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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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Com. v. Tonkin, C.
Combined Opinion