J-S56026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HASSON WILLIAMS                            :
                                               :
                       Appellant               :   No. 3434 EDA 2018

       Appeal from the Judgment of Sentence Entered November 26, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004466-2018


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 04, 2019

       Appellant, Hasson Williams, appeals from the judgment of sentence

entered on November 26, 2018, following his open guilty plea to persons not

to possess a firearm.1 We affirm.

       We briefly summarize the facts and procedural history of this case as

follows. On May 2, 2018, the Philadelphia police executed a search warrant

at a residence on East Thayer Street in Philadelphia, Pennsylvania.        N.T.,

9/12/2018, at 17. The police recovered a loaded .45 caliber semi-automatic

handgun from underneath a bed in a bedroom on the second floor. Appellant

and a woman were present and taken into custody. Id.           After waiving his

rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Appellant

admitted that he placed the firearm under the bed. Id. at 18. Appellant had

____________________________________________


1   18 Pa.C.S.A. § 6105.
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a prior conviction for possession with intent to deliver narcotics pursuant to

35 P.S. § 780-113(a)(30).      Id.    Following a colloquy at a hearing on

September 12, 2018, Appellant pled guilty to the aforementioned charge, but

left his sentence open for the trial court to decide. Id. at 18-19. The trial

court ordered a pre-sentence investigation report and mental health diagnosis

and scheduled a sentencing hearing for November 26, 2018.       Id. at 19-20.

      Appellant failed to appear for the sentencing hearing on November 26,

2018. N.T., 11/26/2018, at 3-4. Notwithstanding Appellant’s absence, the

trial court recounted at sentencing that, by order dated October 31, 2018, it

granted Appellant’s request for release on bail to receive inpatient care at a

drug treatment facility. Id. at 14-15. However, prior to modifying Appellant’s

bail, the trial court gave Appellant notice that the sentencing hearing would

proceed on November 26, 2018 and that the trial court would proceed in

absentia should he fail to appear.    Id. at 15. The trial court then heard

testimony that Appellant absconded from the drug treatment facility three

hours after placement. Id. When Appellant failed to appear for the sentencing

hearing, Appellant’s counsel made an oral motion purporting to withdraw

Appellant’s guilty plea prior to sentencing, claiming that if Appellant were

present he would assert his innocence. Id. at 17-18. As an alternative basis

for relief, Appellant’s counsel argued that withdrawing Appellant’s guilty plea

was warranted, because a municipal court judge suppressed all of the

evidence in co-defendant’s case. Id. at 18. The trial court denied relief on

the motion to withdraw Appellant’s guilty plea.    Id. at 19. The trial court

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sentenced Appellant, in absentia, to five to ten years of imprisonment. Id. at

30. This timely appeal resulted.2

       On appeal, Appellant presents the following issues3 for our review:

          I. Whether the trial court abused its discretion and
             committed reversible error when the court denied an
             objection and sentenced [Appellant] in absentia[?]

         II. Whether the trial court abused its discretion and
             committed reversible error when the court denied
             [Appellant’s] pre-sentence motion to withdraw [his] guilty
             plea[?]

Appellant’s Brief at 8 (complete capitalization omitted).

       In the first issue we examine, Appellant claims that the trial court

abused its discretion by sentencing him in absentia.        Id. at 17-19.    More

specifically, Appellant contends that “the reasons for [Appellant’s] failure to

appear at [] sentencing were not clear” because “[t]he only information
____________________________________________


2   Counsel for Appellant filed a notice of appeal on December 3, 2018 and
then timely filed a concise statement pursuant to Pa.R.A.P. 1925(b). The trial
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on April 10, 2019. We
note that Appellant’s fugitive status remains unclear. Our Supreme Court,
however, has determined that counsel cannot preserve a fugitive defendant’s
appellate rights by sua sponte filing a notice of appeal. See Commonwealth
v. Adams, 200 A.3d 944, 955 (Pa. 2019) (“regardless of whether counsel has
filed a notice of appeal in the fugitive's absence, if the period for filing an
appeal has not expired, the fugitive is entitled to file an appeal upon his return;
and, if the time for filing has elapsed, the fugitive no longer enjoys the right
to file an appeal”). An appellant may forfeit his appellate rights when he
becomes a fugitive and, in those instances, it is proper to affirm the underlying
judgment of sentence. Id. While Appellant’s current status is unknown, we
have addressed the merits of this appeal as if he has been returned to custody.
However, if Appellant remains absent, we note his status as a separate basis
for rejecting this appeal.

3   We reordered Appellant’s issues for ease of discussion and disposition.

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available was that [Appellant] left the inpatient drug program without

permission to do so.” Id. at 18-19. Appellant also asserts that there was no

evidence that Appellant sought to delay sentencing or that continuing the

sentencing   hearing   would   adversely   affect   the   trial   court’s   efficient

administration. Id. at 19.

     Our Supreme Court has decided:

     A person accused of a crime has a constitutional right pursuant to
     the Sixth Amendment of the United States Constitution and Article
     1, § 9 of the Pennsylvania Constitution to be present at every
     stage of a criminal trial. In non-capital cases, a defendant may,
     by his actions, waive this right expressly or implicitly. The waiver
     must be knowing and voluntary. When a defendant is initially
     present at the time the trial commences, then flees or fails to
     attend further proceedings, he or she is deemed to have
     knowingly and voluntarily waived his or her right to be present.
     Courts in this Commonwealth have consistently held that a trial
     court may, in its discretion, conduct a trial in absentia when the
     defendant absconds without cause after the trial commences.

     The United States Supreme Court has characterized the reasoning
     supporting trials in absentia, as follows:

        It does not seem ... to be consonant with the dictates of
        common sense that an accused person, being at large upon
        bail, should be at liberty, whenever he pleased, to withdraw
        himself from the courts of his country and to break up a trial
        already commenced. The practical result of such a
        proposition, if allowed to be law, would be to prevent any
        trial whatever until the accused person himself should be
        pleased to permit it....

        The question is one of broad public policy, whether an
        accused person, placed upon trial for crime, and protected
        by all the safeguards with which the humanity of our present
        criminal law sedulously surrounds him, can with impunity
        defy the processes of that law, paralyze the proceedings of
        courts and juries, and turn them into a solemn farce, and
        ultimately compel society, for its own safety, to restrict the
        operation of the principle of personal liberty. Neither in

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         criminal nor in civil cases will the law allow a person to take
         advantage of his own wrong. And yet this would be precisely
         what it would do if it permitted an escape from prison, or an
         absconding from the jurisdiction while at large on bail,
         during the pendency of a trial before a jury, to operate as a
         shield.

      A defendant who is released on bail before trial gives the court his
      or her assurance that he or she will stand trial and submit to
      sentencing if found guilty. Unless the defendant is prevented from
      attending the proceedings for reasons beyond his or her control,
      then the defendant is expected to be present at all stages of the
      trial. A defendant owes the court an affirmative duty to advise it
      if he or she will be absent. If a defendant has a valid reason for
      failing to appear, for example, if he or she has a medical
      emergency or is called to leave because of a family emergency,
      then the defendant can alert the court personally or through
      counsel of the problem. When, however, the defendant leaves the
      trial abruptly, without an explanation to either his lawyer or the
      court, this may be regarded as an absence without cause.

Commonwealth v. Wilson, 712 A.2d 735, 737–738 (Pa. 1998) (internal

citations omitted).

      Here, on October 30, 2018, the trial court “granted [bail] with the

[express] condition that [Appellant] remain in a self-help [drug treatment]

program until its completion.”       Trial Court Opinion, 4/10/2019, at *1

(unpaginated). There is no dispute that Appellant received proper notice of

the date of his sentencing hearing and was aware that he was required to be

present. Likewise, there is no dispute that Appellant absconded from the drug

treatment facility within three hours of his admission. Finally, there was no

evidence presented that Appellant had a valid reason for failing to appear or

that he explained to his attorney or the trial court the reason for his abrupt

departure. As such, Appellant is deemed to have knowingly and voluntarily


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waived his right to be present at sentencing. Accordingly, we conclude that

the trial court did not abuse its discretion by sentencing Appellant in absentia.

      Next, Appellant contends the trial court abused its discretion by denying

his pre-sentence motion to withdraw his guilty plea.        Appellant’s Brief at

12-17. Appellant claims that a pre-sentence request for withdrawal should be

liberally granted. Id. at 12. “Based upon []his assertion of legal innocence,

[Appellant] ‘made a colorable demonstration,’ which was ‘at least plausible,’

that permitting withdrawal of the plea would have promoted fairness and

justice.” Id. at 15. Additionally, “[p]lea [c]ounsel argued that a basis for the

withdrawal of the [g]uilty [p]lea was the fact that a judge had suppressed all

of the evidence against [Appellant’s] co[-]defendant.” Id.

      Our Supreme Court has determined:

      To be clear, when a trial court is faced with a presentence motion
      to withdraw a guilty plea, the court's discretion is not unfettered.
      As [our Supreme] Court has often explained, the term discretion
      imports the exercise of judgment, wisdom and skill so as to reach
      a dispassionate conclusion, within the framework of the law, and
      is not exercised for the purpose of giving effect to the will of the
      judge. Thus, a court's discretion in ruling on a presentence motion
      to withdraw a guilty plea must be informed by the law, which, for
      example, requires courts to grant these motions liberally and to
      make credibility determinations that are supported by the record.
      Moreover, while an appellate court should not substitute its
      judgment for that of a trial court that ruled on a presentence
      motion to withdraw a guilty plea, the appellate court is tasked with
      the important role of assessing the propriety of the trial court's
      exercise of its discretion.

Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019) (internal citations,

quotations and original brackets omitted).



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      “It is a long established principle of constitutional due process that the

decision to plead guilty must be personally and voluntarily made by the

accused.”   Commonwealth v. Hines, 437 A.2d 1180, 1182 (Pa. 1981)

(citations omitted).   Before accepting a guilty plea, a trial court must

“satisfactorily question[]” the defendant and may not solely “rely upon the

representation of [] counsel[.]” Id. at 1185. In turn, in determining whether

to allow the withdraw of a guilty plea, the trial court should also “direct[]

questions to [the defendant] to confirm [his] understanding of his plea, his

desire to withdraw the plea, and his desire regarding representation.” Id. at

1186; see also Commonwealth v. Bradley, 715 A.2d 1121, 1122-1123 (Pa.

1998) (counsel must discuss the risks and ramifications of withdrawing a

guilty plea and advise his client regarding how to proceed; however, the

defendant makes the ultimate decision).

      Here, as previously discussed, the trial court properly held the

sentencing hearing in this matter in absentia.     Because Appellant was not

physically present for the sentencing hearing, the trial court was unable to

question Appellant about withdrawing his guilty plea beforehand. Moreover,

there was no evidence that Appellant directed defense counsel to withdraw

the guilty plea prior to Appellant absconding. In fact, the following exchange

demonstrates that defense counsel moved to withdraw Appellant’s guilty plea

independently and without consultation with Appellant:

      [Defense counsel]:      Should I move to withdraw his plea before
                              sentencing? I don’t want to, but I’m

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                              trying to – I’m thinking out loud – what
                              my duties are to him even though I’m
                              pretty upset with him as you can imagine.
                              He embarrassed me and embarrassed the
                              program and everything else.

      The court:              You do what you need to do[.]

      [Defense counsel]:      I’m just thinking out loud. I guess while
                              we’re waiting, with your permission, I’d
                              like to make an oral motion to withdraw
                              his guilty plea since he hasn’t been
                              sentenced yet. The standard would be is
                              there prejudice to the client and, of
                              course, he has to assert his innocence.
                              He’s not here today. He already entered
                              the plea, but ---

      The court:              So I have no basis for the motion?

      [Defense counsel]:      Probably not under the case law, unless I
                              could on his behalf state that I would
                              assume if he was here, he would assert
                              his innocence at this point. And then
                              since it’s prior to sentencing, it would be
                              whether the Commonwealth has any
                              prejudice. I don’t see any prejudice with
                              the Commonwealth’s position.          Their
                              officers and everyone else are still
                              available in this particular case.

                              So I guess I have to make an oral motion,
                              not that I particularly want to because I’m
                              very upset with him, but make a[n] oral
                              motion to withdraw his guilty plea. And
                              there is also a secondary point, which we
                              mentioned at the time he entered his
                              plea, that a municipal court judge [,] on
                              the codefendant[’s case,] suppressed all
                              of the evidence in [that] case and that’s
                              on appeal now, I guess[.]

N.T., 11/26/2018, at 17-18.    In denying the motion to withdraw Appellant’s

guilty plea, the trial court concluded that Appellant failed to “offer a fair or


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accurate basis to attempt to assert innocence based on the fact that [counsel]

has had no contact with [Appellant] since the time of the bail motion.” Id. at

19.

      We discern no abuse of discretion in denying defense counsel’s oral,

pre-sentence motion to withdraw Appellant’s guilty plea.   There is simply no

record evidence that Appellant personally sought to withdraw his guilty plea.

He did not assert his innocence to either counsel or the trial court. Counsel

for Appellant “guess[ed]” and “assumed” that Appellant would assert his

innocence prior to sentencing. Appellant cannot rely on counsel’s assertion of

innocence on his behalf.   Moreover, regarding alleged suppression in the case

involving Appellant’s co-defendant, counsel and Appellant discussed the issue

and “mentioned it at the time [Appellant] entered his [guilty] plea” but then

he entered a guilty plea anyway.     Again, because defense counsel did not

consult with Appellant after he absconded, counsel could not have known

whether Appellant changed his mind and wished to withdraw his guilty plea

based upon suppression in his co-defendant’s case.     For all of the foregoing

reasons, we discern no abuse of discretion in denying the pre-sentence

request to withdraw Appellant’s guilty plea.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/19




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