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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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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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