Com. v. Burrell, M. ( 2017 )

J-S30026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MESSIAH BURRELL :
:
Appellant : No. 1483 MDA 2016
Appeal from the Judgment of Sentence June 8, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000598-2015
BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.
JUDGMENT ORDER BY RANSOM, J.: FILED JULY 26, 2017
Appellant, Messiah Burrell, appeals from the judgment of sentence of
fifteen to thirty years of incarceration following a jury trial resulting in his
conviction for delivery of a controlled substance, possession with intent to
deliver, possession of a controlled substance, and possession of drug
paraphernalia.1 We quash the appeal.
On February 13, 2015, after completing an investigation regarding the
sale of heroin, a criminal complaint was filed against Appellant charging him
with the above-referenced offenses. In November 2015, Appellant was
released on bail and instructed to appear for jury selection in January of
2016. Appellant was hospitalized and failed to appear for jury selection and
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1
35 P.S. §§780-113(a)(30), 780-113 (a)(16), 780-113 (a)(32),
respectively.
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was instructed, to return in February. In February 2016, Appellant appeared
as instructed and a jury was selected. However, on March 7, 2016,
Appellant failed to appear for trial; a bench warrant was issued; and the trial
proceeded in his absence. Following the trial, Appellant was found guilty on
all counts. On June 8, 2016, Appellant failed to appear for sentencing. On
August 5, 2016, Appellant was arrested in Medford, Oregon and extradited
to Lycoming County.
Also relevant to the procedural background of the case, Appellant’s
counsel filed post-sentence motions on Appellant’s behalf, which were
denied. Thereafter, Appellant’s counsel filed a notice of appeal and a court-
ordered statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
On appeal, Appellant purports to raise the following issues for review:
I. Did the lower court err when it denied the
Appellant’s motion for a new trial after the
Commonwealth violated Pa.R.Crim.P. 602 when it
failed to prove by a preponderance of the evidence
that the Appellant’s absence at trial was without
good cause?
II. Did the lower court err when it denied the
Appellant’s motion for a new trial when the
Commonwealth failed to prove by a preponderance
of the evidence that Appellant’s absence at trial was
without good cause, thus his trial was held in
violation of his due process rights under Article I,
Section 8 of the Pennsylvania Constitution and the
Sixth Amendment of the United States Constitution?
III. Did the lower court err when it refused to rule on the
Appellant’s post-sentence motions challenging his
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sentence by holding that the Appellant forfeited his
right to be heard by being a fugitive from the law?
IV. Did the lower court abuse its discretion when it
sentence Appellant to a manifestly excessive
sentence of fifteen years to thirty years in a state
correctional facility for the delivery of a [sic] less
than 1 gram of heroin.
V. Did the lower court violate the Appellant’s Eighth
[A]mendment right against cruel and unusual
punishment when it sentence the Appellant to the
statutory maximum available by law of fifteen years
to thirty years in a state correctional facility for the
delivery of a less than 1 gram of heroin?
Appellant’s Brief at 15.
A defendant has an absolute right to be present at his trial. However,
it is a right that may be forfeited by a defendant’s actions. Commonwealth
v. Wilson, 712 A.2d 735 (Pa. 1998); Commonwealth v. Sullens, 619
A.2d 1349 (Pa. 1992). This Court has held that a trial court may, in its
discretion, conduct a trial in absentia when the defendant absconds without
cause after the trial commences. Wilson, 712 A.2d at 737; see also
Pa.R.Crim.P.602.
Following jury selection, Appellant fled the Commonwealth. In March
2016, he failed to appear for trial, and a warrant was issued for his arrest.
He remained a fugitive until August 2016, when he was arrested in Oregon.
Thus, the court properly conducted a trial and sentenced Appellant in
absentia.
Regarding a fugitive’s appellate rights, our Supreme Court has stated:
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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.
Commonwealth v. Doty, 997 A.2d 1184, 1187 (Pa. Super. 2010) (quoting
Commonwealth v. Deemer, 705 A.2d 827, 829 (Pa. 1997)).
Furthermore,
[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. 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.
Doty, 997 A.2d at 1187 (internal quotations and citations omitted).
Applying this precedent, we conclude that the post-sentence motions
and notice of appeal, filed on behalf of Appellant while he remained a
fugitive, are legal nullities. Id. Further, Appellant did not return to the
court’s jurisdiction until almost two months after sentencing, long after the
thirty-day appeal period had expired. Pa.R.A.P. 903. Thus, Appellant has
forfeited his right to appellate review of all claims raised in the instant
appeal. Doty, 997 A.2d at 1187.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2017
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