Com. v. Moore, M.

J-S82010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARC D. MOORE :
:
Appellant : No. 1421 EDA 2016
Appeal from the Judgment of Sentence April 21, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000786-2014
BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED JANUARY 30, 2019
Marc D. Moore appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following a jury trial in
absentia, which resulted in convictions for possession of a controlled
substance with intent to deliver1 and knowing possession of a controlled
substance.2 Upon review, we quash the appeal.
On July 17, 2013, police officers surveilling the 2300 block of West
Nicholas Street in Philadelphia saw Moore exchange what appeared to be crack
cocaine for money from an unknown individual. The officers subsequently
arrested Moore and recovered from his person $221.00 and nineteen packets
of what later tested to be crack cocaine.
____________________________________________
1 35 P.S. § 780-113(A30).
2 35 P.S. § 780-113(A16).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S82010-18
Moore attended his preliminary hearing on January 21, 2014, voir dire
on February 10, 2016, and the first day of trial on February 11, 2016. He
failed to appear for the second day of trial on February 12, 2016. After waiting
until 11:00 AM, the Commonwealth moved to proceed in absentia. Officer
John Brady testified to calling Moore’s known phone numbers, including his
most recent home addresses, as well as contacting local hospitals, the medical
examiner’s office, and state, local, and federal prisons. The Commonwealth
entered into evidence a subpoena, signed by Moore, requiring his attendance
at trial on February 12, 2016. The court found that Moore had willfully
absented himself from trial and allowed the Commonwealth to proceed in
absentia. On February 16, 2016, the jury found Moore guilty of the
aforementioned offenses.
Moore did not appear for his sentencing hearing on April 16, 2016. The
Commonwealth presented the testimony of Detective Yusuf Jackson, who
searched unsuccessfully for information on Moore’s whereabouts by contacting
the owners or tenants of Moore’s last three known addressees, local hospitals,
and local, state, and federal prisons. The court ruled that reasonable efforts
had been made to locate Moore and sentenced him in absentia to a term of
two to four years’ incarceration. The instant appeal followed on May 11, 2016,
filed on Moore’s behalf by the Defender Association of Philadelphia. Moore
has yet to be located.
“On direct appeal . . . a defendant’s status during the 30-day appeal
period controls whether an appellate court will hear his appeal.”
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J-S82010-18
Commonwealth v. Doty, 997 A.2d 1184, 1189 (Pa. Super. 2010). Moore
forfeited his right to direct appeal by absconding during trial, failing to appear
during sentencing, and remaining a fugitive during the 30-day period allotted
for filing an appeal. See Commonwealth v. Deemer, 705 A.2d 827, 829
(Pa. 1997) (“If [a fugitive] returns after the time for filing an appeal has
elapsed, his request to file an appeal should be denied. . . . 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.”); see also Commonwealth v. Adams, 2019 WL
286560, at *8 (Pa. 2019) (affirming Deemer applies, even if counsel timely
filed notice of appeal, under circumstances where appellant absconded prior
to trial, during sentencing, during-post trial motions and during 30-day period
allotted for notice of appeal). We, therefore, quash Moore’s appeal. See
Commonwealth v. Hunter, 952 A.2d 1177, 1178 (Pa. Super 2008)
(quashing where fugitive was absent from time of sentencing until being
apprehended after appeal deadline passed).
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/19
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