J-S82001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CLYDE EARL TONKIN

                            Appellant                No. 1462 MDA 2015


              Appeal from the Judgment of Sentence July 20, 2015
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002577-2012


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 22, 2017

        Clyde Earl Tonkin appeals from the judgment of sentence imposed on

July 20, 2015, in the Court of Common Pleas of Luzerne County following his

jury trial, in absentia, on charges of statutory sexual assault, aggravated

indecent assault and related charges.1         Tonkin received an aggregate

sentence of 16 to 32 years’ incarceration.      In this timely appeal, 2 Tonkin

raises one issue: “Whether the trial court erred in trying [Tonkin] in absentia

where there was no evidence indicating reasoning for [Tonkin’s] absence and

not appear[ing] at any point during the proceedings?” Tonkin’s Brief at 7.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3122.1(b) and 3125(a)(8), respectively.
2
 On May 29, 2015, Tonkin’s PCRA petition was granted reinstating his direct
appellate rights.
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After a thorough review of the submissions by the parties, the certified

record, and relevant law, we affirm.

       The underlying facts of this matter are not relevant to the disposition.

Therefore, we merely relate that Tonkin engaged in an ongoing sexual

relationship with his 13-year-old niece by marriage, culminating in her giving

birth to their child. Just prior to her giving birth, the two fled Pennsylvania,

but were caught in Ohio after Tonkin’s car broke down.

       Tonkin was returned to Pennsylvania, at which time he was charged

with the instant crimes. He was also charged with other crimes regarding

six other cases, the details of which are not found in this record.      Shortly

before the instant trial, Tonkin was released on bail, informed of his trial

date, and was told he was required to appear for trial. As a condition of bail,

Tonkin was placed on house arrest and was required to wear an electronic

monitor (ankle bracelet). However, on the day of trial, Tonkin cut the

monitor from his leg and did not appear for trial.3 Tonkin was apprehended

three or four days after the trial, having been found hiding in some woods.4
____________________________________________


3
  In Pennsylvania, it was not until 1992 that a defendant could be tried in
absentia if he was not present at the beginning of the trial. In announcing
this rule, our Supreme Court reasoned:

       We hold that when a defendant is absent without cause at the
       time his trial is scheduled to begin, he may be tried in absentia,
       as Pa.R.Crim.P. 1117(a) contemplates.

          A contrary rule ... would be a travesty of justice. It would
          allow an accused at large upon bail to immobilize the
(Footnote Continued Next Page)


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        The law regarding trials in absentia is as follows:

        The Sixth Amendment to the United States Constitution, Article
        I, Section 9 of the Pennsylvania Constitution and Rule 1117(a) [5]
        of the Pennsylvania Rules of Criminal Procedure guarantee the
        right of an accused to be present in court at every stage of a
        criminal trial. A defendant who has not been charged with a
        capital offense may, however, waive that right expressly or
        impliedly. Commonwealth v. Ford, 539 Pa. 85, 100-01, 650
        A.2d 433, 440 (1994), cert. denied, 514 U.S. 1114, 115 S.Ct.
        1970, 131 L.Ed.2d 859 (1995) (denying a capital defendant the
        right to absent himself from trial despite the defendant's
        assertion that his menacing appearance precluded any possibility
        of a fair trial).

Commonwealth v. Tizer, 684 A.2d 597, 602 (Pa. Super. 1996).

        Additionally, Pa.R.Crim.P. 602 states, in relevant part:

        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 the trial shall not
        preclude proceeding with the trial, including the return of the
        verdict and the imposition of sentence.
                       _______________________
(Footnote Continued)

           commencement of a criminal trial and frustrate an already
           overtaxed judicial system until the trial date meets, if ever,
           with his pleasure and convenience. It would permit a
           defendant to play cat and mouse with the prosecution to
           delay the trial in an effort to discourage the appearance of
           prosecution witnesses.... A defendant has a right to his
           day in court, but he does not have the right unilaterally to
           select the day and hour.
Commonwealth v. Sullens, 619 A.2d 1349, 1352 (Pa. 1992) (citation
omitted).
4
    See N.T. Sentencing 7/20/15, at 12-13.
5
    Now Rule 602.



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Pa.R.Crim.P. 602(A).

     The comment to Rule 602 states:

     This rule was amended in 2013 to clarify that, upon a finding
     that the absence was without cause, the trial judge may conduct
     the trial in the defendant’s absence when the defendant fails to
     appear without cause at the time set for trial or during trial. The
     burden of proving that the defendant’s absence is without cause
     is upon the Commonwealth by a fair preponderance of the
     evidence. See also Commonwealth v. Bond, 693 A.2d 220,
     223 (Pa. Super 1997) (“[A] defendant who is unaware of the
     charges against him, unaware of the establishment of the trial
     date or is absent involuntarily is not absent ‘without cause.’”).

Pa.R.Crim.P. 602, Comment (some citations omitted).

     Finally,

     A defendant has the absolute right to be present at all stages of
     the criminal proceedings against him. Pa.R.Crim.P 602(A);
     Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349, 1351
     (1992). The trial court has the discretion to grant or deny a
     request for a continuance. See, Pa.R.Crim.P. 106(C). Such grant
     or denial will be reversed only on a showing of an abuse of
     discretion. Commonwealth v. Ross, 465 Pa. 421, 350 A.2d
     836, 837 n.2 (1976). “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.”
     Commonwealth v. McAleer, 561 Pa. 129, 748 A.2d 670, 673
     (2000).

Commonwealth v. Pantano, 836 A.2d 948, 950 (Pa. Super. 2003).

     As noted above, it was the Commonwealth’s burden to demonstrate

Tonkin’s absence was without cause. A hearing was held approximately two

hours after the trial was scheduled to commence, at which, the following

was disclosed:




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     THE COURT: Pending before the Court is a request under Rule
     602 of the Pennsylvania Rules of Criminal Procedure to hold trial
     in absentia in this matter. We note that on January 17th of this
     year we had a hearing at which Mr. Tonkin was present. At
     which time we indicated that his jury trial would commence
     Monday, April 15th at nine o’clock. It’s now five after eleven.
     Mr. Tonkin has not appeared. And we’ll note that he was
     released last Thursday on bail?

     [THE COMMONWEALTH]: Yes, Your Honor. He posted bail. And
     one of the conditions of that bail posting was also that he be on
     time for today’s trial and was specifically told that it started at 9
     a.m.

     THE COURT: Mr. Tonkin has been notified more than once of
     today’s trial date. Again, we’re unaware of any request by him
     or someone calling on his behalf to continue this matter for some
     legitimate reason. As far as I’m concerned he is absent without
     any legitimate cause and we’re going to proceed to trial.

     [THE COMMONWEALTH]: Your Honor, if I may, I’d like to just
     place on the record.     I did have some further information
     become available to me since we last left the courtroom. I
     contacted Courtney Smith from Smith Bail Bonds approximately
     10:15. She indicated that she had just received an alert from
     his bracelet. She said an alert means that he has cut the
     bracelet off. She gave me the last location of where that had
     occurred which was in Pittston. The Pittston police are currently
     looking for him. And that occurred this morning.

     THE COURT: Thank you.

     [DEFENSE COUNSEL]: Your Honor, another thing is obviously the
     defendant[’]s at a disadvantage not being present. So I would
     oppose the trial in absentia. Maybe he might be apprehended at
     a later date. I don’t know that for sure.

     THE COURT: He is absent by his own choice, and any
     disadvantage he suffers as a result of that is solely on his
     shoulders.

     [DEFENSE COUNSEL]: I want to state also, as an officer of the
     Court, I did speak with him last week, Tuesday, certainly in
     preparation for the trial and to discuss it. And he changed his

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      mind. And he certainly knows that he’s required to be present.
      Although he was incarcerated at that point he knows about the
      trial date, no doubt in my mind.

N.T. Pre-Trial Hearing, 4/15/2013 at 6-8.

      Our review of the notes of testimony leads us to conclude that the

Commonwealth demonstrated Tonkin had intentionally and voluntarily

absented himself from his scheduled trial.     Here, Tonkin was manifestly

aware of the trial date, he had not appeared more than two hours past the

scheduled commencement of trial, neither he nor any other person

contacted the court to provide any reason why he was not present, and,

most importantly, he intentionally removed and abandoned his electronic

monitor, and that monitor was ultimately located away from his home even

though he had been placed on house arrest. Based upon this evidence, the

trial court reasonably concluded Tonkin had voluntarily waived his right to be

present during trial.     Accordingly, there was no abuse of discretion in

conducting Tonkin’s trial in absentia.

      Judgment of sentence affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2017




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