Com. v. Kilgore, K.

• Court: Superior Court of Pennsylvania
• Decided: January 8, 2026
• Docket: 1387 EDA 2025
• Status: Unpublished

Opinion

J-S38034-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KHARIM KILGORE : : Appellant : No. 1387 EDA 2025

Appeal from the Judgment of Sentence Entered April 28, 2025 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002538-2022

BEFORE: McLAUGHLIN, J., KING, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 8, 2026

Appellant, Kharim Kilgore, appeals from the judgment of sentence of 6

to 12 months’ incarceration, followed by 1 year probation, imposed after a

jury convicted him, in absentia, of retail theft (18 Pa.C.S. § 3929(a)(1)),

receiving stolen property (18 Pa.C.S. § 3925(a)), possession of a controlled

substance (35 P.S. § 780-113(a)(16)), and possession of drug paraphernalia

(35 P.S. § 780-113(a)(32)). After careful review, we affirm.

The trial court set forth a detailed summary of the facts of Appellant’s

case, which we need not reiterate herein. See Trial Court Opinion (TCO),

7/10/25, at 1-3. We only note that Appellant’s convictions stemmed from

evidence that he “entered a Home Depot hardware store, loaded a flat-bed

cart with flooring, and passed all points of sale without making a payment on

the merchandise.” Id. at 1 (citation to the record and quotation marks

omitted). On August 13, 2024, Appellant’s jury trial commenced. At the start J-S38034-25

thereof, the following exchange between the trial court, Appellant’s attorney,

Kenneth B. Hone, Esq., and the prosecutor, Alexandria Baland, Esq., occurred:

THE COURT: All right. [Attorney] Hone, good morning.

[ATTORNEY] HONE: Good morning, Your Honor.

My client, as far as I know, was briefly present but is no longer with us. I -- he was supposed to be calling his other attorney regarding a matter for me. I saw him on the phone, I then saw him hit the stairs, I then went after him down the stairs and can’t find him.

[ATTORNEY] BALAND: Your Honor, the Commonwealth would request a bench warrant for this individual.

The Commonwealth is ready to proceed. This is the --- I’m not sure of the exact number of times this matter has been scheduled for trial, but we have been ready at every single listing.

It’s my understanding that he was seen before Judge Gilman on June 3rd following a bench warrant hearing and was -- the bench warrant was rescinded. If Your Honor is inclined to issue a bench warrant due to his failure to appear[,] or appearing and then leaving, we would ask that Your Honor order that he be held at the next bench warrant hearing.

THE COURT: All right.

[ATTORNEY] BALAND: I believe it’s due to the fact that he has two violations of --

THE COURT: Well, what’s the Commonwealth’s position on trying him in absentia? Since we know that he knew he had court today because he was here and appeared and then apparently left.

[ATTORNEY] BALAND: Your Honor, the Commonwealth would be ready to proceed.

[ATTORNEY] HONE: Your Honor, I would ask that we not [proceed in absentia]. … [During t]he brief moments I did have with him [today] it was [clear that it was] his intention, if it was a trial, [that] he would be testifying, and he cannot do that if he’s not here.

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THE COURT: Okay, but he chose to not be here. I mean he was here, we’re ready, we would have given you whatever opportunity you needed to consult with him, and he certainly could have testified.

So let’s get the panel in, let’s pick a jury. If you can find him, if you can call him or if he comes back, of course then we would proceed with him.

[ATTORNEY] HONE: Could I have at least until 11:00 to see if I can walk around to find him before they bring the panel in?

THE COURT: No. No. I’m not giving him --- it would take 20 minutes to get the panel up and get seated. You can certainly do that until the panel comes up here.

We’ll take a recess.

(Whereupon, a recess was taken.)

N.T. Trial, 8/13/24, at 4-7.

After the recess, the Commonwealth indicated that it planned to present

“testimony regarding [Appellant’s] arrival and departure this morning to allow

for his trial to be held in his absence.” Id. at 7. The Commonwealth then

called Jackie Thomson to the stand. Id. Ms. Thomson was the loss prevention

officer at Home Depot who confronted Appellant as he was stealing items from

the store. Id. at 32, 41. Ms. Thomson testified that on the morning of the

trial, she saw Appellant as he “went into the courtroom, [then] was in the

hallway, and then … left.” Id. at 9. When asked if she saw Appellant speaking

to anyone, she indicated that she observed Appellant talking to his attorney.

Id. Appellant then “left the area, the floor.” Id.

After Ms. Thomson’s testimony, the following exchange between the

parties and court occurred:

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[ATTORNEY] BALAND: Your Honor, I do believe that [Attorney] Hone can testify, I don’t believe a privilege attaches to the conversations pertaining to today’s scheduling or that [Appellant] was aware of today’s proceedings if the [c]ourt would like to inquire regarding those facts. Obviously not pertaining to the substantive portion of their conversation.

THE COURT: Well, I’m not going to require [Attorney] Hone to testify, although I would assume, knowing [Attorney] Hone for a long time as I have, that if, in fact, [Appellant] had stated a valid reason to leave, [Attorney] Hone would be certainly telling us that and would have told us that by this point. So my assumption is if he does not testify[,] he has no information favorable to his client in that regard. Okay?

[ATTORNEY] BALAND: Okay, Your Honor.

THE COURT: All right. Anything you wish to present, [Attorney] Hone?

[ATTORNEY] HONE: Your Honor, all I would say is I have no information on where he is at the current time. I do not see him.

THE COURT: And I would say I don’t believe that you did or had any part in him leaving. I don’t.

So, therefore, I will issue a warrant for the arrest of [Appellant]. I find that he has left with no stated purpose and no valid purpose, and it is the [c]ourt’s intention to try him in absentia. We have a jury panel assembled, and we would go and choose a jury and then begin the trial. Certainly if [Appellant] appears between now and the start of the trial[,] or at any point during the trial[,] he can participate in that trial.

Id. at 10-11.

The trial then proceeded without Appellant in attendance. At the close

thereof, the jury convicted him of the above-stated offenses. Appellant’s

sentencing was deferred, given his absence. “Around six (6) months later, on

February 24, 2025, Appellant appeared for a bench warrant hearing, and he

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received a sentencing date.” TCO at 4. On April 28, 2025, the court sentenced

him to the aggregate term set forth supra.

Appellant filed a timely notice of appeal, and both he and the court have

complied with Pa.R.A.P. 1925. Herein, he states one issue for our review:

“Did the trial court err in allowing Appellant to be tried in absentia?”

Appellant’s Brief at 7 (unnecessary capitalization and bold emphasis omitted).

To begin, we note that whether a defendant has been denied their right

to be present at trial is a question of law for which our standard of review is

de novo and our scope of review is plenary. See Commonwealth v. Tejada,

161 A.3d 313, 317 (Pa. Super. 2017). Additionally, this Court recently

summarized:

“Article I, § 9 of the Pennsylvania Constitution and Pennsylvania Rule of Criminal Procedure 602 guarantee the right of an accused to be present in the courtroom at every stage of a criminal trial.” Commonwealth v. Hunsberger, 58 A.3d 32, 38 (Pa. 2012) (citation omitted). However, Pennsylvania law permits trial in absentia if the defendant’s absence is without cause. See Pa.R.Crim.P. 602(A) (“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.”); see also Commonwealth v. DeCosta, 197 A.3d 813, 816 (Pa. Super. 2018). “Where the Commonwealth has demonstrated by a preponderance of the evidence that the defendant is absent ‘without cause’ and 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) (citation omitted); see also Pa.R.Crim.P. 602, cmt. “However, when 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.” Hill, 737 A.2d at 259 (citation omitted). It is within the trial court’s discretion to

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proceed with trial in absentia instead of granting a continuance. See Commonwealth v. Wilson, 712 A.2d 735, 739 (Pa. 1998).

Commonwealth v. Foreman, 92 WDA 2023, unpublished memorandum at

5 (Pa. Super. filed Jan. 18, 2024).1

Moreover, Pennsylvania Rule of Criminal Procedure 602 states:

(A) 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 return of the verdict and the imposition of sentence.

Pa.R.Crim.P. 602(A). The comment to this rule clarifies 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.” Pa.R.Crim.P. 602, cmt.

In support of this statement, the comment cites, inter alia, Commonwealth

v. Sullens, 619 A.2d 1349 (Pa. 1992).

There, Sullens was notified of his nonjury trial but failed to appear, and

the court conducted the trial in absentia. Sullens, 619 A.2d at 1350. When

Sullens was later apprehended, he appeared for sentencing and “admitted that

he had notice of the trial date[,]” but “stated that he had absented himself

because he did not want to be found guilty. He offered no justifiable reason

for his absence.” Id. On appeal, our Supreme Cout held that the trial court

did not abuse its discretion in proceeding with the trial in Sullens’ absence, as

the evidence was sufficient to demonstrate that he had notice of his trial date ____________________________________________

1 Pursuant to Pa.R.A.P. 126(b), non-precedential decisions of this Court filed

after May 1, 2019, may be cited for their persuasive value.

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and failed to appear. Id. at 1352. The fact that Sullens later admitted that

he knew of his trial date and “willfully decided to absent himself without cause

or justification” bolstered the Court’s decision. Id. at 1353.

Instantly, Appellant claims that Sullens is distinguishable from his case.

He argues that while Sullens admitted he was aware of his trial date and

willfully chose not to appear without cause, “Appellant made no such

acknowledgement.” Appellant’s Brief at 13. Therefore, Appellant insists that

“there was no showing that he knowingly and intelligently waived his right to

be present.” Id.

We disagree. Appellant’s actions were a clear acknowledgment that he

had notice of his trial and willfully chose to absent himself. Namely, he arrived

at the courthouse on the day his trial was set to begin, spoke with his attorney,

and then left without explanation to his counsel or the court. This was

sufficient to demonstrate that Appellant had notice of the date and time of

trial, and that he willfully chose to leave without cause.

Our Supreme Court’s decision in Wilson supports our conclusion.

There, Wilson arrived at the courthouse on the day his trial was set to begin,

participated in plea discussions with his attorney and the Commonwealth, and

then fled the courthouse when plea negotiations failed. Wilson, 712 A.2d at

736. The Commonwealth notified the court that Wilson had “absented

himself” and that by all indications, it was a willful decision. Id. Defense

counsel asked for a continuance “until there [was] an attempt to find

[Wilson,]” but the court denied that request and the trial proceeded in

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absentia. Id. Our Supreme Court found no abuse of discretion in the trial

court’s decision, stressing that Wilson had appeared “and participated in plea

negotiations[,]” demonstrating that he “was fully aware of the date and time

of the trial, he was not detained beyond his control, and he could, and did,

appear on the morning of the trial.” Id. at 739. Our Supreme Court held that

“[i]t was reasonable for the [trial] court to conclude that [the defendant] fled

without cause and that he voluntarily waived his right to be present.” Id.

The same is true in this case. Here, the trial court found it “clear” that

“Appellant intentionally absented himself from his trial in this case….” TCO at

7 (emphasis omitted). The court stressed that Appellant “appeared in the

courtroom for trial. He left the courthouse without telling his attorney where

he was going and never returned.” Id. Additionally, the court noted that

“Appellant never returned for either day of the two[-]day trial.” Id. at 8. After

discussing Ms. Thomson’s testimony and Attorney Hone’s statement that he

had no information about where Appellant had gone, the court concluded that

“there was no abuse of discretion by this court in finding[,] by a

preponderance of the evidence[,] that Appellant was absent from his trial

without cause.” Id. at 9.

We discern no abuse of discretion by the court. Based on this record, it

is clear that Appellant had notice of the date and time of his trial, as he arrived

at the courthouse and spoke to his attorney. He then left the courthouse

without explanation, which is sufficient to demonstrate that he willfully

absented himself from the trial without cause. Although Appellant insists that

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the Commonwealth had a duty to “contact local hospitals or the morgue”

before the trial could proceed in his absence, we disagree. Appellant’s Brief

at 12. In support of his position, Appellant relies on Commonwealth v. King,

693 A.2d 220 (Pa. Super. 1997). There, King appeared in the courtroom for

his trial, but after the victim entered the courtroom, he abruptly left without

explanation and did not return. Id. at 222. “After contacting the area’s

hospitals and the morgue, the trial judge decided to proceed in [King’s]

absence.” Id. Notably, in concluding that the court did not abuse its

discretion on appeal, we made no mention of the fact that the

Commonwealth had contacted hospitals and the morgue. Instead, we stated:

It is clear that [King] was absent “without cause.” [King] concedes that he had notice of his trial date and that he was informed that he was required to appear for trial on that date. In addition, he concedes that he appeared for trial and that he voluntarily decided to flee the courtroom[,] which necessitated his trial and sentencing in absentia. Thus, by his actions, [King] has waived the right to challenge the proceedings and his sentence on the basis that it was imposed in his absence.

Id. at 222-23 (footnote omitted). Clearly, our holding in King was not

premised on the fact that the Commonwealth had contacted hospitals and

morgues before the trial court proceeded in King’s absence. Therefore, it does

not support Appellant’s contention that the Commonwealth was required to

take such steps in the instant case, where he appeared for trial and then

voluntarily decided to leave, causing his trial to proceed in his absence.

Finally, we address Appellant’s argument that “the trial court improperly

shifted the burden of proof regarding whether Appellant willfully absented

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himself from trial” from the Commonwealth onto Appellant. Appellant’s Brief

at 15. In support, Appellant points to the court’s remarks in response to the

Commonwealth’s request for Attorney Hone to testify. Namely, Appellant

seemingly takes issue with the court’s statement that “if [Appellant] had

stated a valid reason to leave, [Attorney] Hone would be certainly telling us

that by this point.” Id. (quoting N.T. Trial at 10-11). According to Appellant,

the court’s comments show that it “pointed to the fact that Appellant did not

present any evidence to explain his absence in support of its decision to

proceed with trial in absentia.” Id. at 16.

Appellant’s argument is meritless. It is clear from the record that the

trial court was simply explaining its decision to deny the Commonwealth’s

request to call Attorney Hone to the stand to testify about Appellant’s absence,

thereby implicating the attorney-client privilege. The court reasoned that if

Appellant had offered Attorney Hone a valid excuse for his absence, counsel

certainly would have revealed it by that point and, thus, there was no need

for counsel to testify. The court’s rationale did not improperly shift the burden

of proof to Appellant; instead, the court merely clarified the basis for its

decision to not allow Attorney Hone testify. No relief is due.

In sum, we discern no abuse of discretion in the court’s decision to try

Appellant in absentia. The Commonwealth presented evidence — namely, Ms.

Thomson’s testimony — to prove that Appellant had notice of the date and

time of trial. Namely, Ms. Thomson’s testimony demonstrated that Appellant

showed up at the courthouse on the day his trial was set to begin, spoke with

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his attorney, and then voluntarily left the building. Appellant offered no

explanation for his absence to his counsel or the court. Based on the caselaw

discussed supra, these facts were sufficient to prove, by a preponderance of

the evidence, that Appellant had proper notice of his trial, and intentionally

failed to appear without good cause. Therefore, he waived his right to be

present, and the court did not abuse its discretion in trying him in absentia.

See Foreman, 92 WDA 2023, unpublished memorandum at 7 (concluding

that the trial court did not abuse its discretion in trying Foreman in absentia

where the record confirmed he had notice of the trial, failed to appear, there

was no evidence to suggest he was not there involuntarily, and counsel

contacted him on the day of trial to no avail).

Judgment of sentence affirmed.

Date: 1/8/2026

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