Com. v. Weimer, D.

• Court: Superior Court of Pennsylvania
• Decided: March 10, 2020
• Docket: 767 WDA 2019
• Status: Unpublished

Opinion

J-S75021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL L. WEIMER : : Appellant : No. 767 WDA 2019

Appeal from the Judgment of Sentence Entered April 25, 2019, in the Court of Common Pleas of Bedford County, Criminal Division at No(s): CP-05-SA-0000083-2018.

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 10, 2020

Daniel L. Weimer appeals from the judgment of sentence imposed

following his conviction of certain violations of the Vehicle Code, including

operating privileges suspended or revoked, general lighting requirements, and

restraint systems.1 We quash the appeal.

The relevant facts are as follows. On the evening of March 7, 2018,

Trooper Matthew David Long was patrolling Highway 26 in Bedford County,

Pennsylvania when he came upon a vehicle that was pulling a horse trailer

with no functioning taillights. Trooper Long followed the vehicle until it

reached a safe location, and then initiated a traffic stop. Trooper Long

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 1543, 4303, 4581. J-S75021-19

approached the vehicle and noticed that Weimer, the driver, was not wearing

his seatbelt. Trooper Long then asked Weimer for his driver’s license,

registration, and insurance information. Weimer indicated that he was unable

to provide any of these documents. Weimer did, however, provide Trooper

Long with his full name and date of birth. Trooper Long ran Weimer’s personal

information through the police database, and discovered that Weimer’s

driver’s license was suspended.

Weimer was charged with driving while operating privileges suspended

or revoked, general lighting requirements, and restraint systems. A non-jury

trial was scheduled for April 25, 2019. Weimer did not appear for trial. The

trial was therefore held in abstentia, and the trial court found Weimer guilty

of all three offenses. Because Weimer had at least six prior convictions for

driving while operating privilege suspended or revoked, the trial court

sentenced him to thirty days of incarceration, and a fine of one thousand

dollars.2 The trial court then issued a bench warrant for Weimer’s arrest.

Weimer’s counsel filed a timely notice of appeal, and both Weimer’s

counsel and the court complied with Pa.R.A.P. 1925. Significantly, at the time

the trial court issued its Rule 1925(a) opinion on July 24, 2019, Weimer

2 Pursuant to 75 Pa.C.S.A. § 6503(a.1), “[a] person convicted of a sixth or subsequent offense under section 1543(a) shall be sentenced to pay a fine of not less than $1,000 and to imprisonment for not less than 30 days but not more than six months.”

-2- J-S75021-19

remained a fugitive, and the bench warrant was still outstanding. Trial Court

Opinion, 7/24/2019, at 1.

Weimer raises the following issue for our review:

Whether the evidence was insufficient to sustain the conviction for 75 Pa.C.S.A. § 1543(a), as [Weimer] required no driver’s license to operate the vehicle pursuant to 75 Pa.C.S.A. § 1502(5) because the vehicle [Weimer] was driving was registered as an implement of husbandry, which did not require the operator thereof to have a valid driver’s license?”

Weimer’s Brief at 5.3

Prior to analyzing the merits of Weimer’s claim, we must first determine

whether he forfeited his right to appeal his conviction due to his status as a

fugitive throughout the appeal period.

Our Supreme Court has acknowledged that the right to appeal is

guaranteed by Article 5, section 9 of the Pennsylvania Constitution.

Commonwealth v. Passaro, 476 A.2d 346, 348 (Pa. 1984). This

constitutional right to appellate review is a personal right that can only be

relinquished through a knowing, voluntary, and intelligent waiver. Id.

“Nevertheless, the right to appeal is conditioned upon compliance with the

procedures established by [the Supreme Court], and a defendant who

deliberately chooses to bypass the orderly procedures afforded one convicted

3 Pursuant to 75 Pa.C.S.A. § 1502(5), persons 14 years of age or older operating an implement of husbandry are not required to obtain a driver’s license.

-3- J-S75021-19

of a crime for challenging his conviction is bound by the consequences of his

decision.” Id. (citations omitted).

Our Supreme Court has also set forth guidelines to determine when

fugitives forfeit their appellate rights:

[A] fugitive who has returned to the jurisdiction of the court should be allowed to exercise his post-trial rights in the same manner he would have done had he not become a fugitive. If he returns in time for post-trial motions, he should be allowed to file them. If he returns after the time for post-trial motions has expired, his request to file post-trial motions or to reinstate post-trial motions should be denied. If he 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.

Commonwealth v. Deemer, 705 A.2d 827, 829 (Pa. 1997) (emphasis

added). Accordingly, a defendant’s status during the thirty-day appeal period

controls whether this Court will consider his appeal. Commonwealth v.

Doty, 997 A.2d 1184, 1188 (Pa. Super. 2010).

In this case, the trial court sentenced Weimer in abstentia on April 25,

2019. Therefore, Weimer’s appeal period elapsed on May 28, 2019.4 Weimer

4The thirty-day period elapsed on Saturday, May 25, 2019, and the following Monday was a court holiday (Memorial Day). Therefore, Weimer had until Tuesday, May 28, 2019, in which to file his appeal. See 1 Pa.C.S.A. § 1908

-4- J-S75021-19

remained a fugitive throughout the entire time he had for filing an appeal.

Indeed, as of July 24, 2019, nearly two months after Weimer’s appeal period

elapsed, Weimer remained a fugitive, and the warrant for his arrest was still

outstanding.

The fact that Weimer’s counsel filed this appeal during the thirty-day

appeal period is of no moment. In order to retain his appellate rights, Weimer

needed to return to the court’s jurisdiction before the appeal period elapsed.

See Deemer, 705 A.2d at 829 (holding that a fugitive who returns to the

court’s jurisdiction before the appeal deadline has passed retains the right to

appellate review, but a fugitive who returns after the appeal deadline has

passed may not file an appeal).

Because Weimer remained a fugitive throughout the entirety of the

appeal period, he forfeited his right to appellate review of his judgment of

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

(holding that a defendant who remains a fugitive from the time of sentencing

until after the appeal deadline has passed forfeits the right to appellate

review). As Weimer forfeited his right to appellate review of his claim, we

quash his appeal.

Appeal quashed.

(providing that “[w]henever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation”).

-5- J-S75021-19

Judge Pellegrini joins the memorandum.

Judge Stabile concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/10/2020

-6-