J-S71010-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PATRICIA NORTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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”). 

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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. 
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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 

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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.
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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 
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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 
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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 courtordered 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, 
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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
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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 
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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 
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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