dissenting:
The Majority, after careful and thorough consideration, concludes that Appellant, a fugitive who was tried in absentia, did not validly waive his right to counsel, and the Majority vacates the judgment of sentence and remands for a new trial. I respectfully dissent.
Appellant was charged with five (5) counts of Delivery of Cocaine, and in May, 1996, counsel was appointed for Appellant. At the request of Appellant, the trial court approved the withdrawal of court-appointed counsel and allowed Appellant to appear with private counsel.
Approximately two (2) weeks prior to jury selection, Appellant was found to have crack-cocaine in his possession and in violation of his probation. At this point, Appellant fled the jurisdiction and a warrant was issued for his arrest.
Appellant then failed to appear for jury selection on March 10, 1997, and his private counsel was permitted to withdraw on the basis that Appellant owed his private counsel substantial fees and that Appellant’s absence hindered preparation for trial. At all times relevant hereto, Appellant was aware of the date for jury selection and for trial.
A jury trial was held on March 13, 1997 without the presence of Appellant, and Appellant was convicted on all five (5) charges of delivery of a controlled substance. At the time of sentencing, Appellant was again in custody, declined representation, and filed timely post-trial motions pro se, motions which were denied. Counsel was subsequently appointed for Appellant and this appeal followed.
I respectfully disagree with the conclusion of the Majority that Appellant’s due process rights were violated when he was tried in absentia without representation by an attorney. To the contrary, the trial court was at all times sensitive to the constitutional rights of Appellant. Counsel was appointed at the *1147request of Appellant, counsel was permitted to withdraw and new counsel retained at the request of Appellant, and counsel was offered during the sentencing hearing at which time Appellant declined representation. Counsel was subsequently appointed for this appeal. In short, Appellant was afforded all his constitutional rights and chose to not only violate his probation, but to then flee the jurisdiction despite his knowledge that jury selection was about to begin.
Under the facts of the within case, Appellant voluntarily changed attorneys and at one point voluntarily proceeded pro se. Based on the over-all actions of Appellant, the mere fact that his private counsel was permitted to withdraw prior to the trial in absentia is irrelevant. In fact, by his flight from justice Appellant prevented his own privately retained counsel from preparing a defense so there was absolutely no prejudice to Appellant by the fact that his counsel was permitted to withdraw prior to the trial. Rather, Appellant should be held responsible for his own actions when he knowingly violated probation and then knowingly proceeded to become a fugitive from justice.
Although Appellant is entitled to the assistance of counsel at every “critical stage” of a criminal prosecution, in the instant case he had a “reasonable opportunity to secure private counsel of his own choosing.” See Commonwealth v. Gray, 415 Pa.Super. 77, 608 A.2d 534 (1992). The within case is not a case in which Appellant was denied counsel. Appellant turned down the opportunity to have court appointed counsel and in fact had retained his own private counsel. All the requirements of the Sixth Amendment to the Constitution of the United States pertaining to the assistance of counsel were met.
Clearly, when a defendant fails to appear for trial without cause, he or she may be tried in absentia. Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992); Commonwealth v. Wilson, — Pa.-, 712 A.2d 735 (1998). Here, Appellant knowingly put himself into a fugitive status at a time jury selection was about to begin. I strongly disagree with the Majority decision to reward Appellant with a new trial in light of Appellant’s mocking disregard for not only the trial court but for the entire legal system. It is a dangerous precedent to allow a criminal defendant to manipulate the system in the manner done so by Appellant and to become a fugitive from justice and yet have the trial court prohibited from trying the criminal defendant in absentia.
In conclusion, Appellant knew full well the consequences of his violation of probation, of his flight from the jurisdiction, of his fugitive status, and of a trial in absentia. Appellant’s actions show a blatant disregard for the criminal justice system, and Appellant should not be rewarded with a new trial.
I would affirm the order of the lower court denying his post-trial motions.