Commonwealth v. Adams

200 A.3d 944

COMMONWEALTH of Pennsylvania, Appellee

v.Frank ADAMS, Appellant

No. 36 EAP 2017

Supreme Court of Pennsylvania.

Argued: September 26, 2018

Decided: January 23, 2019

Karl Baker, Isla Ann Fruchter, Defender Association of Philadelphia, 1441 Sansom St., Philadelphia, PA, for Appellant.

Barbara A. Zemlock, Perry Shore Weisenberger & Zemlock, 2411 N. Front St., Harrisburg, PA, Jules Epstein, Kairys, Rudovsky, Messing & Feinberg, LLP, 718 Arch St. Ste. 501, Philadelphia, PA, Peter David Goldberger, Law Office of Peter Goldberger, 50 Rittenhouse Pl., Ardmore, PA, for Pennsylvania Association of Criminal Defense Lawyers, Appellant Amicus Curiae.

Lawrence Jonathan Goode, Michael Lee Erlich, Christopher Patrick Lynett, Philadelphia District Attorney's Office, 3 S. Penn. Sq., Philadelphia, PA, for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE TODD

In this appeal by allowance, we consider whether a defendant's fugitive status during the period for filing a notice of appeal – where his attorney filed a timely notice of appeal on his behalf and he later returned after the appeal period ended, but prior to the deadline for filing an appellate brief – results in the defendant forfeiting his right to appeal. For the reasons explained below, we affirm the order of the Superior Court which found a defendant fugitive's right to appeal to be forfeited in these circumstances.

On May 20, 2012, Appellant Frank Adams and his brother, Nicky Adams, were involved in an altercation with another man outside a Philadelphia church; the altercation was eventually broken up by members of the church. The victim 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 the victim. Appellant's brother proceeded to the victim's vehicle, and, as the victim 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.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.

On appeal, a three-judge panel of the Superior Court affirmed in a unanimous, unpublished memorandum opinion authored by Judge Paula Francisco Ott. Commonwealth v. Adams , 657 EDA 2015, 2017 WL 1507702 (Pa. Super. filed Apr. 27, 2017). The court reviewed various decisions, beginning with this Court's decision in Commonwealth v. Passaro , 504 Pa. 611, 476 A.2d 346 (1984), in which we found that the "fugitive forfeiture rule" manifests, inter alia , the belief that a defendant who decides to bypass orderly criminal procedures should not be permitted to seek relief under those procedures, and is bound by the consequences of his or her decision.² The court then cited this Court's more recent recitation of the essential standard for whether, and under what circumstances, the fugitive forfeiture rule applies in Commonwealth v. Deemer , 550 Pa. 290, 705 A.2d 827 (1997), in which we explained that 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.

Finally, the Superior Court relied upon its own decision in Commonwealth v. Doty , 997 A.2d 1184 (Pa. Super. 2010), in which the court summarized this Court's prior case law, and offered that, "[o]n direct appeal, therefore, a defendant's status during the 30-day appeal period controls whether an appellate court will hear his appeal." Id. at 1188. The Superior Court emphasized the Doty court's conclusion that, although defendant's counsel filed a notice of appeal while the defendant remained a fugitive during the 30-day appeal period, it was of no moment, and counsel could not preserve the defendant's appellate rights because he failed to return to the court's jurisdiction prior to the expiration of the appeal period. Id. at 1189.

Thus, applying both our Court's prior pronouncements, and Superior Court precedent in virtually identical circumstances to the instant case, the court found Appellant's fugitivity during the period for filing a notice of appeal, regardless of his attorney's filing of a notice of appeal on his behalf or his subsequent return to custody, resulted in a forfeiture of his right to appeal. We granted allocatur to address this conclusion.³

Before us, Appellant argues that, under Pennsylvania law, there is no automatic dismissal rule for litigants who are fugitives during part of the appellate process, but who return without disruption of the course of the appeal. Appellant offers essentially two arguments. First, Appellant maintains that his fugitivity did not forfeit his right to appeal because, pursuant to Deemer , a returned fugitive is entitled to take the criminal justice system as he finds it. According to Appellant, no extraordinary measures were required to hear his appeal, because, although he was absent during the 30-day appeal period, his counsel had timely filed a notice of appeal. Indeed, "[t]he appeal continued on the normal track toward decision with no interruption." Appellant's Brief at 14. Appellant criticizes the Superior Court in Doty for interpreting Deemer as requiring forfeiture notwithstanding counsel's actions, and for focusing solely on the fugitive's status during the 30-day appeal period. Appellant avers that Doty 's erroneous holding is more consistent with the now-abrogated per se forfeiture holding in Commonwealth v. Jones , 530 Pa. 536, 610 A.2d 439 (1992), than this Court's more recent decision in Deemer . Appellant further emphasizes that the fugitive forfeiture rule aims to prevent disruption to the appellate process and ensure that the appellate court's judgment can be effectively enforced, and contends both goals are met here, without sacrificing his appellate rights. In so arguing, Appellant stresses the harshness of his sentence, his forfeiture of his constitutional right to be present at his trial, to consult with counsel, and to confront witnesses, the negative impact upon the jury of his absence, the flight-as-consciousness-of-guilt instruction, and the forfeiture of bail monies, and urges that fundamental fairness does not warrant the additional forfeiture of his appellate rights.

In his second argument, Appellant asserts that, unlike the United States Constitution, the Pennsylvania Constitution includes the fundamental guarantee to a criminal defendant of the right to appeal his conviction. Pa. Const. art. V, § 9. According to Appellant, only where a defendant makes a knowing, voluntary, and intelligent relinquishment of his fundamental right to appeal should such a right be denied. Appellant avers that he made no such relinquishment of his right to appeal, should not be deprived of it by means of "an excessive application of forfeiture principles," and that the fugitive forfeiture rule should have only narrow application. Appellant's Brief at 22-23. Thus, Appellant submits that the law in this area should be aligned with the fundamental right to appeal and that no appeal should be dismissed where the defendant has returned to custody in time for the appellate process to proceed. Appellant contends, pointing to out-of-state cases, that any other application of the rule is punitive and...