Commonwealth v. Wells

1

COMMONWEALTH OF PENNSYLVANIA v. CARL WELLS Appellant

No. 1174 EDA 2023

No. J-S04004-24

Superior Court of Pennsylvania

March 27, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered May 3, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006857-2017

Benjamin D. Kohler, Esq.

BEFORE: BOWES, J., STABILE, J., and LANE, J.

MEMORANDUM

BOWES J.:

Carl Wells, through his counsel, has filed a notice of appeal from his judgment of sentence imposed upon his conviction in absentia for aggravated assault. Since Appellant forfeited his appellate rights by remaining a fugitive throughout the thirty-day appeal period, we quash.

The pertinent history of this case is as follows. On July 25 2017, Appellant stabbed his brother and fled the scene. He was arrested, charged with aggravated assault, released on bail, and scheduled for a jury trial which ultimately began on December 6, 2022.^[1] On the second day of trial, the court opted to break for lunch between the closing arguments and the jury charge. Appellant did not return for the afternoon session, but informed his counsel that his wife was having health concerns. The court instructed the jury to return the following day and ordered the Commonwealth to perform an absentia check of jails and morgues.

Appellant did not appear the following morning. Counsel explained that he had contacted her that morning, indicated that he was at the hospital with his wife and would not leave until she was out of surgery, and asked to delay the resumption of trial until the afternoon. At counsel's request, Appellant texted photographs "purporting to show [him] with a mask on and his wife with . . . what purported to be some sort of a hospital wrist bracelet," but Appellant supplied no indication as to which medical facility was involved. See N.T. Trial, 12/8/22, at 48. Nor did the police detective's inquiries of local hospitals concerning Appellant and his wife reveal his location. Deeming Appellant's absence willful and his communications "gam[ing] the [c]ourt," the trial court declined to delay the proceedings further and waived Appellant's presence for the jury instructions.^[2] Id. at 71. It issued a bench warrant while the jury deliberated, but Appellant was not found before the jury returned a guilty verdict. The trial court revoked Appellant's bail and ordered a presentence investigation.^[3]

Appellant's sentencing hearing took place on May 3, 2023, approximately five months later, after being continued due to Appellant's failure to appear. Appellant's wife and assault-victim brother appeared, but Appellant did not. A detective indicated that a check of the police database confirmed that Appellant was not in custody, calls to the medical examiner's office and an extensive list of hospitals also yielded negative results, and the occupants of his purported address indicated that he did not reside there. See N.T. Sentencing, 5/3/23, at 6. Since Appellant's whereabouts remained unknown and all indications were that it was his voluntary choice not to appear, the court proceeded with sentencing.

Appellant's wife offered testimony on his behalf. During cross- examination and questioning by the court, she stated that Appellant was aware of the sentencing hearing, knew she planned to attend, and was advised by her and his pastor to turn himself in, but did not because he was afraid of going to prison. Id. at 24-26. In communicating with her through a third party, Appellant never revealed his location to her because he did not want to implicate her in obstruction of justice. Id. at 23. Ultimately, the court sentenced Appellant in absentia to the statutory maximum of ten to twenty years of imprisonment.

Counsel filed a timely notice of appeal on Appellant's behalf. The trial court did not order the filing of a Pa.R.A.P. 1925(b) statement and none was filed. The trial court supplied a Pa.R.A.P. 1925(a) opinion observing that Appellant's whereabouts remained unknown and suggesting that we quash the appeal due to his forfeiture of his appellate rights. See Trial Court Opinion, 8/25/23, at 4-6. The brief filed by Appellant's counsel challenges the trial court's decision to conduct the trial in absentia but does not address the viability of the appeal in light of Appellant's fugitive status. See generally Appellant's brief. The Commonwealth agrees with the trial court that this appeal should be quashed based upon Appellant remaining a fugitive. See Commonwealth's brief at 9.

Our Supreme Court has observed that the Pennsylvania Constitution, "unlike the federal Constitution, guarantees the right to appeal." Commonwealth v. Adams, 200 A.3d 944, 953 (Pa. 2019). Specifically, Article V, § 9, "Right of Appeal," provides as follows:

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.

Pa. Const. Art. V, § 9. Nonetheless, the right to appeal is not absolute. Our Supreme Court explained:

While the right to appeal is unquestionably a significant right, nevertheless, our Constitution only guarantees our citizens be afforded the opportunity to exercise such right: The right to appeal is conditioned upon compliance with the procedures established by this 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

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