J-S70011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LEROY LUNDY,

                            Appellant                No. 1681 EDA 2015


             Appeal from the Judgment of Sentence April 29, 2015
              in the Court of Common Pleas of Delaware County
              Criminal Division at No.: CP-23-CR-0007716-2014


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 01, 2015

        Appellant, Leroy Lundy, appeals from the judgment of sentence

imposed pursuant to his bench conviction of possessing an instrument of

crime and simple assault.1 Counsel has filed a petition to withdraw pursuant

to Anders v. California, 386 U.S. 738, 744 (1967).         We quash Appellant’s

appeal and deny counsel’s petition as moot.

        On January 7, 2015, the Commonwealth filed a criminal information

against Appellant charging him with recklessly endangering another person,2

as well as the aforementioned crimes. The charges arose from an incident in
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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 907(a) and 2701(a)(3), respectively.
2
    18 Pa.C.S.A. § 2705.
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which Appellant pointed a gun at the victim during an argument. On March

11, 2015, a waiver trial commenced against Appellant, but it was adjourned

due to the unavailability of a defense witness. Trial resumed on March 13,

2015, and, the same day, the court convicted Appellant of possession of an

instrument of crime and simple assault, and ordered the preparation of a

presentence investigation report (PSI).

        On April 29, 2015, the court sentenced Appellant to an aggregate term

of not less than one nor more than two years of incarceration, to be followed

by three years’ probation.        Appellant was deemed ineligible for recidivism

risk reduction incentive (RRRI)3 consideration, and given a credit of fifty-nine

days’ time-served.        At Appellant’s request, the court permitted him to

remain on bail to complete previously arranged work obligations. As part of

his release, the court ordered that Appellant wear a global positioning

device, and report to the correctional facility on May 15, 2015. However, on

May 4, 2015, the Delaware County Pre-Trial Services and Bail Office advised

the court that Appellant had fled to the Virginia Beach, Virginia area. The

same day, the court issued a bench warrant for his apprehension.

        On May 28, 2015, Appellant’s counsel filed a timely notice of appeal

and the court ordered Appellant to file a Rule 1925(b) statement of errors

complained of on appeal.           See Pa.R.A.P. 1925(b).   On June 17, 2015,
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3
    61 Pa.C.S.A. §§ 4501-4512.




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Appellant’s counsel filed a timely statement in accordance with Rule

1925(c)(4) in which he informed the trial court that he intended to file an

Anders brief with this Court, which he did on September 4, 2015.                See

Pa.R.A.P. 1925(c)(4). On June 24, 2015, the trial court issued an opinion.

See Pa.R.A.P. 1925(a). On November 13, 2015, Appellant returned to the

custody of the Delaware County Prison.

         The Anders brief raises one issue of arguable merit:       “Whether the

evidence was insufficient to convict [Appellant] of the offenses at issue

herein where the evidence was so weak and inconclusive that a reasonable

trier of fact would not have been satisfied [sic] of his guilt?” (Anders Brief,

at 2).

         However, because we are compelled to quash this appeal on the basis

of Appellant’s fugitive status, we are precluded from addressing the merits of

Appellant’s claim, counsel’s Anders brief, or counsel’s petition to withdraw.4

         It is well-settled that:

                Guaranteed by article 5, section 9 of the Pennsylvania
         Constitution, the constitutional right to appeal is a personal right
         which may be relinquished only through a knowing, voluntary
         and intelligent waiver. Commonwealth v. Passaro, [] 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.


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4
  However, our quashal herein conclusively disposes of the appeal, and
effectively ends counsel’s appellate representation.



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            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, [] 705 A.2d 827, 829
     ([(Pa.)] 1997), the Supreme Court set forth the 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


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              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. . . .

Commonwealth v. Doty, 997 A.2d 1184, 1186-88 (Pa. Super. 2001) (most

quotation marks, most citations, and footnotes omitted) (original emphasis

omitted; some emphasis added).5

       In Doty, the appellant’s counsel filed a timely notice of appeal

although appellant remained a fugitive during the thirty-day appeal period.

See id. at 1186. This Court found that “[t]he fact that [appellant’s] counsel

filed a [n]otice of appeal during the appeal period is of no moment.

[Appellant] 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) (emphasis added).            The Court

concluded     that   appellant’s    challenges   were   forfeited   because   of   his


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5
   The Doty Court also observed the difference between waiver and
forfeiture: “Waiver is an intentional and voluntary relinquishment of a
known right. By contrast, forfeiture . . . does not require that the defendant
intend to relinquish a right, but rather may be the result of the defendant’s
extremely serious misconduct or extremely dilatory conduct.” Doty, supra
at 1189 (citations and internal quotation marks omitted).



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“extremely serious misconduct during his direct appeal.”        Id. (citation and

internal quotation marks omitted).

        Likewise, here, Appellant fled the jurisdiction within days of the court’s

imposition of his judgment of sentence. (See Trial Court Opinion, 6/24/15,

at 3). Counsel filed a timely notice of appeal on his behalf, but this is of no

moment where Appellant returned to the jurisdiction well-beyond the thirty-

day appeal period, which expired on May 28, 2015. See Pa.R.A.P. 903(a);

Doty, supra at 1189.         Therefore, Appellant has “forfeited his right to

appellate review of all claims raised in the instant appeal[.]” Doty, supra at

1189.

        Appellant’s appeal is quashed.    See Doty, supra at 1189 (quashing

appeal where appellant fled jurisdiction and remained a fugitive during the

appeal period, thereby forfeiting his right to appellate review); see also

Commonwealth v. Hunter, 952 A.2d 1177, 1178 (Pa. Super. 2008)

(quashing where appellant not entitled to pursue appeal because he

remained a fugitive from time of scheduled sentencing until after counsel

had filed appeal and by the time he was apprehended appeal deadline had

passed).

        Appeal quashed. Counsel’s petition to withdraw denied as moot.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




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