J-S23040-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MUHAMMAD ALI : : Appellant : No. 2355 EDA 2023
Appeal from the Judgment of Sentence Entered March 17, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007378-2021
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 27, 2024
Appellant, Muhammad Ali, appeals from the judgment of sentence
following his bench convictions for strangulation and simple assault. 1 The case
was reassigned to a new court for sentencing. Appellant failed to appear for
sentencing and, after an evidentiary hearing was held, the court proceeded to
sentence him in absentia. Appellant challenges the exercise of the court’s
sentencing discretion and its ruling to proceed in absentia. We affirm.
The record was aptly summarized by the court below, as follows:
At trial, the Commonwealth presented the testimony of the victim (“C.A.”), the victim’s sister (“K.A.”), the victim’s mother (Makkah Ali), and Philadelphia Police Officer Jabari Williams. The defense presented the testimony of the victim’s grandmother (Rochelle Ali). Viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence established the following. On ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2718(a)(1) and 2701(a), respectively. J-S23040-24
August 5, 2021, when C.A. was eight years old, he went with his mother and his sisters to visit his grandmother’s house. Notes of Testimony (“N.T.”) 5/12/22 at 20-21, 64. During C.A.’s visit to the two-story house, C.A. went to the downstairs living room with his sisters and a cousin while C.A.’s mother and grandmother remained upstairs. Id. at 22-24. At some point, defendant Muhammad Ali, who is an uncle of C.A., arrived at the home and went to the downstairs living room. Id. at 18-19, 25. While C.A. was playing with a toy gun, defendant took the toy gun away from C.A. Id. at 25-26. Defendant then began teasing C.A., repeatedly asking, “Are you mad? Are you sad?” Id. at 67. After C.A. continued to ask for the toy gun back, defendant stated, “You [sic] going to respect me.” Id. at 68. Defendant, who is about six feet and three inches tall, then grabbed C.A., lifted him in the air, pinned him against a wall, and began choking his neck with both hands. Id. at 27-28, 68, 106. C.A. was unable to breathe as defendant choked him. Id. at 28. Defendant then turned C.A. upside down and began punching C.A. in the ribs with a closed fist while holding him in the air by his leg. Id. at 28-30, 68-69. At that point, C.A.’s sister, K.A., and a cousin tried to run upstairs to tell C.A.’s mother about what was happening, but defendant told them to sit down. Id. at 69-70. Eventually, defendant dropped C.A., who then attempted to run upstairs but was stopped by another uncle, Ramadan, who held C.A’s arms behind his back. Id. at 22, 30-31. C.A. kicked back at Ramadan until he freed himself and ran upstairs to try to tell his mother about what defendant had done. Id. at 31. When C.A. arrived upstairs, he was out of breath and had difficulty speaking to his mother. Id. at 32-33, 83-84. C.A. was crying and red. Id. at 85. Defendant then came upstairs and hit C.A. in the head with an open hand, causing C.A. to fly across the room. Id. at 83-85. C.A.'s mother yelled, “Keep your hands off of him.” Id. at 84. C.A.’s mother then took C.A. and her children out of the house and called the police. Id. at 86.
Within ten minutes, Officers Jabari Williams and Sean Turner of the Philadelphia Police Department arrived at the house. Id. at 87, 109-110, 112-113. While one of the officers was checking C.A.’s body, C.A.’s mother observed two hand marks on C.A.’s neck and red spots on C.A.’s ribs. Id. at 93. After speaking with C.A., defendant, and other members of the family, the officers arrested defendant. Id. at 88, 112-113. The following day, C.A.’s mother took C.A. to the hospital, where his ribs were X-rayed due to soreness and redness. Id. at 89. The X-ray results showed no evidence of fractures. Id. at 123.
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Trial Court Opinion, 2-3.
Appellant waived his right to a jury and was tried before the Honorable
Mia Perez on May 12, 2022. At the conclusion of the trial, the court found him
guilty of strangulation and simple assault, and not guilty of recklessly
endangering another person. N.T. 5/12/22, 147-148.
Sentencing was initially scheduled for July 2022, and after two
continuances, for September 23, 2022. See Docket Entries; Trial Court
Record, 7-8. On that date, the Defender Association of Philadelphia, which had
represented Appellant at trial, was permitted to withdraw. See Id. Judge
Perez appointed Jessica Mann, Esquire to represent Appellant. See Id. On
October 17, 2022, the scheduled sentencing hearing was continued because
Appellant was not brought to the courthouse from the prison. It was reported
to the court that he refused to take a required COVID test. See Id.
On November 22, 2022, the sentencing hearing could not be held
because Appellant again was not brought from the prison. It was reported to
the court that he again refused to take a required COVID test. N.T. 11/22/22,
3. Defense counsel reported that Appellant had been on a “medical hold” after
having been released from the hospital, but also had not been brought to the
“last video visits” she had scheduled. Id., 3-4. The court contacted an official
at the prison who confirmed that Appellant was refusing the COVID test. Id.,
5. The court also informed the official of the problem getting Appellant to his
video calls with his attorney. Id., 6. Counsel promised to tell Appellant to not
refuse COVID testing. Id.
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On December 1, 2022, Appellant was brought to the courthouse but
refused to leave the holding area to go before the court. Counsel spoke to
him, and reported to the court that Appellant did not trust counsel to act in
his best interest because she had not met with him. N.T. 12/1/22, 2. Counsel
represented to the court that after meeting with Appellant the issues had been
addressed and Appellant was willing to continue with assigned counsel. Id.
Counsel asked for a continuance. Id. The Commonwealth objected, but the
court granted the continuance, noting the “tortured history” of the case, the
need to amend the verdict page to conform to the verdict rendered and the
appointment of new sentencing counsel as contributing to the delays. Id., 3.
On December 19, 2022, Appellant refused COVID testing again and was
not brought to the courthouse from the detention center. N.T. 12/19/22, 3.
The court told counsel to find out why Appellant has been refusing testing and
rescheduled the sentencing hearing for January 23, 2023. Id., 3-4. The
Commonwealth objected to the continuance to put counsel on notice that it
would request proceeding in absentia. Id., 5-6.
The case was reassigned from Judge Perez to the Honorable Anthony G.
Kyriakakis. On January 23, 2023, Appellant was not brought to the courthouse
from the detention center. N.T. 1/23/23, 4. Prison authorities informed the
court that Appellant was not brought to the courthouse because he had
engaged in a fight with another inmate that morning at the detention center.
Id., 4-5 The Commonwealth did not ask to proceed in absentia. Defense
counsel asked to be removed from the case. Id., 6. She believed there was a
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mental health issue with Appellant and he no longer would communicate with
her. Id. Counsel did not believe she could effectively represent Appellant when
he would not speak with her, and that would be true even if the court
proceeded to sentencing in absentia. Id. The court continued the sentencing
hearing, setting a date for a status of representation. Id., 6-7.
On January 30, 2023, the court permitted counsel to withdraw from
representation. See Docket Entries; Trial Court Record, 12-13. The court
appointed Jules Szanto, Esquire, to represent Appellant at sentencing, which
was scheduled for Monday, March 13, 2023. See Id. On that date, newly-
appointed counsel informed the court that Appellant wanted to proceed pro se
and wanted the documents and discovery that counsel had in order to prepare.
N.T. 3/13/23, 3. Counsel had intended to give Appellant the file at the
courthouse but forgot to bring it with him. Id. Due to counsel’s court schedule
that day, he would not be able to get the file until later. Id., 4. The court
informed counsel that Appellant was not yet at the courthouse and so put the
matter on hold. Later that day the court continued sentencing to March 17.
2023, because both counsel and the court were busy. Id., 5-6.
On Friday, March 17, 2023, Appellant was not brought to the courthouse
from the detention center. The report from prison authorities was that he
refused to come to the courthouse. The court wanted the sergeant that had
communicated with Appellant to testify before it decided how to proceed. N.T.
3/17/23, 3. Sergeant Jorell Durham explained that Appellant had told an
officer that he refused to go to the courthouse. The sergeant along with other
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officers went to Appellant’s cell to speak with Appellant. The sergeant
explained that without a court order he could not physically force Appellant to
go to court. Appellant told the officers that they would have to fight him to
get him to leave his cell. Id., 6-9. The court noted that it had intended to
colloquy Appellant on his decision to proceed pro se and had continued the
matter from earlier in the week to do so. Id., 11.
The Commonwealth moved to proceed in absentia. N.T. 3/17/23, 12. It
noted that before the current judge had been assigned, Appellant had twice
refused to come to court for a sentencing hearing and had twice requested
new counsel. Id. It argued that by refusing to come to court, Appellant was
willfully absenting himself from the proceedings without cause and that
Pa.R.Cim.P. 602 permitted sentencing in absentia. Id., 11-12. Appellant’s
counsel noted that Appellant had been at the courthouse on Monday of that
week and had expected then to speak with the court about proceeding pro se.
Id., 13-15. Counsel then argued that Appellant was absent with cause
because his refusals to appear in court stemmed from his distrust of counsel.
Id., 15. Counsel suggested that this absence derived from Appellant’s
frustration on Monday to have come to court and not been heard about
representing himself, or, for that matter, obtaining the file from counsel that
he required to adequately represent himself. Id., 16-17. Counsel represented
that he gave Appellant’s social worker the file to deliver to Appellant in prison
midweek. Id., 16.
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The court noted that it was counsel’s conflicts, not the court’s, that
prevented holding a hearing on Monday. N.T. 3/17/23, 17. The court
recognized that Appellant had a right to proceed pro se, and it had been ready
to hold a hearing on the exercise of that right. Id., 18. It ruled that by refusing
to come to court today, Appellant had declined to exercise that right in an
appropriate fashion. Id. If this were an isolated incident, the court would be
inclined to continue the matter, but Appellant’s behavior fit a pattern of
Appellant refusing to come to court each time the sentencing was likely to be
held. Id., 18-19. The court then found, “based on all the evidence that’s been
presented, the evidence on the record, the docket, the evidence today, that
the defendant’s absence today for a Sentencing Hearing is without cause, and
the sentencing proceedings will proceed today, and we will impose sentence
on the defendant.” Id., 19.
Following a recess, the court held a full sentencing hearing. It
determined that Appellant’s prior record gave him a Repeat Felon status. N.T.
3/17/23, 20-27. The sentencing guidelines for the strangulation conviction
was 60 months to 72 months incarceration in the intermediate range and for
the simple assault conviction 21 to 30 months in the intermediate range. After
hearing extensive argument based on the pre-sentence investigation report
and the difficult circumstances of Appellant’s childhood, the court imposed
consecutive terms in the mitigated range or under, of: 54 to 108 months
incarceration on the strangulation conviction; and three years’ probation for
the simple assault conviction. Id., 54.
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Appellant, through counsel, timely filed a post sentence motion on
March 27, 2023, seeking reconsideration on the ground that Appellant’s failure
to appear at the sentencing was not willful. Motion for Reconsideration, 1-2;
Trial Court Record, 98-99. The court granted a hearing. Appellant testified by
video. He stated that he was in the courthouse on March 13, 2023, expecting
to be brought to the courtroom. He was not. He knew he was expected to
appear on March 17, 2023, but could not. He was “very sick” on that date with
a sore throat. The COVID testing that had been in place had been
discontinued. Appellant therefore did not know whether he had COVID. He
told a correctional officer he was sick, and that was the reason he did appear
on March 17th. N.T. 6/9/23, 14-15. He also denied being in a confrontation
with correctional officers that day, and believed it was the person in the cell
next to him that became confrontational and refused to go to the courthouse.
Id., 16. Appellant admitted to refusing COVID tests on several dates to avoid
coming to court, but asserted it was because he had been badly beaten in a
prison fight and then hospitalized and had not fully recovered from his injuries,
and while in the hospital did not have proper clothing to come to court. Id.,
16-18, 20. Appellant claimed to have no memory of why he did not appear at
the December 19, 2022 listing. Id., 18-20. Similarly, he claimed to have no
memory of why he did not come to court on January 23, 2023, but denied
that he had been in a fight with other inmates. Id., 21.
The court denied reconsideration by order dated July 13, 2023. Order,
7/13/23; Trial Court Record, 101. In the order, the court stated it found
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Appellant’s “testimony was not credible” based on what he said and his
demeanor at the reconsideration hearing. Id., n.1. The order included a proof
of service indicating that counsel was served by first class mail and Appellant
was served by certified mail. Order, 7/13/23, Certificate of Service; Trial Court
Record, 102.
Appellant filed a pro se Notice of Appeal, with a handwritten date of July
18, 2023.2 Notice of Appeal, 1-2; Trial Court Record, 103-104. The post mark
on the envelope indicates it was received by the post office on August 29,
2023.
On September 12, 2023, the sentencing court issued to Appellant an
Order pursuant to Pa.R.A.P. 1925 for him to file a Concise Statement of Errors
to Be Raised on Appeal. Rule 1925(b) Order; Trial Court Record 107.
On October 2, 2023, sentencing counsel filed a motion to withdraw as counsel,
stating that he advised Appellant that an appeal would lack merit but Appellant
had filed a pro se Notice of Appeal. Motion to Withdraw, 10/2/23, 2-3; Trial
Court Record, 113-114. The court granted the motion on October 6, 2023,
and appointed present counsel to represent Appellant. Order, 10/6/23; Trial
Court Record, 116. On October 16, 2023, the court granted Appellant’s
request for an extension of time to file his Rule 1925(b) Statement. Order,
10/16/23; Trial Court Record, 118. ____________________________________________
2 On the Certificate of Service attached to the Notice, Appellant asserted that
(final) sentencing counsel refused to file an appeal on his behalf on the ground that there was “no appeal issue.” Notice of Appeal, Certificate of Service; Trial Court Record, 105.
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On November 8, counsel filed the ordered Rule 1925(b) Statement. It
raised three enumerated issues: (1) whether the evidence was sufficient at
trial; (2) whether the sentence imposed was an abuse of discretion in that the
court failed to consider all of the sentencing factors; and (3) whether the court
erred in imposing a sentence in the upper range of the guidelines without
considering mitigating factors. Rule 1925(b) Statement, 1-2; Trial Court
Record, 119-120.
In its written opinion, the lower court noted that Appellant’s pro se
Notice of Appeal was untimely filed. Trial Court Opinion, 2, 4-5. It also
addressed each of the three claims raised in Appellant’s counselled Rule
1925(b) Statement.
In his brief, Appellant lists four enumerated questions, as follows:
1. Whether the trial court erred and abused its discretion in conducting [Appellant’s] sentencing in absentia while he was being held in custody?
2. Whether a defendant has the absolute right to be present at all stages of the criminal proceedings against him, including sentencing?
3. Whether the trial court violated [Appellant’s] constitutional right to be present during his sentencing hearing?
4. Whether [Appellant’s] absence from sentencing was without cause and he did not knowingly and voluntarily waive his right to be present for sentencing?
Appellant’s Brief, 6.
We must first turn to whether the pro se Notice of Appeal was timely
filed, as it affects whether we have jurisdiction over this appeal.
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Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014). The trial
court notes that the pro se Notice “was self-dated July 18, 2023,” but was
“postmarked August 29, 2023, and received by” the court on September 5,
2023. Trial Court Opinion, 4. It discerns from the fact that the postmark was
“17 days after the filing deadline of August 12, 2023,” that this Court could
“properly infer that [Appellant] did not deliver the notice of appeal to prison
authorities by the filing deadline,” and so could not avail himself of the benefit
of the prisoner mailbox rule. Id., 5. See also Commonwealth v. Chambers,
35 A.3d 34, 38 (Pa. Super. 2011) (“a pro se prisoner’s document is deemed
filed on the date he delivers it to prison authorities for mailing”). The
Commonwealth joins the trial court’s analysis and asks us to quash. Appellee’s
Brief, 13. Appellant argues that he was not “properly advised that he had
thirty (30) days within which to file his notice of appeal, i.e., a breakdown in
the court’s operation” that would permit us to entertain the appeal. Appellant’s
Brief 18.
We note that that trial court’s order denying reconsideration states
clearly that a notice of appeal “must be filed within thirty days of the date of
the entry of this Order.” Order, 7/13/23; Trial Court Record, 101. In addition,
the certificate of service demonstrates it was sent on July 13 directly to
Appellant by certified mail. We could infer further that Appellant received the
order as he “self-dated” the notice of appeal for July 18, 2023.
Although the order denying reconsideration contains a certificate of
service, the docket available for our review does not contain an entry
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indicating that the order was served. “The time for the filing of a notice of
appeal runs from the order’s ‘entry’ … [which] occurs for present purposes on
the day the clerk of the trial court mails or delivers copies of the order to the
parties[.]” Commonwealth v. Midgley, 289 A.3d 1111, 1116 (Pa. Super.
2023) (internal citations omitted). Service of the order, however, must comply
with Rule 114 which, among other things, mandates that the relevant docket
entries include the “the date of service of the order or court notice.”
Pa.R.Crim.P. (C)(2)(c). “Where the trial court docket in a criminal case does
not indicate service on a party or the date of service, we will not quash the
appeal or require further proceedings.” Midgley, 289 A.3d at 1117. Instead,
“when there is a docketing failure or lack of notice, this Court will excuse an
untimely appeal.” Commonwealth v. Powell, 290 A.3d 751, 757 n.12 (Pa.
Super. 2023).
Having determined that the appeal is properly before us, we must now
discern what, if any, issue Appellant properly preserved and raised for our
consideration. Appellant filed the ordered Rule 1925 Statement, raising three
claims: a challenge to the sufficiency of the evidence at trial and two
challenges to the exercise of the court’s sentencing discretion. See Rule
1925(b) Statement, 1-2; Trial Court Record, 119-120. The trial court
addressed all three claims demonstrating that they were without merit. Trial
Court Opinion, 5-12. Appellant has not forwarded any of these claims in his
appellate brief, and therefore has abandoned them on appeal. See
Commonwealth v. Williams, 753 A.2d 856, 860 n.3 (Pa. Super. 2000)
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(“issue pertaining to the robbery sentence … has not been presented by
Appellant to our Court in his brief, hence we deem it to have been
abandoned”).3
Instead, Appellant has briefed whether the trial court properly
sentenced him in absentia, in four separately enumerated questions. Appellant
did not include in his Rule 1925(b) Statement any claim with respect to the
court’s decision to sentence him in absentia. Nor did the trial court address
such claim.
Where, as here, “the trial court orders an Appellant to file a concise
statement of matters complained of on appeal under Pa.R.A.P. 1925, any issue
not contained in that statement is waived on appeal.” Commonwealth v.
Rolan, 964 A.2d 398, 409 (Pa. Super. 2008) “Any issues not raised in a [Rule]
1925(b) statement will be deemed waived.” Commonwealth v. Castillo, 888
A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998)). See also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in
the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived”). Accordingly, any claim with respect to the trial ____________________________________________
3 We note that Appellant’s post-sentence motion did not include any challenge
to the discretionary aspects of his sentence, but only sought reconsideration of the court’s decision to sentence him in absentia. “[I]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived.” Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 2009). Had Appellant forwarded either of the discretionary sentence claims in his brief, we likely would have found them to have been waived.
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court’s ruling that Appellant had voluntarily failed to appear in court at the
time set for sentencing is unreviewable on appeal.
Appellant attaches to his brief a putative Rule 1925(b) Statement self-
dated November 26, 2023, that is different than the the one he filed on
November 8, 2023. In the attached statement he ostensibly raised a claim the
trial court erred by proceeding to sentence him in absentia. See Appellant’s
Brief, Attachment B. That statement is dated more than two weeks after his
ordered statement was due. The record does not show he was given
permission to file a second or otherwise untimely statement. Additionally, the
statement does not appear to have been filed. There is no “filed” stamp on it,
it is not listed in the docket entries, and it is not included in the record certified
to this Court. Moreover, the trial court filed its Rule 1925(a) opinion more than
two weeks later, on December 15, 2023, yet makes no mention of this later
statement in its opinion and does not address the issue raised in it. This
second, either unfiled or unauthorized, Rule 1925(b) Statement does not
preserve Appellant’s claim on appeal. See Commonwealth v. Schoefield,
888 A.2d 771, 773-774 (Pa. 2005) (finding appellant’s claims waived on
appeal where they were raised in a Rule 1925(b) statement she appended to
her brief, but which did not have a time stamp from the prothonotary of the
lower court and was not contained in the certified record); Commonwealth
v. Zingarelli, 839 A.2d 1064, 1075-76 (Pa. Super. 2003) (appellant’s claim
waived on appeal where his Rule 1925(b) statement was not timely filed and
the trial court did not address the claim in its opinion).
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We can only conclude that this putative Rule 1925(b) Statement was
never filed properly and does not exist for the purposes of appellate review.
Pa.R.A.P. 1921, Note (“An appellate court may consider only the facts which
have been duly certified in the record on appeal”). “We admonish counsel that
evidence de hors the record is wholly inapplicable to our review.”
Commonwealth v. Nasir, 308 A.3d 812, 819 n.4 (Pa. Super. 2023).
In the alternative, we discern no error in the trial court’s ruling that
sentencing should proceed in absentia. “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 return of the verdict and the
imposition of sentence.” Pa.R.Crim.P. 602(a). Appellant’s right to be present
at a particular stage of litigation can be waived by “words or actions.”
Commonwealth v. Rodriguez, 670 A.2d 678, 679 (Pa. Super. 1996).
Accord Commonwealth v. Hilburn, 746 A.2d 1146, 1149 (Pa. Super.
2000). If a defendant willfully absents himself from the sentencing hearing,
he may be sentenced in absentia. Commonwealth v. Bond, 693 A.2d 220,
223-24 (Pa. Super. 1997); Commonwealth v. Ah Thank Lee, 566 A.2d
1205, 1206-07 (Pa. Super. 1989).
“[B]efore exercising its discretion to proceed in absentia, a trial court
must weigh the specific circumstances of the case such as the probability that
the defendant will return and the difficulty of rescheduling.” Hillburn, 746
A.2d at 1149. See also Commonwealth v. Wilson, 712 A.2d 735, 738 (Pa.
1998) (the rules permit a “court to exercise its discretion in deciding whether
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to continue in the defendant’s absence if the defendant is missing without
cause”). “The burden of proving that the defendant’s absence is without cause
is upon the Commonwealth by a preponderance of the evidence.” Pa.R.Crim.P.
602, comment. See Commonwealth v. Kelly, 78 A.3d 1136, 1143 (Pa.
Super. 2013), (noting “patently inconsistent” statements on which party bears
the burden and stating “the safest course of action is to view the proceedings
as requiring the Commonwealth to have proven by a preponderance of the
evidence that Appellant was absent without cause”), overruled in part by
Commonwealth v. King, 234 A.3d 549, 570-571 (Pa. 2020) (discussing
merger principles). “[W]hen a defendant is unaware of the charges against him,
unaware of the establishment of his trial date or is absent involuntarily, he is
not absent ‘without cause’ and therefore cannot be tried in absentia.” Kelly,
78 A.3d at 1143.
The record shows that Appellant knew of his scheduled sentencing
hearings and had repeatedly and purposefully avoided coming to court on
those dates. In particular, the sentencing court found, that Appellant, who
was incarcerated while awaiting sentencing, refused to appear for multiple
sentencing hearings. On three occasions – October, 17, 2022; November 22,
2022; and December 19, 2022 – he prevented himself from being transported
to the courthouse for sentencing by refusing to take the necessary COVID
test. N.T. 11/22/22, 3-6; N.T. 12/19/22, 3-6; N.T. 1/23/23, 5; N.T. 6/9/23,
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20.4 On the morning of the January 23, 2023 scheduled date for sentencing,
Appellant engaged in a fight with other inmates and as a direct result could
not be transported to the courthouse for sentencing. N.T. 1/23/23, 4-5.
On March 17, 2023, a date scheduled for sentencing with Appellant’s
third counsel, Appellant was not brought to the courthouse because he refused
to leave his cell in the prison. N.T. 3/17/23, 3. The court held a hearing to
determine whether it should proceed to sentencing in Appellant’s absence. At
the hearing, the court heard testimony from the sergeant who worked in the
facility where Appellant was incarcerated. He testified that when the officers
attempted to transport Appellant to court that morning, he was “disruptive”
and let the officers know “that they were going to have a fight if they tried to
get him out of the cell or they would have a fight if they attempted to handcuff
him or search him or anything else.” N.T. 3/17/23, 7. According to the
sergeant, Appellant “very aggressively” said things such as, “Do whatever you
all got to do, I’m not going down there.” Id., 7-8. Because the officers did not
have a court order directing them to use physical force to bring the resistant
Appellant into court, they did not transport him to court. Id.5 ____________________________________________
4 Appellant admitted at the reconsideration hearing to intentionally refusing
the required COVID testing to avoid being brought to court. See N.T. 6/923, 19-20.
5 Appellant denied at the reconsideration hearing that he refused to come to
court on March 17, 2023, and claimed the sergeant confused him with the prisoner in the neighboring cell. See N.T. 6/9/23, 16. He claimed he did not come to court because he was sick with a sore throat on that date. See id., (Footnote Continued Next Page)
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In addition to hearing the sergeant’s testimony, the court also reviewed
the docket entries, which showed that Appellant had repeatedly refused to
come to court for sentencing. N.T. 3/17/23, 10-12, 18. Appellant’s attorney
conceded “there’s a history of refusal to come to court.” Id., 15. Based on this
record, the court found that Appellant had refused to come to court “without
cause” and therefore it was proper to sentence him in absentia. Id., 18-21.
The court acknowledged that Appellant apparently had concerns regarding his
representation, and the court made clear that it would have been willing to
address those concerns if defendant had appeared in court. Id., 18-19, 21.6
But, the court explained, “what [defendant] does not have a right to do is
simply refuse to come to court, and to do so repeatedly, as he has done in
this case.” Id., 19, 21. Following this ruling, the court conducted a full
sentencing hearing, during which Appellant was represented by his attorney,
and the sentence terms imposed were in the mitigated range or below. Id.,
20-56.
The court held a reconsideration hearing. Appellant testified to his
reasons for refusing to appear in court in the fall of 2022 and on March 17,
2023. The trial court found this testimony not credible. Order, 7/13/23 n.1; ____________________________________________
15. The trial court found Appellant not credible based on his testimony and demeanor. Order, 7/13/23 n.1; Trial Court Record, 101.
6 The only date in more than six months on which Appellant allowed himself
to be transported to the courthouse was the prior Monday, March 13, 2023. On that date, Appellant knew he would not be sentenced and expected to appear before the court for approval to represent himself and to obtain his attorney’s file in order to prepare for sentencing. See N.T. 3/17/23, 3-6.
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Trial Court Record, 101.7 Accordingly, in denying the reconsideration motion,
the court stated that “[t]he record in this case, including the credible
testimony of Sergeant Jorrell Durham given at the sentencing hearing held on
March 17, 2023, established that defendant was absent from his sentencing
hearing without good cause and, as a result, that it was proper for the Court
to sentence defendant in absentia.” Id. We agree. See Hilburn, 746 A.2d at
1149-50 (trial court did not abuse its discretion by sentencing appellant in
absentia where appellant did not have good cause for her absence on the day
of sentencing and was knowingly and voluntarily absent); Commonwealth
v. Bond, 693 A.2d 220, 223-24 (Pa. Super. 1997) (trial court did not abuse
its discretion by sentencing appellant in absentia, as appellant voluntarily
absented himself from the proceedings without cause).
Appellant only contends that, based on his testimony, he was sick on
March 17, 2023, and therefore his absence was not voluntary. Appellant’s
Brief, 17. Appellant ignores the trial court’s explicit finding that his testimony
at the reconsideration hearing was not credible, and its explicit finding that
the sergeant’s testimony that Appellant refused to leave his cell on March 17,
2023, was credible. As a result, Appellant’s argument that the trial court
____________________________________________
7 Notably, Appellant testified to a failure of memory to explain why he did not
appear at scheduled sentencing hearing in December 2022 and January 2023. See N.T. 6/9/23, 20-21. He admitted to the possibility that, as was reported to the court, he had refused the required COVID testing in December. Id., 20. He denied that he engaged in a fight with other inmates, as was reported to the court, on January 23, 2023, but could not recall any reason for not attending the scheduled sentencing hearing. Id., 21.
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abused its discretion is based on testimony that we cannot consider on appeal.
See Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006)
(As a general rule, “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”). Based on the evidence the trial court found credible
and Appellant’s multiple unilateral refusals to appear in court documented in
the record, we find the trial court did not abuse its discretion to sentence
Appellant in absentia on March 17, 2023. Accordingly, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Date: 11/27/2024
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