Com. v. Flores, R. ( 2023 )

J-S06023-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REYNALDO FLORES :
:
Appellant : No. 1364 MDA 2022
Appeal from the Judgment of Sentence Entered May 24, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000723-2020
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED: APRIL 13, 2023
Appellant Reynaldo Flores appeals nunc pro tunc from the judgment of
sentence entered after a jury found him guilty of possession of controlled
substance by an inmate (possession by an inmate), possession of controlled
substance (simple possession), and possession of drug paraphernalia (drug
paraphernalia).1 Appellant challenges the trial court’s admission of the crime
lab’s test results at trial and the sufficiency of the evidence. Appellant also
argues that the trial court erred by sentencing Appellant in absentia. We
affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 5123(a.2), 35 P.S. § 780-113(a)(16), and (32), respectively.
J-S06023-23
The trial court summarized the factual and procedural history of this
matter as follows:
At trial, the Commonwealth presented evidence that [Appellant]
had possession of a contraband BIC lighter, Suboxone and drug
paraphernalia which was located during a strip and cell search
while [Appellant] was housed as an inmate at SCI Mahanoy.
Correctional Officer Roberto Sosa (“Sosa”) testified that on July
29, 2019 [Appellant] was housed in the restrictive housing unit
(“RHU”) at SCI Mahanoy and was subjected to a strip search based
on information that [Appellant] was in possession of contraband.
The search was videotaped. The search occurred in the Level 5
strip room. [Appellant] was instructed to take off one article of
clothing at a time. When [Appellant] took off his pants, an object
fell onto the floor and it was determined that [Appellant] had a
BIC mini lighter which was restricted and considered contraband
for any inmate housed in the RHU. Sosa placed [Appellant’s]
pants, which contained one back pocket, on a chair. Another
officer was present and searched [Appellant’s] pants pocket,
which contained a black fingertip balloon. [Appellant] denied that
the balloon was his. Sosa testified that the correctional officers
routinely use black rubber gloves while working with the inmates,
which are then disposed of, and the inmates take the gloves out
of the garbage and either sell or redistribute them to other
inmates.
Lieutenant Steven Taylor (“Taylor”) testified that he was involved
in the strip search of [Appellant] on July 29, 2019. Taylor
searched [Appellant’s] shirt and then his pants, in which Taylor
found a fingertip to a black glove that was formed into a ball shape
in the back pocket. Taylor contacted the security lieutenant and
together they opened the black fingertip which contained orange
strips later confirmed to be Suboxone.
Corrections Officer Bruce Mason (“Mason”) testified that on July
29, 2019 he was directed to go to [Appellant’s] cell and remove
[Appellant’s cellmate] and search the cell. Mason searched the
cell along with another officer with [Appellant] present outside the
cell. Mason found a small piece of cellophane containing seven
small pieces of an orange color in the back of the cell in a small
metal desk attached to the wall. [Appellant] admitted that the
suspected drugs were his.
-2-
J-S06023-23
Lieutenant Jodi Cobian (“Cobian”) testified that she was involved
in an investigation on July 29, 2019 concerning [Appellant]. She
was approached by Taylor who had information that [Appellant]
had brought contraband into the RHU and wanted to be housed in
a cell with a certain [cellmate]. While [Appellant’s] cell was
searched, she spoke to [Appellant’s] cellmate. After searching the
cell, Mason brought her a Styrofoam ball which contained little
orange pieces individually wrapped in Styrofoam. Testing later
confirmed it to be Suboxone. After strip searching [Appellant],
Taylor brought her a small blue BIC lighter and a tip of [a] black
glove which contained Suboxone strips. The evidence was
photographed and placed into an evidence bag which was placed
into an evidence locker, which is locked and kept within a locked
office. The evidence bag contains identification information on the
outside including the name of the prison, case number, the
suspected inmate’s name and number; date and time of recovery,
who recovered it, and a description of the items, as well as a chain
of custody. Cobian admitted that Suboxone is permitted in the
prison if the inmate has a prescription, but that it is a pill which is
administered in the medical unit, not a strip. She notified
Pennsylvania State Police of the incident the next day via email.
Trooper Andrew Letcavage (“Letcavage”) testified that he is a
Pennsylvania State Police (“PSP”) officer and the affiant in this
case. When PSP receives an extraordinary incident report (“EOR”)
from the prison, they pick up the evidence from the prison,
photograph it; package it, place it in a secure room and then it is
signed out and transported to a laboratory. Letcavage did not
become a member of the criminal investigation unit until February
21, 2020, so a different officer was initially working the case until
Letcavage filed the charges against [Appellant], which resulted in
a five[-]month delay. There was a further two[-]month delay in
time between the incident and when the PSP officer picked up the
evidence at the prison. Letcavage was not the officer who
transported the evidence to the Bethlehem Regional Police Crime
Laboratory (“[crime l]ab”), which did the testing.
Brendan McCann (“McCann”) is a forensic scientist with the [crime
l]ab, specializing in drug identification. He was admitted as an
expert witness in the field of drug identification without objection.
McCann was assigned to test the mixture of cellophane wrappings
and orange films and fragments contained in the evidence
envelope concerning this investigation. He conducted two tests,
a presumptive and a confirmatory, identified the substances as
buprenorphine, common name Suboxone, a Schedule 3 controlled
-3-
J-S06023-23
substance. The total net weight was 2.13 grams. He repackaged
the evidence in bags within a secured envelope and wrote a report
dated October 18, 2019. His report indicated that the package
had been transported to the [crime l]ab by Trooper Daniel R.
Phillips (“Phillips”). McCann testified that the [crime l]ab received
the evidence [on] September [16,] 2019, and that it was normal
for the actual testing to take about one month to occur after
receipt of the evidence.
After the Commonwealth rested, the Commonwealth moved for
the admission of all of its exhibits, including Commonwealth
Exhibit 2, the property records, and Exhibit 5, the lab report, to
which Defendant objected. Both objections were based on the
lack of chain of custody testimony by Phillips. The objections were
overruled.
* * *
[Appellant testified] that on July 29, 2019, he was first strip
searched in his cell which was videotaped but the video was
missing and had not been produced by the Commonwealth
regarding that preliminary search. Then he walked through a
body scanner and was then taken to the strip room. [Appellant]
admitted that he had a lighter which fell out of his back pants
pocket, but denied that he had a black balloon in his pants, and
also denied that the drugs in his cell were his and that he never
said that [they] were his. On cross examination, [Appellant] was
at first unable to explain how the lighter was not discovered during
the first strip search in his cell. Then he testified that they “felt
it” during the strip search but allowed him to keep it in his pocket.
[On April 6, 2021, t]he jury found [Appellant] guilty of all three
charges.
Trial Ct. Op., 8/31/21, at 2-6.
The Honorable Cyrus P. Dolbin deferred sentencing to May 24, 2021 for
the preparation of a pre-sentence investigation (PSI) report. N.T. Trial,
4/6/21, at 153-54; Order, 4/6/21. On May 24, 2021, Appellant failed to
appear for the sentencing hearing. The Commonwealth presented testimony
from Schuylkill County Adult Probation Officer Sara Dudley. Officer Dudley
-4-
J-S06023-23
testified that while preparing Appellant’s PSI report, she attempted to contact
Appellant, and she discovered that Appellant was currently incarcerated in
Osceola County, Florida. N.T. Sentencing Hr’g, 5/24/21, at 3-4. Officer
Dudley further explained that Appellant had been detained on a bench warrant
for absconding from supervision while he was on probation for an unrelated
case in Berks County. Id. at 4. She also testified that there were no pending
extradition proceedings involving Appellant at that time. Id. Appellant’s trial
counsel objected to the trial court proceeding with sentencing Appellant in
absentia. Id. The trial court overruled the objection and imposed an
aggregate sentence of two to four years’ imprisonment consecutive to any
other sentence Appellant was currently serving. Appellant did not file any
post-sentence motions.
Appellant filed a timely notice of appeal nunc pro tunc2 and a timely
court-ordered Pa.R.A.P. 1925(b) statement. The Honorable Christopher
Hobbs issued a Rule 1925(a) opinion adopting the August 31, 2021 opinion
written by the now-retired Judge Dolbin. See Trial Ct. Op, 10/27/22, at 1-2.
____________________________________________
2 Appellant previously filed a notice of appeal on June 29, 2021. This Court
quashed that appeal as untimely on April 5, 2022. Commonwealth v.
Flores, 881 MDA 2021, 2022 WL 1016659 (Pa. Super. filed April 5, 2022)
(unpublished mem.). Appellant then filed a timely pro se PCRA petition on
May 5, 2022, and the PCRA court appointed PCRA counsel to represent
Appellant. Thereafter, PCRA counsel filed an amended PCRA petition on June
23, 2022. On September 15, 2022, the PCRA court granted Appellant’s
petition and reinstated Appellant’s appellate rights nunc pro tunc.
-5-
J-S06023-23
Appellant raises the following issues for our review, which we reorder as
follows:
1. Did the trial court err in [admitting] the lab results into
evidence?
2. Did the Commonwealth fail to sufficiently establish the
elements of the crime beyond a reasonable doubt?
3. Did the [trial] court err in sentencing [Appellant] in absentia?
Appellant’s Brief at 5 (some formatting altered).
Admissibility of Lab Results
In his first issue, Appellant argues that the trial court erred in admitting
evidence of the crime lab’s test results because there was a gap in the chain
of custody for the drugs. Id. at 11-13. In support, Appellant notes that the
Commonwealth did not present testimony from Trooper Phillips, who
transported the drugs to the crime lab from the State Police barracks. Id. at
12. Appellant claims that Trooper Phillips’ testimony was necessary to
establish that there was no break in the chain of custody between when the
drugs were collected on July 29, 2019, and when they were delivered to the
crime lab on September 16, 2019. Id. Therefore, Appellant contends that
because there was a gap in the chain of custody for the drugs, the crime lab’s
test results were inadmissible.
In reviewing Appellant’s claim, our standard of review is as follows:
Questions concerning the admissibility of evidence are within the
sound discretion of the trial court and we will not reverse a trial
court’s decision concerning admissibility of evidence absent an
abuse of the trial court’s discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding or
-6-
J-S06023-23
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record. If in reaching a
conclusion the trial court overrides or misapplies the law,
discretion is then abused and it is the duty of the appellate court
to correct the error.
Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation
omitted).
This Court has explained:
There is no requirement that the Commonwealth establish the
sanctity of its exhibits beyond all moral certainty. It is sufficient
that the evidence, direct and circumstantial, establish a
reasonable inference that the identity and condition of the exhibits
remain unimpaired until they were surrendered to the court. . . .
Moreover, [t]here is no rule requiring the prosecution to produce
as witnesses all persons who were in a position to come into
contact with the article sought to be introduced in evidence.
Physical evidence may be properly admitted despite gaps in
testimony regarding custody. Pointedly, this Court has upheld the
chain of custody based on less testimony. Lastly, [the defendant]
incorrectly argues this issue as though it were related to the
admissibility of the evidence. Gaps in the chain of custody, the
underlying issue of [the defendant’s] argument, go to the weight
of the evidence and not its admissibility.
Commonwealth v. Feliciano, 67 A.3d 19, 29 (Pa. Super. 2013) (en banc)
(citations and quotation marks omitted); see also Commonwealth v.
Witmayer, 144 A.3d 939, 950 (Pa. Super. 2016) (the same); Pa.R.E. 901(a)
(stating that “[t]o satisfy the requirement of authenticating or identifying an
item of evidence, the proponent must produce evidence sufficient to support
a finding that the item is what the proponent claims it is”).
-7-
J-S06023-23
In Feliciano, the defendant argued “that the trial court erred in
admitting into evidence two envelopes that contained the packets of cocaine
purchased from [the defendant] because there were gaps in the chain of
custody.” Feliciano, 67 A.3d at 28. On appeal, the Feliciano Court
concluded that although the Commonwealth did not present any evidence as
to how the envelopes were delivered to the crime lab, the “chain of custody
was more than sufficient[]” because there was testimony from the officer who
placed the drugs into the sealed envelopes and the forensic scientist who
opened the envelopes and tested their contents. Id. at 28-29.
Here, at trial, Appellant objected to the admission of lab report because
of there was a gap of in the chain of custody for the drugs. See N.T. Trial at
104-05.
In addressing Appellant’s claim on appeal, the trial court explained:
The law is clear that physical evidence may be properly admitted
despite gaps in testimony regarding its custody. Gaps in the chain
of custody go to the weight to be given to the testimony, not to
its admissibility. There was no evidence supporting an argument
that the envelopes containing the alleged drugs had been
tampered with; the drugs, lighter and glove tip were identified by
several corrections officers as having been the same drugs they
found on [Appellant’s] person and in his cell.
. . . . Every hypothetical possibility of tampering need not
be eliminated; it is sufficient that the evidence, direct or
circumstantial, establishes a reasonable inference that the
identity and condition of the exhibit remained unimpaired
until it was surrendered to the trial court. . . .
[Commonwealth] v. Hudson, 414 A.2d 1381, 1387 ([Pa.]
1980). We believe that the exhibits were properly admitted.
-8-
J-S06023-23
Trial Ct. Op., 8/31/21, at 6-7 (some citations omitted and some formatting
altered).
Initially, we note that although Appellant claims that the evidence was
inadmissible due to a gap in the chain of custody, that issue goes to the weight
of the evidence, rather than its admissibility. See Feliciano, 67 A.3d at 28-
29; Witmayer, 144 A.3d at 950. Accordingly, as more fully discussed below;
to the extent that Appellant asserts a weight claim challenging the chain of
custody for the drugs, he has waived this issue by failing to raise it before the
trial court and no relief is due. See Pa.R.Crim.P. 607(A); see also Pa.R.A.P.
302(a).
In any event, on this record, we discern no abuse of discretion by the
trial court in admitting the evidence. See LeClair, 236 A.3d at 78. Here, the
Commonwealth presented sufficient evidence establishing the chain of
custody for the drugs and their authenticity. See Hudson, 414 A.2d at 1387;
Feliciano, 67 A.3d at 28-29; see also Pa.R.E. 901(a). As noted previously,
the record reflects that Lieutenant Taylor, Officer Sosa, and Officer Mason
recovered the orange strips from Appellant’s person and from his cell on July
29, 2019. See N.T. Trial at 60-62, 73-76, 81-83. Lieutenant Taylor and
Officer Mason then gave the orange strips to Lieutenant Cobian, who placed
them in an evidence bag, sealed and dated the bag, and secured the bag in
an evidence locker. See id. at 88-90. Trooper Letcavage testified that the
staff at SCI Mahanoy gave the evidence bag to a PSP trooper, who placed it
in a PSP envelope, and then deposited the evidence inside a locked evidence
-9-
J-S06023-23
room at the PSP Frackville Barracks. See id. at 24-30. In his lab report,
McCann indicated that PSP Trooper Phillips submitted the evidence to the
crime lab on September 16, 2019. See id. at 56. McCann testified that the
sealed evidence envelope contained “crumpled orange films” which he tested
and then resealed in the evidence envelope. See id. at 50. Under these
circumstances, Appellant is not entitled to relief on this claim. See Feliciano,
67 A.3d at 29 (explaining that an exhibit is admissible where there is sufficient
evidence to “establish a reasonable inference that the identity and condition
of the exhibits remain unimpaired until they” were brought to court (citation
omitted)).
Sufficiency of the Evidence
In his second claim, Appellant challenges the sufficiency of the evidence
supporting his convictions for possession by an inmate, simple possession,
and drug paraphernalia.3 Appellant’s Brief at 14-16. Specifically, Appellant
claims that there was no admissible evidence establishing that the items he
____________________________________________
3 It is well settled that a vague challenge to the sufficiency of the evidence
may result in waiver. See Commonwealth v. Roche, 153 A.3d 1063, 1072
(Pa. Super. 2017). This is particularly important where the defendant was
convicted of multiple crimes, which each contain multiple elements that the
Commonwealth must prove beyond a reasonable doubt. See
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013). Here,
Appellant raised the following sufficiency claim: “[t]he Commonwealth failed
to prove Counts 1, 2[,] and 3 because of the break in the chain of evidence.”
Rule 1925(b) Statement, 10/21/22. The trial court addressed Appellant’s
sufficiency claim in its Rule 1925(a) opinion, and the case against Appellant
was relatively straightforward. Therefore, we decline to find waiver. See
Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (per curiam).
- 10 -
J-S06023-23
possessed were a controlled substance. In support, Appellant reiterates his
claim that the crime lab’s test results were inadmissible because of a gap in
the chain of custody for the drugs. Id. at 15. Appellant concludes that
“[w]ithout the [crime] lab results, the Commonwealth could not sufficiently
prove any of the counts against [Appellant] beyond a reasonable doubt.” Id.
at 15-16 (citing, inter alia, Witmayer, 144 A.3d at 950).
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
The standard we apply when reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced
is free to believe all, part[,] or none of the evidence.
Furthermore, in evaluating the sufficiency of the evidence, we do
not review a diminished record. Rather, the law is clear that we
are required to consider all evidence that was actually received,
without consideration as to the admissibility of that evidence or
whether the trial court’s evidentiary rulings are correct.
- 11 -
J-S06023-23
Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (citations
omitted and formatting altered)).
Here, as noted previously, Appellant’s sufficiency claim is based on his
assertion that the crime lab’s test results are inadmissible. However, in
reviewing a sufficiency claim, we must consider all of the evidence presented
at trial, “without consideration as to the admissibility of that evidence or
whether the trial court’s evidentiary rulings are correct.” See id. (citation
omitted). Therefore, Appellant is not entitled to relief on his claim that if this
Court excludes certain evidence from our review, the remaining evidence is
insufficient to sustain Appellant’s convictions.4,5 See id.Sentencing In Absentia
Lastly, Appellant argues that the trial court erred by sentencing him in
absentia. Appellant’s Brief at 13-14. Appellant contends that the trial court
violated his constitutional right to be present during his sentencing hearing.
____________________________________________
4 In any event, we agree with the trial court that there was sufficient evidence
to establish that Appellant possessed Suboxone, a Schedule 3 controlled
substance, and drug paraphernalia. See N.T. Trial at 50-57, 60-62, 73-76,
81-83. Therefore, Appellant’s sufficiency claim is meritless.
5 As previously stated, gaps in the chain of custody go to the weight of the
evidence. See Feliciano, 67 A.3d at 29; Witmayer, 144 A.3d at 950.
Challenges to the weight of the evidence must be preserved either orally prior
to sentencing, in a written motion before sentencing, or in a written post-
sentence motion. See Pa.R.Crim.P. 607(A). Therefore, to the extent that
Appellant is raising a weight claim based on a gap in the chain of custody for
the drugs, he has waived the issue by failing to raise it before the trial court.
See id.; see also Pa.R.A.P. 302(a).
- 12 -
J-S06023-23
Id. at 13. Appellant notes that he was not able to attend the May 24, 2021
sentencing hearing because he was incarcerated in Florida and that the
Commonwealth and trial court were aware of his location. Id. at 14. Appellant
argues that he was not able to attend his sentencing because of his
incarceration on a bench warrant, and that he did not knowingly and
intelligently waive his right to be present during sentencing. Id. Therefore,
Appellant concludes that the trial court violated his constitutional right to be
present during sentencing.
We review a trial court’s decision to hold a trial or sentencing hearing in
absentia for an abuse of discretion. See, e.g., Commonwealth v. Wilson,
712 A.2d 735, 739 (Pa. 1998) (stating that “[t]he decision to conduct the
hearing in the defendant’s absence nevertheless remains within the discretion
of the trial judge”); Commonwealth v. Hilburn, 746 A.2d 1146, 1149 (Pa.
Super. 2000) (stating that “[t]his Court uses the same analysis for absence at
the sentencing phase as it does for absence at trial” (citation omitted)).
In Wilson, our Supreme Court explained:
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.
- 13 -
J-S06023-23
Wilson, 712 A.2d at 737; see also Hilburn, 746 A.2d at 1149 (holding that
the trial court did not abuse its discretion by trying the defendant in absentia
where she failed to appear for trial even though the trial court informed her
after jury selection that the trial would begin the following morning).
Rule 602 of the Pennsylvania Rules of Criminal Procedure provides, in
relevant part, as follows:
The defendant shall be present at every stage of the trial including
the impaneling of the jury and the return of the verdict, and at
the imposition of sentence, except as otherwise provided by this
rule. The defendant’s absence without cause at the time
scheduled for the start of trial or during trial shall not
preclude proceeding with the trial, including . . . the
imposition of sentence.
Pa.R.Crim.P. 602(a) (emphasis added); see also Pa.R.Crim.P. 602, cmt
(explaining that “[a] defendant’s presence may be deemed waived by the
defendant intentionally failing to appear at any stage of the trial after proper
notice”).
“Where the Commonwealth has demonstrated by a preponderance of
the evidence that the defendant is absent ‘without cause’ and that he
knowingly and intelligently waived his right to be present, he may be tried in
absentia.” Commonwealth v. Hill, 737 A.2d 255, 259 (Pa. Super. 1999)
(citations omitted); see also Pa.R.Crim.P. 602, cmt (the same).
Here, the trial court explained:
At the sentencing hearing on May 24, 2021, the court was
informed that [Appellant] was currently in Florida. Counsel for the
[Appellant] appeared. Sara Dudley, a Schuylkill County Adult
Probation Officer, testified that she knows [Appellant], that she
- 14 -
J-S06023-23
attempted to contact [Appellant] to get information from him for
his [PSI], that she was unable to do so because [Appellant] was
currently in custody in Osceola County, Florida and that Florida
was not going to extradite him. She testified that after the trial
in the within matter, [Appellant] absconded and Berks County,
where [Appellant] was serving probation, issued a bench warrant
and [Appellant] was picked up in Florida. [Appellant’s] counsel
objected to having [Appellant] be sentenced in absentia; counsel
had spoken to [Appellant] that day and [Appellant] was
incarcerated in Florida and was unable to be present to testify.
We initially note that our court has the capability to conduct
hearings using video conferencing, and no efforts were made by
[Appellant] or his counsel to request a continuance of the
sentencing so that [Appellant] could participate, either prior to or
on the day of his sentencing. There was simply an objection
lodged to his being sentenced in absentia.
A defendant has the right after indictment to be present for all of
his criminal proceedings. However, such a right can be
relinquished, by waiver or by one’s actions. . . .
Here, the date of sentencing was given verbally by this court to
[Appellant] after the jury’s verdict was rendered on April 6, 2021.
A PSI was also verbally ordered on April 6; 2021, giving
[Appellant] the opportunity to participate in the preparation of the
PSI and giving [Appellant] two months to prepare for his
sentencing date on May 24, 2021 at 2:00 PM. [Appellant]
voluntarily left Pennsylvania and absconded to Florida while under
Berks County supervision, and while knowing that he was to be
sentenced in Schuylkill County on May 24, 2021. The Berks
County Court of Common Pleas issued a bench warrant and
[Appellant] was arrested and detained in Florida as a result.
[Appellant’s] counsel was present for the sentencing and
presented no argument as to the sentencing itself or as to why
[Appellant] had absconded to Florida, and whether he did so
voluntarily or otherwise. The only argument presented was the
fact that [Appellant] wished to be heard and was unable to be
physically present to testify because he was incarcerated in
Florida. This court is unaware of any effort made by [Appellant]
or his counsel to ask for a continuance or to make arrangements
to have [Appellant] appear via video conference. The court
considered the PSI prior to sentencing [Appellant]. [Appellant]
had a chance to participate in the preparation of the PSI, but failed
- 15 -
J-S06023-23
to do so, and was unable to be reached by the Adult Probation
officer. We believe that we properly sentenced [Appellant], albeit
in his absence.
Trial Ct. Op., 8/31/21, at 7-9 (citations omitted and some formatting altered).
Following our review of the record, we discern no abuse of discretion in
the trial court’s decision to sentence Appellant in absentia. See Wilson, 712
A.2d at 739. The record reflects that Appellant was present for his trial, and
that the trial court informed him that the sentencing hearing was scheduled
for May 24, 2021. See N.T. Trial at 153-54. At sentencing, the
Commonwealth presented evidence that Appellant had subsequently left
Pennsylvania and that he was apprehended in Florida prior to the scheduled
sentencing hearing. See N.T. Sentencing Hr’g at 3-4. Therefore, the
Commonwealth proved by a preponderance of the evidence that Appellant was
absent without cause and that he knowingly and voluntarily waived his right
to be present for sentencing by absconding from supervision. See Wilson,
712 A.2d at 7379; Hilburn, 746 A.2d at 1149; Hill, 737 A.2d at 259.
Therefore, Appellant is not entitled to relief on this claim.6 For these reasons,
we affirm.
____________________________________________
6 To the extent the trial court suggests that it properly sentenced Appellant in
absentia because Appellant’s counsel failed to request a continuance or
accommodations to allow Appellant to remotely participate in the sentencing
hearing, we note that this is erroneous. See Trial Ct. Op., 8/31/21, at
8/31/21, at 7-9. As stated above, the Commonwealth bears the burden to
establish that proceeding in the defendant’s absence is appropriate. See Hill,
737 A.2d at 259. However, this Court “may affirm a decision of the trial court
if there is any basis on the record to support the trial court’s actions, even if
(Footnote Continued Next Page)
- 16 -
J-S06023-23
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/13/2023
____________________________________________
we rely on a different basis.” Commonwealth v. Moser, 999 A.2d 602, 606
n.5 (Pa. Super. 2010) (citation omitted). Therefore, we affirm for the reasons
stated above.
- 17 -