J-S71010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PATRICIA NORTON                            :
                                               :
                       Appellant               :   No. 138 EDA 2019

                 Appeal from the Order Entered March 31, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0002388-2013


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                                  Filed: July 23, 2020

       Patricia Norton appeals from her March 31, 2015 judgment of sentence,

which was imposed in absentia.1 We vacate Appellant’s judgment of sentence

and remand for resentencing.

       On January 4, 2013, Appellant cursed at, punched, and then knocked

over Victoria Brown (the “victim”) on the steps of the SEPTA2 station located

in the 1200 block of Broad Street in Philadelphia. She continued to strike the

victim until a third person intervened. Appellant was subsequently arrested

and charged with aggravated assault, simple assault, and recklessly

endangering another person (“REAP”).
____________________________________________


1 Appellant’s appeal is timely filed as she obtained reinstatement of her direct
appeal rights nunc pro tunc on December 10, 2018, through the PCRA.

2 SEPTA is the acronym for the Southeastern Pennsylvania Transit Authority,
the public transportation authority that operates buses, rapid transit,
commuter rail, and light rail in Philadelphia and four surrounding counties.
J-S71010-19



       Prior to trial, the court ordered a psychiatric examination to assess

Appellant’s competency. Following a determination that she was competent

to stand trial, the trial court found her guilty of all charges on December 15,

2014. Appellant’s sentencing was deferred until March 6, 2015, to permit a

Forensic Intensive Recovery3 (“FIR”) evaluation and pre-sentence report.

       On the scheduled sentencing date, the Commonwealth was granted a

continuance due to the unavailability of the victim.     Appellant also did not

appear on that date, and thus, the Commonwealth requested that the trial

court issue a bench warrant to secure her appearance for the rescheduled

hearing on March 30, 2015. Defense counsel accepted service of the warrant

on behalf of his client. On March 30, 2015, Appellant did not appear. Counsel

represented to the court that he sent letters to her, and attempted to email

and call her, but that he had not received any response.        Counsel for the

Commonwealth requested another bench warrant, and that Appellant be

sentenced in absentia. In support of the latter, the Commonwealth asked for

“a little bit of time” to enable its detectives to make the necessary checks.

N.T., 3/30/15, at 4. Defense counsel had no objection to the issuance of a

bench warrant, but opposed the Commonwealth’s request that his client be

sentenced in absentia. The court initially indicated that it would issue the


____________________________________________


3 FIR is a prison deferral initiative in Philadelphia that conducts comprehensive
behavioral health assessments upon eligible participants and offers substance
abuse treatment in lieu of incarceration.

                                           -2-
J-S71010-19


bench warrant, and the Commonwealth objected, insisting that this was

Appellant’s second failure to appear. The court then continued the sentencing

to permit the Commonwealth to complete the appropriate checks, “hopefully

. . . in an hour.”    Id.   Following a recess, the hearing resumed.          The

Commonwealth represented that its witnesses could be ready to testify

regarding “an absentia matter” later that morning, but the trial court

scheduled it for 9:00 a.m., the next morning.

      On March 31, 2015, the court heard testimony from Police Officer

Tanisha Rosaro regarding the Commonwealth’s efforts that morning to locate

Appellant. N.T., 3/31/15, at 5. The police officer testified that she checked

the morgue and various hospitals “with negative results.”         Id.   She also

confirmed that Appellant was not in custody. Id. The officer represented that

she could not find a current address for Appellant. Id. The Commonwealth

asked the court to find that Appellant willfully failed to appear for her

sentencing and proceed in absentia because she failed to appear on March 6,

2015, despite notice of the sentencing hearing; failed to appear on March 30,

2015, in response to a bench warrant nunc pro tunc; and that the police

officer’s check of hospitals, the prison, and the medical examiner’s office failed

to locate her. Id. at 7.

      Defense counsel reminded the court that Appellant had low cognitive

capacity. He pointed out that she was in and out of different facilities both

prior to and following surgery for a brain tumor, as there was a concern that


                                      -3-
J-S71010-19


she was a danger to herself. Id. at 13. He argued that her non-appearance

was involuntary in light of this history.

      The trial court re-examined the record to verify that Appellant had

received notice of the original sentencing date. The record reflected that, on

February 12, 2015, Appellant was ordered to comply with the FIR program

and keep attending Parkside Recovery as a condition of her bail. Id. at 10.

The court ruled that since Appellant did not appear on March 6, 2015, in

response to a subpoena, or on March 30, 2015, in response to a bench warrant

her counsel accepted on her behalf, the Commonwealth would be permitted

to proceed in absentia.

      The Commonwealth introduced impact testimony from the victim, and

recommended that Appellant be sentenced to three to six years of

incarceration followed by five years of reporting probation. Id. at 19. Defense

counsel asked for a mitigated sentence, noting that Appellant had a prior

record score of zero, she suffered from a brain tumor when she perpetrated

the unprovoked attack on the victim, she had pre-existing mental health

issues, and she had not been arrested or in trouble since her release almost

two years before.    The Commonwealth argued that Appellant was smarter

than portrayed and that she “did not care enough to appear for her

sentencing.” Id. at 25.

      The court sentenced Appellant in absentia to the term recommended by

the Commonwealth on the aggravated assault charge. It acknowledged that


                                      -4-
J-S71010-19


the simple assault conviction merged, and stated that it was not imposing any

additional sentence for REAP.

      Appellant’s counsel filed a post-sentence motion the next day. In that

motion, counsel averred that his client’s participation in the court-ordered

recovery program explained her failure to appear in court on March 6, 2015.

Her counselor at Parkside-Frankford confirmed that Appellant was attending

group therapy three times per week, and individual counseling once per week,

and that she was present at an orientation program on March 6, 2015.

Appellant pled that she mistakenly assumed that her attendance in the court-

ordered program took precedence over her appearance in court on that date.

Under the circumstances, Appellant maintained that it was an error or abuse

of discretion to sentence her in absentia. The motion was denied by operation

of law.

      Appellant appealed on August 13, 2015, and was ordered to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. No

statement was filed. In its January 29, 2016 opinion, the court maintained

that all of Appellant’s claims were waived and that her appeal should be

dismissed for failure to file a Rule 1925(b) statement. On April 21, 2016, this

Court dismissed the appeal for failure to file a brief.

      On July 24, 2017, Appellant filed a pro se PCRA petition. Counsel was

appointed, and filed an amended petition on her behalf. On December 10,




                                      -5-
J-S71010-19


2018, the PCRA court ordered reinstatement of Appellant’s direct appeal rights

and afforded her counsel the opportunity to file a Rule 1925(b) statement.

      Appellant presents one issue for our review: “Did the sentencing court

deny Appellant her constitutional right to due process under the United States

and Pennsylvania Constitutions when the court, over objection, sentenced

Appellant on March 31, 2015, without Appellant being present?” Appellant’s

brief at 2.

      Appellant alleges a violation of her right to be present in the courtroom

at every stage of a criminal trial.        As our High Court reaffirmed in

Commonwealth v. Tharp, 101 A.3d 736, 762 (Pa. 2014), that right, while

not absolute, is guaranteed by Article I, § 9 of the Pennsylvania Constitution

and Pa.R.Crim.P. 602.    We review such claims de novo, and our scope of

review is plenary. See Commonwealth v. Tejada, 161 A.3d 313 (Pa.Super.

2017).

      Pa.R.Crim.P. 602(A) provides that “[t]he 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 in circumstances not

present here. When a defendant is absent, the Commonwealth has the burden

of proving by a preponderance of the evidence that the absence is willful.

Commonwealth v. Decosta, 197 A.3d 813 (Pa.Super. 2018); see also

Commonwealth v. Kelly, 78 A.3d 1136, 1139-40 (Pa.Super. 2013)

(citing Commonwealth v. Scarborough, 421 A.2d 147 (Pa. 1980) (holding


                                     -6-
J-S71010-19


that when a constitutional right is waived, the Commonwealth must show by

a preponderance of the evidence that the waiver was voluntary, knowing, and

intelligent)).

      Appellant contends that the Commonwealth did not prove by a

preponderance of the evidence that she willfully failed to attend her

sentencing, and that court erred in sentencing her in absentia. She argues

that the Commonwealth did not establish that she was repeatedly absent or

that, given her individual circumstances, she made a knowing and intelligent

decision to abscond.     Moreover, she faults the Commonwealth for its

halfhearted attempt to locate her.

      The Commonwealth concedes that it did not meet its burden, and urges

this Court to vacate judgment of sentence and remand for resentencing.

Commonwealth’s brief at 10. No attempt was made to locate Appellant where

she was known to reside or likely to be found.    Id.   Furthermore, its one

attempt to locate Appellant, over a two or three hour span, and limited to

checking local hospitals, the jail, and the morgue, was inadequate to justify

sentencing anyone in absentia, especially “a person with [Appellant]’s mental

illness, substance abuse problems, cognitive impairments, and apparent lack

of notice of her hearing.” Id.

      The Commonwealth acknowledges that the facts herein contrast sharply

with those in Commonwealth v. Hill, 737 A.2d 255, 262 (Pa. 1999), where

“numerous attempts” were undertaken to find the appellant before the court


                                     -7-
J-S71010-19


sentenced him in absentia. See also Commonwealth v. King, 695 A.2d 412

(Pa.Super. 1997 ) (trial in absentia proper where defendant failed to appear

four times over seven months). Moreover, in determining that Appellant knew

and voluntarily waived her constitutional right to be present at sentencing,

the Commonwealth and the court largely ignored Appellant’s intellectual

disability, mental health issues, and her recent surgery for the removal of a

brain tumor, considerations that tended to undermine that notion.

      The   situation   herein   is   factually    distinguishable   from   that   in

Commonwealth v. Williams, 2019 Pa. Super. Unpub. LEXIS 4489

*(Pa.Super. Dec. 4, 2019) (unpublished memorandum), where we upheld the

sentencing of the appellant in absentia.          Williams was given bail with the

express condition that he complete a self-help drug treatment program. He

received notice of his sentencing hearing and knew he was required to be

present. It was undisputed that he absconded from the drug treatment facility

within three hours of his admission, and had no valid reason for doing so, or

failing to appear at his scheduled sentencing.

      After a thorough review of the record, we agree that the Commonwealth

failed to establish by a preponderance of the evidence that Appellant willfully

absented herself from the sentencing proceeding. It was unclear whether she

had actual notice of the date of the rescheduled sentencing. Additionally, the

two or three hours spent by the Commonwealth to locate her were limited to

ruling out that she was hospitalized, in jail, or deceased. No attempt was


                                       -8-
J-S71010-19


made to contact her family or her last known residences to locate her. Despite

knowledge that she had been accepted into a recovery program, the

Commonwealth did not attempt to contact the program to ascertain her status

and whereabouts. Absent herein is proof that would support a reasonable

inference that Appellant knowingly and willfully failed to appear at her

sentencing, and justify imposing sentence in absentia.     We commend the

Commonwealth for its candor to this Court in acknowledging that fact.

      Judgment of sentence vacated.       Case remanded for resentencing.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/20




                                    -9-
