Commonwealth v. Adams

1

COMMONWEALTH OF PENNSYLVANIA v. FRANK ADAMS Appellant

No. 1599 EDA 2022

J-S16014-23

Superior Court of Pennsylvania

June 9, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered June 9, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006821-2012

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM

DUBOW J.

Frank Adams ("Appellant") appeals from the June 9, 2022 order entered in the Philadelphia Court of Common Pleas that dismissed his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. After careful review, we affirm.

Our Supreme Court set forth the following factual and procedural history, which is relevant to our analysis:

On May 20, 2012, Appellant Frank Adams and his brother, Nicky Adams, were involved in an altercation with another man [,Mark Kelly, ("Victim")] outside a Philadelphia church; the altercation was eventually broken up by members of the church. [V]ictim went to his car, and was about to leave the scene for home, when Appellant went to his own vehicle, pulled out a tire iron, handed the weapon to his brother, and directed him to strike [V]ictim. Appellant's brother proceeded to [V]ictim's vehicle, and, as [V]ictim leaned out the window to protect his infant nephew who was inside the automobile, Appellant's brother swung the tire iron like a bat against the victim's head, causing a laceration of his scalp. Appellant was arrested and charged with, inter alia aggravated assault, conspiracy, and recklessly endangering another person.

Appellant was released on bail, but he and his brother failed to appear for his January 9, 2013 trial date in the Philadelphia County Court of Common Pleas. Over nine months later, after having fled to California, Appellant and his brother were brought before the trial judge, who held them in contempt, sentenced them to two weeks imprisonment for that offense, and stressed to them the importance of their obligation to appear for court dates. Appellant and his brother were again released on bail. A trial date was set. This date was critical, as the principal witnesses against Appellant and his brother were to move to Florida within days of the trial. The brothers appeared for court that morning but, thereafter, left without authorization. While Appellant claimed that his brother had experienced chest pains, there was no corroboration of this exigency, and Appellant ignored his attorney's instructions to return to court. The trial judge deemed Appellant to be willfully absent.

The trial proceeded in absentia, and, after four days of hearing, Appellant was convicted of various crimes[, including Aggravated Assault, Conspiracy to Commit Aggravated Assault, Simple Assault, Conspiracy to Commit Simple Assault, Recklessly Endangering Another Person.^[1] Thereafter, when Appellant failed to appear for his sentencing hearing, he was sentenced, in absentia, to a term of 10 to 20 years['] incarceration. Appellant remained a fugitive throughout the time for seeking appellate review; however, on March 16, 2016, his attorney filed a notice of appeal within the appeal period on Appellant's behalf, and the trial court directed him to file a Pa.R.A.P. 1925(b) statement. Appellant's attorney raised several assertions of error, including a challenge to the legality of the sentence. The trial court rejected the claims, reasoning that Appellant's fugitive status caused him to forfeit all issues on appeal. Given that Appellant failed to appear for the entirety of his trial as well as his sentencing hearing, and given that he was a fugitive during the entire 30-day appeal period, the trial court found it of no consequence that Appellant's counsel had filed a notice of appeal during the appeal period.

After the 30-day appeal period had expired, but prior to the deadline for the filing of Appellant's brief, Appellant was rearrested and returned to custody. Appellant filed an appellate brief, arguing, inter alia, that his fugitive status should not cause him to forfeit his right to appeal. Appellant stressed that his absence had not frustrated the appellate process, and he reasserted his substantive claims, including his challenge to the legality of his sentence.

Commonwealth v. Adams, 200 A.3d 944, 946-47 (Pa. 2019).

This Court affirmed the trial court's decision that Appellant's fugitive status during the 30-day appeal period caused him to forfeit his right to appeal. Commonwealth v. Adams, No. 657 EDA 2015, 2017 WL 1507702 (Pa. Super. 2017) (non-precedential decision).

The Pennsylvania Supreme Court affirmed this Court's decision, holding that Appellant forfeited appellate review, regardless of whether his counsel filed a timely notice of appeal and/or brief in his absence, when he surrendered after the 30-day appeal period had passed. Our High Court explained:

We reiterate that a defendant's fugitive status does not per se disqualify him or her from appellate review; however, when a defendant absconds, and then returns to the court system, he takes the criminal justice system as he finds it. Under this straight-forward approach, the focus is on the fugitive's conduct, and the timing of his return to the criminal justice system. Moreover, counsel's actions to preserve the fugitive's rights are ineffectual. Thus, for the reasons offered above, 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.

Adams, 200 A.3d at 955 (emphasis added).

On November 20, 2019, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel, who proceeded to file an amended PCRA petition and a supplemental PCRA petition raising 1) multiple claims of ineffective assistance of trial counsel and 2) a claim that the trial court imposed an illegal sentence in violation of Section 906 of the Pennsylvania Crimes Code when the court sentenced him to consecutive terms for two inchoate offenses that involve the same criminal elements. Amended PCRA Pet., 3/17/20, at 13-21. Supplemental PCRA Pet., 8/18/20, at 1-4.

The PCRA court scheduled a hearing to hear evidence on two issues raised in Appellant's PCRA petitions, including whether trial counsel was ineffective for 1) advising Appellant not to accept the Commonwealth's guilty plea offer and 2) failing to call a witness, Mr. Valentino Burt, who was available and willing to testify.^[2] Order, 6/28/21.

The PCRA court held a hearing on September 24, 2021, to address Appellant's above-mentioned claims of ineffective assistance of counsel. The court heard testimony from Appellant; Mr. Burt, Appellant's proposed witness; and John Konchak, Esq., Appellant's trial counsel.

In sum, Appellant testified that Attorney Konchak told him that the District Attorney's office was offering him a plea deal of "a one to two" and explained that "basically your sentence will be two years but you will be eligible for parole after one." N.T. Hearing, 9/24/21, at 8. Appellant explained that he wanted to take the plea deal, but Attorney Konchak advised him "No" and explained that they could "beat the case" or even if Appellant lost the case, he was only facing a term of probation, at most. Id.

Appellant further testified that at least 50 people witnessed the fight at the church, including Mr. Burt. Id. at 10-12, 39. He also testified that he gave Attorney Konchak contact information for various witnesses, as well as Mr. Burt's name, address, and phone number. Id. at 39

Mr. Burt testified that he witnessed the fight between Appellant and Victim. Id. at 14. Mr. Burt explained that Victim initiated the fight by punching Appellant in the face, and the fight escalated to both men pulling tools out of the trunks of their vehicles. Id. at 15. Mr. Burt testified that he witnessed Victim attempt to hit Appellant in the head with a sledgehammer. Id. at 16. Mr. Burt stated that he then observed Appellant's brother grab a bumper jack and throw it at the cab of Victim's truck, which ricocheted off the truck and hit Victim in the head. Id. at 17. Mr. Burt explained that everyone got in their vehicles and left the scene; Appellant went to Mr. Burt's house. Id. at 21. Mr. Burt stated that he knew Appellant for 15 years, attended his "arrest" hearing, and was willing to testify at this trial. Id. at 22-23. However, Mr. Burt testified, Mr. Burt left for California a month after the incident and he and Appellant did not have contact information for each other. Id. at 24-27.

Attorney Konchak testified that he advised Appellant not to take the one-to-two-year plea offer from the Commonwealth because Appellant "had an eminently defensible case . . . and [there] was a very good possibility that this would turn into mutual affray." Id. at 64. Attorney Konchak explained that, at the time, he believed that if Appellant was convicted it would be of a simple assault charge which carried a one- to two-year sentence. Id. at 65. Attorney Konchak testified that based on the forum and the facts of the case the court would not sentence Appellant to a term of one to two years' incarceration even if he was convicted. Id.

Attorney Konchak testified that he asked Appellant to identify and provide contact information from possible witnesses. Id. at 71. Attorney Konchak testified that he remembered Mr. Burt's name appearing in the police report, which identified him as the driver of Appellant's brother's vehicle after the incident. Id. at 74. Attorney Konchak stated that Appellant never gave him contact information for Mr. Burt,...