J-A02011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

FRANK ADAMS

                            Appellant                        No. 657 EDA 2015


            Appeal from the Judgment of Sentence January 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006821-2012


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                       FILED APRIL 27, 2017

        Frank Adams appeals from the judgment of sentence entered January

30, 2015, in the Philadelphia County Court of Common Pleas.                 The court

sentenced Adams in absentia to an aggregate term of 10 to 20 years’

imprisonment following a four-day jury trial, also in absentia, in which

Adams was convicted of aggravated assault, simple assault, recklessly

endangering      another    person     (REAP),   and   two    counts   of   conspiracy

(aggravated assault and simple assault).1 For the reasons set forth below,

we affirm the judgment of sentence.

        The trial court concisely set forth the facts as follows:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702(a), 2701(a), 2705, and 903(c), respectively.
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             On May 20, 2012, [Adams], along with his co-defendant
       [and brother,] Nicky Adams, engaged in a hand-to-hand fight
       with the victim outside of a church, which was eventually broken
       up by members of the church. The victim went to his car, and
       was about to head home when [Adams] went to his own vehicle,
       obtained a tire iron and handed it to co-defendant Nicky Adams.
       The co-defendant proceeded to the victim’s car, and as the
       victim leaned out the window, the co-defendant swung the tire
       iron against the victim’s head, causing a head laceration that
       required seven staples.

Trial Court Opinion, 12/2/2015, at 2-3.

       On June 13, 2014, at the conclusion of a four-day trial in absentia, the

jury convicted Adams of the above-mentioned crimes.2          On January 30,

2015, the trial court held a sentencing proceeding, and sentenced Adams in

absentia to a term of five and one-half to 11 years’ incarceration for

aggravated assault and a consecutive term of four and one-half to nine

years’ imprisonment for conspiracy (aggravated assault). The court imposed

no further penalty with respect to the remaining charges.        On March 2,

2015, counsel for Adams filed a notice of appeal.3,   4



____________________________________________


2
   The jury acquitted him of an additional count of aggravated assault
(causing bodily injury with a deadly weapon), simple assault (fight or scuffle
entered into by mutual consent), and conspiracy to commit those forms of
assault.
3
  Because the 30th day, March 1, 2015, fell on a Sunday, Adams had until
Monday, March 2, 2015, to file a timely notice of appeal. See 1 Pa.C.S. §
1908.
4
    On April 13, 2015, the trial court ordered Adams to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Adams filed a concise statement on May 4, 2015, and a supplemental
(Footnote Continued Next Page)


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      Adams raises the following issues on appeal:

          1. Did not the trial court impose an illegal sentence under
             [18] Pa.C.S. § 906 where [Adams] was sentenced to
             consecutive terms for two inchoate offenses, aggravated
             assault by attempting to cause serious bodily injury and
             conspiracy to commit the same?

          2. Did not the trial court err and abuse its discretion by
             permitting the Commonwealth’s attorney to argue
             evidence not of record during his closing argument, in
             particular that when staples instead of stitches are used
             that implies a serious injury, without any curative
             instruction to the jury, permitting the jury to rely upon the
             prosecutor’s allegation of a serious injury instead of the
             medical evidence in the record?

          3. Although a fugitive at trial, are not [Adams]’s claims
             justiciable as he is presently within the jurisdiction of the
             Court, his flight did not interfere with the appellate
             process, the trial court sanctioned him for his fugitive
             status by sentencing him to 10 – 20 years[’] incarceration
             when he had no prior record, there was no indication that
             trial court denied his post-sentence motion on any other
             ground than the merits and where his lack of education
             coupled with the fact that he had no prior contact with the
             system would make a forfeiture an abuse of discretion?

Adams’s Brief at 4-5.

      Based on the nature of Adams’s claims and the trial court’s disposition,

we will address his third issue first. In his final argument, Adams complains

the trial court erred by finding that because he was tried and sentenced in

absentia, he forfeited all claims on appeal.      Adams’s Brief at 22.   Adams

states:
                       _______________________
(Footnote Continued)

statement on September 16, 2015. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on December 2, 2015.



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       This is not the state of the law of this Commonwealth. In fact,
       notwithstanding the somewhat convoluted history of our
       Supreme Court’s decisions in this area, the thread that runs
       through all the cases over the last several decades, save one
       that has since been repudiated, is that appellate courts retain
       discretion to decide claims before them and, in circumstances
       such as those presented here, it would be an abuse of discretion
       to find forfeiture.

Id. at 22.         In support of his argument, Adams largely relies on

Commonwealth v. Galloway, 333 A.2d 741 (Pa. 1975), Commonwealth

v. Passaro, 476 A.2d 346 (Pa. 1984), Commonwealth v. Luckenbaugh,

550 A.2d 1317 (Pa. 1988), Commonwealth v. Jones, 610 A.2d 439 (Pa.

1992), Commonwealth v. Chopak, 615 A.2d 696 (Pa. 1992), and

Commonwealth v. Deemer, 705 A.2d 827 (Pa. 1997). Adams’s Brief at

23-31.

       Contrary to Adams’s argument, there is more recent case law which

controls this matter.       In Commonwealth v. Doty, 997 A.2d 1184 (Pa.

Super. 2010), which is substantially similar to the present matter, a panel of

this Court set forth the following:

       Guaranteed by article 5, section 9 of the Pennsylvania
       Constitution,[5] the constitutional right to appeal is a personal
____________________________________________


5
    Article 5, section 9 of the Pennsylvania Constitution states:

       There shall be a right of appeal in all cases to a court of record
       from a court not of record; and there shall also be a right of
       appeal from a court of record or from an administrative agency
       to a court of record or to an appellate court, the selection of
       such court to be as provided by law; and there shall be such
       other rights of appeal as may be provided by law.
(Footnote Continued Next Page)


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      right which may be relinquished only through a knowing,
      voluntary and intelligent waiver. Commonwealth v. Passaro,
      504 Pa. 611, 476 A.2d 346, 347 ([(Pa.)] 1984). However . . . a
      defendant who is a fugitive from justice during the appellate
      process may forfeit the right to appellate review.

      Our Supreme Court has recognized that “the right to appeal is
      conditioned upon compliance with the procedures established by
      [the Pennsylvania Supreme Court], and a defendant who
      deliberately chooses to bypass the orderly procedures afforded
      one convicted of a crime for challenging his conviction is bound
      by the consequences of his decision.” Passaro, 476 A.2d at
      347. In Passaro, the defendant escaped from custody after
      filing his appellate brief, but before the disposition of his appeal.
      Id. at 347-48. On the basis of his fugitive status, a panel of this
      Court quashed the defendant’s appeal. Id. at 348. After his
      capture, the defendant petitioned for reinstatement of his direct
      appeal rights. Id. When this Court denied the defendant’s
      petition, he presented his petition for reinstatement to the
      Pennsylvania Supreme Court. Id.

      Notwithstanding the defendant’s return to the jurisdiction of the
      courts, the Supreme Court held that “a defendant who
      deliberately chooses to bypass the orderly procedures afforded
      one convicted of a crime for challenging his conviction is bound
      by the consequences of his decision.” Id. Thus, “a defendant
      who elects to escape from custody forfeits his right to appellate
      review. It would be unseemly to permit a defendant who has
      rejected the appellate process in favor of escape to resume his
      appeal merely because his escape proved unsuccessful.” Id. at
      349. On this basis, the Supreme Court denied the defendant’s
      [p]etition to reinstate his direct appeal. Id.

                                                 …

      Judicial interpretations of Passaro and its effect upon a
      fugitive’s appeal rights led the Supreme Court to modify its
      holding. In Commonwealth v. Deemer, 550 Pa. 290, 705
      A.2d 827, 829 ([(Pa.)] 1997), the Supreme Court set forth the
                       _______________________
(Footnote Continued)


Pa. Const. art. 5, § 9.



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       following analysis to be employed by Pennsylvania courts in
       determining a fugitive’s appeal rights:

          If [the defendant] became a fugitive between post-trial
          motions and an appeal and he returns before the time for
          appeal has expired and files an appeal, he should be
          allowed to appeal. If he returns after the time for filing an
          appeal has elapsed, his request to file an appeal should be
          denied. If he becomes a fugitive after an appeal has been
          filed, his appeal should be decided and any fugitive status
          should be addressed separately. In short, a fugitive who
          returns to court should be allowed to take the system of
          criminal justice as he finds it upon his return: if time for
          filing has elapsed, he may not file; if it has not, he may.

       Id. at 829.

                                               …

       On direct appeal, therefore, a defendant’s status during
       the 30-day appeal period controls whether an appellate
       court will hear his appeal.

Doty, 997 A.2d at 1186-1188 (some quotation marks, citations and

footnotes omitted; emphasis added).

       In Doty, the defendant’s trial counsel filed a notice of appeal even

though the defendant remained a fugitive during the 30-day appeal period.6

On appeal, the panel held: “The fact that [the defendant]’s counsel filed a

Notice of appeal during the appeal period is of no moment. [The defendant]

could not resurrect his appellate rights because he failed to return to the

court’s jurisdiction prior to the expiration of the appeal period.” Id. at 1189

(citations omitted).
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6
    See Pa.R.A.P. 903(a)



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      Turning to the case sub judice, the trial court found the following:

      [Adams] failed to appear for the entirety of his trial, his
      sentencing hearing and was a fugitive during his 30-day appeal
      period.    At sentencing, the Commonwealth explained the
      numerous efforts made to track down [Adams]. As noted above,
      [Adams] is still a fugitive as of the date of this opinion.
      The fact that [Adams]’s counsel filed a Notice of Appeal during
      the appeal period is of no matter, as [Adams]’s fugitive status is
      unchanged. See Doty, 997 A.2d at 1189. As [Adams] failed to
      appear for his sentencing and is still a fugitive, [Adams] has
      forfeited all possible issues and his appeal should be quashed.
      See id.

Trial Court Opinion, 6/30/2015, at 3-4 (emphasis added).

      We agree with the trial court’s well-reasoned decision.           Because

Adams was a fugitive during his trial and sentencing, and remained a

fugitive during the 30-day period in which a direct appeal could have been

filed, he has forfeited his right to appellate review of all claims raised in the

present appeal pursuant to Doty, supra. Accordingly, we need not address

the remaining claims.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2017




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