Com. v. Aly, I.

Opinion

J-S18007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : IBRAHIM ALY : : No. 1505 EDA 2015 Appellant

Appeal from the Judgment of Sentence April 21, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006077-2013

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J. FILED DECEMBER 01, 2017

Appellant, Ibrahim Aly, appeals from the judgment of sentence entered

by the Honorable Diana Anhalt of the Philadelphia Court of Common Pleas

following a probation violation hearing. We quash.

The relevant factual and procedural history is as follows. On September

12, 2013, Appellant was convicted of theft1 and receiving stolen property.2

Following his conviction, the trial court sentenced Appellant to time served to

twenty-three months’ incarceration, with a concurrent two-year probationary

period. Appellant was immediately paroled, and as a condition of his

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 Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 3921(a).

2 18 Pa.C.S.A. § 3925(a). J-S18007-17

probation, was required to comply with mental health treatment and drug

testing.

A year later, after refusing to comply with mental health treatment and

testing positive for marijuana, Appellant absconded from supervision. The

probation department notified Appellant of his alleged probation violations and

issued an absconder warrant for his arrest. Appellant was apprehended on the

warrant in the spring of 2015.

The trial court held a probation violation hearing on April 21, 2015. The

court found Appellant guilty of violating the conditions of his probation, and

sentenced him to serve his back time, with immediate parole and a concurrent

two-year probationary period.

Following the revocation hearing, Appellant filed a timely pro se motion

for reconsideration. Subsequently, on May 11, 2015, Appellant, once again,

absconded from probation supervision. The trial court issued a bench warrant

on May 15, 2015. On May 21, 2015, Appellant filed a pro se notice of appeal.

Appellant was not apprehended until November 22, 2016.

On appeal, Appellant argues the Commonwealth provided insufficient

evidence at his probation revocation hearing to establish he violated the terms

of his probation. Prior to addressing Appellant’s issue on the merits, we must

first address the Commonwealth’s claim we should quash Appellant’s appeal

due to Appellant’s fugitive status during the pendency of the appeal.

A defendant’s fugitive status affects his appellate rights. See, e.g.,

Commonwealth v. Doty, 997 A.2d 1184, 1187 (Pa. Super. 2010) (“[A]

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defendant who is a fugitive from justice during the appellate process may

forfeit the right to appellate review.”)

Our Supreme Court, in Commonwealth v. Deemer, 705 A.2d 827 (Pa.

1997), set forth the framework necessary to determine whether a defendant’s

fugitive status results in a waiver of his appellate rights:

If [the defendant] became a fugitive between post-trial motions and an appeal and he returns before the time for appeal has expired and files an appeal, he should be allowed to appeal. If he returns after the time for filing an appeal has elapsed, his request to file an appeal should be denied. If he becomes a fugitive after an appeal has been filed, his appeal should be decided and any fugitive status should be addressed separately. 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.

Id., at 829 (footnote omitted).

Here, Appellant became a fugitive between the filing of his post-trial

motions and the filing of his appeal. Appellant was not apprehended until

November 22, 2016—over a year after his appellate rights had lapsed.

Further, Appellant’s filing of a pro se notice of appeal during the appeal period

did not preserve his appellate rights. He filed the notice of appeal while being

a fugitive from justice. Appellant was unable to lawfully exercise his appellate

rights while simultaneously refusing to submit to the court’s jurisdiction during

the appeal period. See Doty, 997 A.2d at 1189 (holding that appellant’s

counsel’s filing of a notice of appeal during the appeal period did not preserve

appellant’s rights where appellant remained a fugitive from justice). See also

Commonwealth v. Hunter, 952 A.2d 1177, 1178 (Pa. Super. 2008)

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(concluding that because appellant remained a fugitive from the time of his

scheduled sentencing until after his counsel had filed an appeal and the appeal

deadline passed, he is not entitled to pursue an appeal).

Accordingly, we find Appellant has “forfeited his right to appellate review

of all claims raised in the instant appeal[.]” Doty, 997 A.2d at 1189.

Appeal quashed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/1/2017

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