion, the trial court expanded on this exchange with Appellant’s

trial counsel and stated:

             Immediately prior to starting trial on January 17, 2019, this
      [c]ourt noted that [Appellant] was not present, and inquired as to
      whether he had been given notice of his trial. The Deputy District
      Attorney responded that [Appellant] had been given notice. Jury
      Trial, January 17, 2019, Notes of Testimony, p. 3.1




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              1 The Commonwealth requested a consciousness of
              guilt instruction, which this [c]ourt denied.
              Specifically, the [c]ourt determined that such
              instruction did “not apply to this particular fact
              pattern,” and went on to state the following:

                     But I will be instructing them that the
                     burden is always on the Commonwealth,
                     as [Appellant] has no obligation to
                     present any evidence and I’m going to
                     include even be present at trial – because
                     we don’t know the reason for their not
                     being    present    –   and     that   the
                     Commonwealth’s evidence should be
                     weighed ... and not hold it against him
                     that he’s not present.

              Jury Trial, 1-17-19, N.T., pp. 4-5. In both the
              preliminary instructions and final instructions to the
              jury, this [c]ourt stated that the fact that [Appellant]
              was not present for trial should not be held against
              him, should not be a factor in the jury’s consideration,
              and no inference of guilty should be drawn due to
              [Appellant’s] absence. Jury Trial, 1-17-19, N.T., pp, 7,
              81.

Trial Court Opinion, 6/25/19, at 1.

       The trial court tried Appellant in absentia. At the conclusion of the trial,

the jury found Appellant guilty of simple assault. N.T., 1/17/19, at 90.2 On

March 4, 2019, the trial court sentenced Appellant to a term of one to two




____________________________________________


2 The January 17, 2019 notes of testimony reflect that Attorney Korn
represented Appellant throughout the jury trial. N.T., 1/17/19, passim. It is
unclear from the record at what point Attorney Korn ceased representing
Appellant; however, on January 29, 2019, Appellant’s current counsel,
Jacqulyn Gagliardi, Esquire, entered her appearance for Appellant. Praecipe,
1/29/19.

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years of incarceration.   On March 27, 2019, Appellant filed a timely appeal.

Both the trial court and Appellant complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises the following issues:

      I. Whether the trial court abused its discretion when it failed to
      grant Appellant’s counsel’s multiple requests for a continuance
      prior to the commencement of trial on January 17, 2019, when
      Appellant’s counsel indicated the reason for the request was
      subject to attorney-client privilege?

      II. Whether the trial court failed to meet the standard for holding
      a trial in absentia when Appellant was not present for his jury trial
      on January 17, 2019[,] when it failed to make a ruling on the
      record that Appellant had been notified of his constitutional right
      to be present at trial and the risks of failing to exercise those rights
      and that he had knowingly and intelligently waived those rights?

Appellant’s Brief at 4.

      Appellant first asserts that the trial court should have granted his motion

for a continuance. Appellant’s Brief at 8. Our Supreme Court has held that

“The grant or denial of a motion for a continuance is within the sound

discretion of the trial court and will be reversed only upon a showing of an

abuse of discretion.” Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa.

2014). An abuse of discretion is not merely an error of judgment; rather,

discretion is abused when “the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will, as shown by the evidence or the record.”           Id.

(citation omitted). Additionally, our Rules of Criminal Procedure provide as

follows:




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      Continuances in Summary and Court Cases

      (A) The court or issuing authority may, in the interests of justice,
      grant a continuance, on its own motion, or on the motion of either
      party.

      (B) When the matter is before an issuing authority, the issuing
      authority shall record on the transcript the identity of the moving
      party and the reasons for granting or denying the continuance.

      (C) When the matter is in the court of common pleas, the judge
      shall on the record identify the moving party and state of record
      the reasons for granting or denying the continuance. The judge
      also shall indicate on the record to which party the period of delay
      caused by the continuance shall be attributed and whether the
      time will be included in or excluded from the computation of the
      time within which trial must commence in accordance with Rule
      600.

      (D) A motion for continuance on behalf of the defendant shall be
      made not later than 48 hours before the time set for the
      proceeding. A later motion shall be entertained only when the
      opportunity therefor did not previously exist, or the defendant was
      not aware of the grounds for the motion, or the interests of justice
      require it.

      (E) When a continuance is granted, the notice of the new date,
      time, and location of the proceeding shall be served on the parties
      as provided in these rules.

Pa.R.Crim.P. 106.

      The record reveals that Appellant’s trial counsel moved for a continuance

on the day of trial. N.T., 1/16-17/19, at 3. There is no evidence in the record

necessitating this motion apart from Appellant’s absence.         Nevertheless,

Appellant avers that attorney-client privilege precluded informing the trial

court of the basis for the motion. Appellant’s Brief at 8.




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      As stated above, trial counsel stated only: “I am not at liberty to discuss

any attorney/client communications at this time.”      N.T., 1/16-17/19, at 3.

However, trial counsel never asserted “privilege” or any other basis for a

continuance. Rather, trial counsel merely provided a vague answer to the trial

court’s inquiry.   After review, the only reason apparent in the record for

seeking a continuance was Appellant’s failure to appear in court. Because

Appellant did not provide any basis for a continuance other than the bald

assertion noted above, we discern no abuse of discretion. Appellant is due no

relief on this claim of error.

      Next, Appellant avers that the trial court abused its discretion when it

proceeded with the trial in his absence. Appellant’s Brief at 10. It is well

settled that:

            A criminal defendant has the right to be present at all stages
      of criminal proceedings. Commonwealth v. Wilson, 551 Pa.
      593, 712 A.2d 735, 737 (1998). … [A] defendant who is absent
      without cause at the start of trial may be tried in absentia.
      Commonwealth v. Johnson, 734 A.2d 864, 866, 867 (Pa.
      Super. 1999). The decision to proceed with trial rather than to
      grant a continuance is within the trial court’s discretion. Id. An
      abuse of discretion is not a mere error of judgment; it involves
      bias, partiality, prejudice, ill-will, or manifest unreasonableness.
      Commonwealth v. Busanet, 572 Pa. 535, 817 A.2d 1060, 1076
      (2002).

Commonwealth v. Flores, 921 A.2d 517, 525 (Pa. Super. 2007). Our Rules

of Criminal Procedure provide, in relevant part:

      Presence of the Defendant

      (A) The defendant shall be present at every stage of the trial
      including the impaneling of the jury and the return of the verdict,

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     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).

     The trial court addressed this issue as follows:

            In [Commonwealth v.] Wilson, [712 A.2d 735 (Pa. 1988)],
     the Pennsylvania Supreme Court stated: “Unless the defendant is
     prevented from attending the proceedings for reasons beyond his
     or her control, then the defendant is expected to be present at all
     stages of the trial. A defendant owes the court an affirmative duty
     to advise it if he or she will be absent.” Wilson, supra, 712 A.2d
     at 738. “As far back as 1784, the Pennsylvania Supreme Court
     indicated that absenting oneself from facing trial did not violate a
     person’s jury rights. [Respublica] v. Doan, 1 Dall. 86, 1 L.Ed. 47
     (Pa. 1784).” Commonwealth v. Kelly, 78 A.3d 1136, 1141 (Pa.
     Super. 2013). “Hence, it is long established that where a person
     absents himself from trial, his jury trial right is not infringed.”
     Id. at 1142.

            Here, the trial court questioned whether [Appellant] had
     been notified of the trial[,] and the record reflects that [Appellant]
     had been given notice. His explanation, after the fact, does not
     excuse his absence.2 [Appellant] acknowledged he was aware of
     his trial date. It is not up to this [c]ourt to keep a defendant
     apprised of the time of trial when he is aware of the scheduled
     date. [Appellant] had an affirmative duty to remain in touch with
     his counsel and the [c]ourt; his bail conditions required such.
     There is no evidence that he attempted to contact counsel, the
     [c]ourt’s chambers,3 or the office of court administration that day
     to determine his trial status. Further, [Appellant] did not appear
     at the courthouse that day to review the status of his case on the
     court administration monitor posted on all floors of the
     courthouse. There was no justifiable explanation provided for
     [Appellant] not appearing at trial. See Commonwealth v. Hilburn,
     746 A.2d 1146, 1148 (Pa. Super. 2000) (defendant was properly
     tried in absentia where “the trial court made a logical and
     sufficient inquiry into the circumstances of” defendant’s absence,
     and the record revealed no evidence of good cause); Wilson,
     supra.

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            2 [Appellant] briefly addressed his jury trial absence
            after the trial was over, at the sentencing hearing. He
            stated that the reason he did not appear at trial was
            “because Ms. Reed had my phone.” Sentencing
            Hearing, March 4, 2019, Notes of Testimony, p. 6.
            Even had this information been provided to the [c]ourt
            at the appropriate time, such reasoning falls far short
            of a valid reason for failing to appear. Wilson, supra.

            3[Appellant] had a specific judge assigned to his case
            and no inquiry was made to chambers.

Trial Court Opinion, 6/25/19, at 3-4.

      We agree with the trial court’s assessment.     The record reveals that

Appellant had notice of the date and time of trial.      N.T., 1/17/19, at 3.

However, Appellant did not contact the trial court or court administration

regarding an inability to appear at trial. Moreover, Appellant’s counsel never

averred that Appellant notified him that Appellant would be unable to attend

the proceedings.    There is no evidence that Appellant was precluded from

attending trial by circumstances beyond his control, and it was reasonable for

the court to conclude that Appellant absented himself voluntarily and waived

his right to be present. Wilson, 712 A.2d at 739. We discern no abuse of

discretion in the trial court proceeding in Appellant’s absence, and we conclude

Appellant is entitled to no relief.




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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2020




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