Section 602. Presence of the Defendant

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

(B) A corporation may appear by its attorney for all purposes.

Comment

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 preponderance of the evidence. See Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980) (when a constitutional right is waived, the Commonwealth must show by a preponderance of the evidence that the waiver was voluntary, knowing and intelligent); Commonwealth v. Tizer, 454 Pa.Super. 1, 684 A.2d 597 (1996). 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 his trial date or is absent involuntarily is not absent ‘without cause.’’’).

This rule applies to all cases, including capital cases.

A defendant’s presence may be deemed waived by the defendant intentionally failing to appear at any stage of the trial after proper notice. See Commonwealth v. Wilson, 551 Pa. 593, 712 A.2d 735 (1998) (a defendant, who fled courthouse after jury was impaneled and after subsequent plea negotiations failed, was deemed to have knowingly and voluntarily waived the right to be present); Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992) (when a defendant is absent without cause at the time his or her trial is scheduled to begin, the defendant may be tried in absentia).

Nothing in this rule is intended to preclude a defendant from affirmatively waiving the right to be present at any stage of the trial, see e.g., Commonwealth v. Vega, 553 Pa. 255, 719 A.2d 227 (1998) (plurality) (requirements for a knowing and intelligent waiver of a defendant’s presence at trial includes a full, on-the-record colloquy concerning consequences of forfeiture of the defendant’s right to be present). Once a defendant appears before the court, he or she cannot waive his or her right to appear in capital case. See Comonwealth v. Ford, 539 Pa. 85, 650 A.2d 433 (1994) (right of defendant to be present at trial of capital offense is transformed into obligation due to gravity of potential outcome).

Nothing in this rule is intended to preclude a defendant from waiving the right to be present by his or her actions, see e.g., Illinois v. Allen, 397 U.S. 337, 343 (1970) (‘‘[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.’’) and Commonwealth v. Wilson, supra.

The defendant’s right to be present in the courtroom is not absolute. See Commonwealth v. Boyle, 498 Pa. 486, 491, n.7, 447 A.2d 250, 253, n.7 (1982) (defendant’s presence in chambers and at sidebar is not required where he is represented by counsel.) and Commonwealth v. Hunsberger,

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Pa.

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, 58 A.3d 32, 39-40 (2012) (‘‘[A]lthough a defendant has the clear right to participate in the jury selection process, that right is not compromised where . . . the defendant, who was in the courtroom, was not present at sidebar where his counsel was questioning several venirepersons outside the range of his hearing.’’)

Official Note

Rule 1117 adopted January 24, 1968, effective August 1, 1968; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; renumbered Rule 602 and amended March 1, 2000, effective April 1, 2001; amended December 8, 2000, effective January 1, 2001; Comment revised September 21, 2012, effective November 1, 2012; amended May 2, 2013, effective June 1, 2013.

Committee Explanatory Reports:

Final Report explaining the October 28, 1994 amendments published with the Court’s Order at 24 Pa.B. 5841 (November 26, 1994).

Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

Final Report explaining the December 8, 2000 amendments published with the Court’s Order at 30 Pa.B. 6546 (December 23, 2000).

Final Report explaining the September 21, 2012 revision to the second paragraph of the Comment correcting a typographical error published with the Court’s Order at 42 Pa.B. 6251 (October 6, 2012).

Final Report explaining the May 2, 2013 amendments concerning trials conducted in the defendant’s absence published with the Court’s Order at 43 Pa.B. 2710 (May 18, 2013).

The provisions of this Rule 602 amended December 8, 2000, effective January 1, 2001, 30 Pa.B. 6546; amended September 21, 2012, effective November 1, 2012, 42 Pa.B. 6247; amended May 2, 2013, effective June 1, 2013, 43 Pa.B. 2704. Immediately preceding text appears at serial pages (364116) to (364117).