Com. v. Moore, M.

• Court: Superior Court of Pennsylvania
• Decided: January 30, 2019
• Docket: 1421 EDA 2016
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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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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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