J-A16006-18


                             2018 PA Super 282

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DONDI DECOSTA,

                         Appellant                  No. 3317 EDA 2016


    Appeal from the Judgment of Sentence Entered September 30, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0004260-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

OPINION BY BENDER, P.J.E.:                       FILED OCTOBER 16, 2018

      Appellant, Dondi DeCosta, appeals from the judgment of sentence of an

aggregate term of 4-10 years’ incarceration, imposed following his conviction

for possession of an instrument of crime and terroristic threats. Appellant

claims the trial court abused its discretion by permitting the jury to convict

Appellant in absentia while Appellant was hospitalized and intubated, which

occurred during the course of the jury’s deliberations. After careful review,

we vacate Appellant’s judgment of sentence and remand for a new trial.

      A detailed recitation of the facts underlying Appellant’s conviction are

not necessary to our disposition of this appeal. Briefly, on October 12, 2015,

Appellant threatened two strangers with a knife in front of a Pathmark Store

in Northeast Philadelphia. One victim drew a firearm and warned Appellant to

stop, but Appellant ignored the warning.    The victim shot Appellant in the
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groin as Appellant charged him with the knife. The Commonwealth charged

Appellant with two counts each of aggravated assault, terroristic threats,

simple assault, and recklessly endangering another person, and one count of

possessing an instrument of crime.1

       Appellant was tried by a jury between June 22nd and June 27th of 2016.

The jury began its deliberations on Friday the 24th, and were set to reconvene

on Monday the 27th.        As deliberations were set to begin on that Monday,

Appellant’s counsel informed the court that Appellant had been hospitalized

over the weekend with a diagnosis of Sepsis. N.T., 6/27/16, at 2. Counsel

indicated that Appellant was sedated and on a mechanical ventilator and,

therefore, unable to attend the trial. Id. Counsel provided documentation

from two doctors corroborating this account.      Counsel refused the court’s

request to waive his client’s presence if there were any questions from the

jury. Id. at 3.

       The trial court decided to proceed over defense counsel’s objections.

Specifically, the trial court declared that no prejudice would result from

Appellant’s absence, and that defense counsel could address any questions

raised by the jury. Id. at 5. Defense counsel objected to proceeding in any

fashion until Appellant was able to return to the courtroom, and that the trial

court should declare a mistrial if it refused to stay deliberations. Id. at 6-7.

Defense counsel specifically requested that the court stay the jury’s
____________________________________________


1The simple assault and recklessly endangering another person charges were
nolle prossed prior to trial.

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deliberations until noon (three hours later) in order to get an update on

Appellant’s condition.     Id. at 6-7.      The trial court denied counsel’s

objections/requests. Id. at 7. Soon thereafter, the jury requested further

instructions on the definitions of the charged crimes.       Id. at 8.   Defense

counsel renewed his objection to proceeding in absentia. Id. at 9. The court

denied the objection and proceeded to instruct the jury. Id. at 12-22.

      Immediately thereafter, the jury indicated that it had reached a verdict.

Id. at 23. When the trial court signified that it intended to receive the verdict,

defense counsel renewed his objection to proceeding in Appellant’s absence,

“especially for a verdict.” Id. The trial court overruled the objection, and

proceeded to receive the jury’s verdict in Appellant’s absence. Id. at 25-30.

      The jury found Appellant guilty of possessing an instrument of crime and

one count of terroristic threats, and not guilty as to all remaining counts. On

September 30, 2016, the trial court sentenced Appellant to 2-5 years’

incarceration for possessing an instrument of crime, and to a consecutive term

of 2-5 years’ incarceration for terroristic threats, constituting an aggregate

sentence of 4-10 years’ incarceration.

      Appellant filed a timely notice of appeal.       On February 15, 2017,

Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial

court issued its opinion 291 days later, on December 4, 2017.

      Appellant now presents the following questions for our review:

      1. Did the trial court err in taking the verdict of the jury when the
      Appellant was not present due to medical problems?


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      2. Did the lower court err at sentencing by imposing a term of
      imprisonment that was excessive and was imposed without proper
      consideration of mitigating circumstances?

Appellant’s Brief at 3.

      Appellant’s first claim concerns his constitutional and statutory rights to

be present during every stage of a criminal trial.

      The right to trial by jury is guaranteed by the Sixth Amendment
      to the U.S. Constitution and by the Pennsylvania Constitution,
      Article I, Section 6 and Section 9. A defendant’s right to be
      present at his or her trial is grounded in the Confrontation Clause
      of the Sixth Amendment and in the Due Process Clauses of the
      Fifth and Fourteenth Amendments. The United States Supreme
      Court has determined that “[o]ne of the most basic of the rights
      guaranteed by the Confrontation Clause is the accused’s right to
      be present in the courtroom at every stage of his trial.” Illinois
      v. Allen, 397 U.S. 337, 338 … (1970) (citing Lewis v. United
      States, 146 U.S. 370 … (1892)). In addition, the High Court “has
      assumed that, even in situations where the defendant is not
      actually confronting witnesses or evidence against him, he has a
      due process right to be present in his own person whenever his
      presence has a relation, reasonably substantial, to the fullness of
      his opportunity to defend against the charge…. Thus, a defendant
      is guaranteed the right to be present at any stage of the criminal
      proceeding that is critical to its outcome if his presence would
      contribute to the fairness of the procedure.”        Kentucky v.
      Stincer, 482 U.S. 730, 745 … (1987) (quotation marks and
      internal citation omitted).

Commonwealth v. Hunsberger, 58 A.3d 32, 37 (Pa. 2012).

      Additionally, Pa.R.Crim.P. 602(A) provides that:

      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).

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       Under the constitutional standard, the right to be present at trial “is not

guaranteed ‘when presence would be useless, or the benefit but a shadow.’

Due process only requires the defendant’s presence ‘to the extent that a fair

and just hearing would be thwarted by his absence.’” Commonwealth v.

Williams, 959 A.2d 1272, 1281–82 (Pa. Super. 2008), aff'd, 9 A.3d 613 (Pa.

2010).    As such, the constitutional rights at issue are circumscribed by a

prejudice standard – a defendant must show that his absence from a trial

proceeding could have undermined the fairness of the proceeding.

       However, Rule 602 provides for more protection than offered by either

the United States or Pennsylvania Constitutions.        Rule 602 dictates that a

defendant “shall be present at every stage of the trial including the

impaneling of the jury and the return of the verdict, … except as otherwise

provided by this rule.” Pa.R.Crim.P. 602(A) (emphasis added). The only

exception provided by Rule 602 is where the defendant is “absent without

cause….”     Id.2   Thus, we, first consider whether the trial court abused its

discretion in determining, pursuant to Rule 602(A), that Appellant was absent

without cause when the verdict was issued on June 27, 2016.

       In its opinion, the trial court reasoned that it did not err in receiving the

verdict in absentia because it found that Appellant was absent without cause.

Trial Court Opinion (“TCO”), 12/4/17, at 11-19. Specifically, the trial court
____________________________________________


2 However, like most rights, a defendant may affirmatively waive his presence
during trial proceedings. See Pa.R.Crim.P. 602 (comment) (“Nothing in this
rule is intended to preclude a defendant from affirmatively waiving the right
to be present at any stage of the trial….”).

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determined that Appellant was absent without cause because it determined

that he had deliberately attempted to commit suicide in order to avoid his

trial. Id. at 14. The court based this finding on Appellant’s family’s reporting

to doctors that they were concerned that his hospitalization “may actually

have been a suicide attempt.”     Id. (quoting from Exhibit E of Appellant’s

Sentencing Motion, a note from a treating physician). “More importantly,” the

court reasoned, “the document test results from Aria [H]ospital reflected that

Appellant had tested positive for both benzodiazepines and opiates before

being admitted to the hospital.” Id. The court admitted that its decision was

influenced by Appellant’s previous attempts to “employ, falsify or exaggerate

his medical conditions to avoid trial an incur undue sympathy information [sic]

from the jury….” Id. at 15. The trial court summarized this prior conduct as

follows:

      The docketed court history of [the] instant case was replete with
      successful employment of [Appellant’s] purported medical
      conditions to lower bail and delay trial. When this case was first
      presented before this presiding trial court[,] the effort to use his
      medical conditions to unduly delay trial was unsuccessfully
      renewed. During this effort, [Appellant] revealed himself to be
      quite competent and able to proceed to trial despite his
      protestations to the contrary.

            This [c]ourt similarly observed that when [Appellant] finally
      appeared ready for the jury trial to begin, he used his family
      members to manipulate and move a wheelchair in and out of the
      courtroom during which he feigned extreme pain and exaggerated
      his overall condition beginning during jury selection. At every
      other proceeding, however, including when he appeared before at
      more preliminary proceedings and after the trial before the mental
      health evaluators and presentence investigator[,] he walked
      easily with crutches.


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             Particularly relevant to [Appellant’s] demonstrated intent to
      manipulate his medical condition to avoid responsibility for his
      violence was the report of a selected juror during jury selection.
      This selected juror reported to the trial court that she happened
      to be in an elevator occupied by [Appellant], his family and his
      counsel during which she overheard conversations concerning
      [Appellant’s] use of the wheelchair. These conversations caused
      her to believe there was a concerted effort to falsely portray
      [Appellant’s] medical condition to incur her sympathy. After this
      upset juror reported the conversation, she was duly dismissed and
      replaced after a recorded hearing. Even though the trial court
      cautioned [Appellant], however, he brazenly continued to fake
      pain and injury whenever the jury was in view of him during the
      trial.

            [Appellant’s] overall behavior before, during and after trial
      certainly colored the trial court’s perception of [his] mindset and
      purpose [during] his absence on the last morning of deliberation
      June 27, 2016. Thus, [Appellant] cannot fault the trial court for
      believing his absence on the day he faced potential imprisonment
      on June 27, 2016 was without just cause.

Id. at 15-16.

      Appellant argues that the trial court’s ruling was made without sufficient

proof of the allegation that he had intentionally absented himself from the

jury’s verdict by attempting suicide.       Appellant construes the court’s

determination as mere speculation, given that Appellant’s family had only

conveyed their suspicion of a suicide attempt to doctors, and documentation

provided to the court indicated that Appellant had a prescription for opiates

for pain management. Appellant’s Brief at 12. Appellant also complains that

the trial court essentially shifted the burden of proof on this matter, as it is

the Commonwealth’s duty to show, by a preponderance of the evidence, that

he was absent without cause.




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      In Commonwealth v. Hill, 737 A.2d 255 (Pa. Super. 1999), this Court

indicated that the Commonwealth bears the burden of proving that a

defendant is absent without cause. Id. at 259 (“Where the Commonwealth

has demonstrated 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, he may be tried in absentia.”). Instantly, we see no evidence

in the record of the Commonwealth’s attempting to meet this burden.

Instead, the trial court appears to have rested its decision based on

documentation provided to the court by Appellant. More troubling, the court

suggests in its opinion that Appellant bore the burden of proving that his

absence was involuntary.     See TCO at 15 (“To date, no data has been

submitted to prove the claim that [Appellant]’s action was involuntary.”)

(emphasis added).

      The documentation reviewed by the court indicates that its decision was

based primarily on hearsay speculation by the family that they suspected

Appellant’s hospitalization resulted from a suicide attempt.       There is no

evidence that anyone observed Appellant attempting to commit suicide.

Neither Appellant’s family, nor the doctor whose notes restated the family’s

speculation regarding suicide, testified before the trial court.   Indeed, the

family member or members who offered their suspicion to the attending

medical professionals were never identified. Moreover, the presence of drugs

in Appellant’s system when he was hospitalized was not obvious or clear

evidence of a suicide attempt, as the trial court appears to suggest, given that

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Appellant had a prescription for opiates to manage his pain, regardless of

whether he had, at times, exaggerated that pain during prior court

proceedings. It is not suspicious at all that a person would still be receiving

medication for pain eight months after being shot in the groin. Furthermore,

there was no evidence presented to the trial court that indicated that the

quantity of drugs detected in Appellant’s system was beyond what would have

been expected had he been taking those medications as prescribed. Finally,

there is no evidence in the record that Appellant’s diagnosis of Sepsis was

faked, or that it could have been induced by a suicide attempt as implicitly

suggested by the trial court.3

       Also of concern here is that, rather than acting as a neutral arbiter of

justice, the trial judge appears to have assumed the Commonwealth’s role as

an advocate with respect to defense counsel’s request to stay the proceedings

based on Appellant’s obvious inability to attend the trial proceedings. “An

abuse of discretion exists where the court has reached a conclusion which

overrides or misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Ballard, 80 A.3d 380, 397 n.18 (Pa. 2013) (emphasis

____________________________________________


3 The implicit suggestion of the trial court is that Appellant attempted to
commit suicide by drug overdose, and in so doing self-inflicted his Sepsis
diagnosis. However, “Sepsis is a life-threatening condition that arises when
the body’s response to infection causes injury to its own tissues and organs.”
https://en.wikipedia.org/wiki/Sepsis. No evidence was presented to the trial
court demonstrating that Sepsis can result, much less did result in this case,
from a suicide attempt by drug overdose.

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added) (quoting Commonwealth v. Flor, 998 A.2d 606, 634 (Pa. 2010)).

While we understand the court’s legitimate concerns regarding Appellant’s

prior conduct before and during trial, it was the Commonwealth’s burden to

demonstrate that he was absent without cause when the court decided to

proceed with the return of the verdict without Appellant present. Indeed, the

district attorney did not once oppose Appellant’s motion to stay or motion for

a mistrial, nor even weigh in at all on the court’s deliberations regarding

Appellant’s absence.4        See N.T., 6/27/16, at 2-12 (prior to the jury’s

question); 23-25 (prior to receiving the jury’s verdict).

       As such, we conclude that the trial court abused its discretion by denying

defense counsel’s request to stay the return of the verdict, thereby violating

Appellant’s statutory right to be present pursuant to Rule 602(A).           The

Commonwealth did not prove, by a preponderance of the evidence, that

Appellant was absent without cause.            At best, the court speculated that

Appellant had attempted to commit suicide based on mere conjecture received

through multiple layers of hearsay, despite Appellant’s suffering from a life-

threatening condition that easily could have been unrelated to any purported

suicide attempt. Evidence of Appellant’s prior misconduct could not overcome

these evidentiary deficiencies supporting the allegation that he was absent

without cause during the return of the verdict. Therefore, the trial court’s
____________________________________________


4 We acknowledge that, for the first time on appeal, the Commonwealth
explicitly agrees with the trial court’s refusal to grant a stay of the
proceedings, and to receive the verdict in absentia, despite its silence during
those proceedings.

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determination that he was absent without cause was manifestly unreasonable.

Alternatively, it also appears to be the result of partiality, given the trial court’s

assumption of the role of the Commonwealth’s advocate in this case.

Accordingly, Appellant is entitled to a new trial.

      We decline to address Appellant’s sentencing claim, as our decision to

grant Appellant a new trial renders that issue moot.

      Judgment of sentence vacated.             Case remanded for a new trial.

Jurisdiction relinquished.

        Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/18




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