Com. v. Yates, D.

• Court: Superior Court of Pennsylvania
• Decided: April 4, 2023
• Docket: 1108 MDA 2022
• Status: Unpublished

Opinion

J-S02041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DWAYNE HAYWOOD YATES : : Appellant : No. 1108 MDA 2022

Appeal from the Judgment of Sentence Entered December 14, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001334-2020

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

JUDGMENT ORDER BY DUBOW, J.: FILED: APRIL 4, 2023

Appellant, Dwayne Haywood Yates, appeals from the judgment of

sentence entered on December 14, 2021.1 After careful review, we determine

that Appellant’s appeal, which he filed on August 8, 2022, is untimely, and we

are constrained to quash it.

On December 9, 2021, the Commonwealth prosecuted Appellant at a

jury trial for Persons Not to Possess a Firearm.2 Appellant, however, failed to ____________________________________________

1 Appellant purported to appeal “from the judgment[s] of sentence entered on December 14, 2021, and March 31, 2022, and the [April 8, 2022] order denying post-sentence motion[s].” Notice of Appeal, 8/8/22 (some capitalization omitted). Appellant’s issues, however, relate solely to the judgment of sentence entered on December 14, 2021. We have corrected the caption accordingly.

2 18 Pa.C.S. § 6105(a)(1). The Commonwealth had charged Appellant with additional crimes but, before trial, the court severed the firearm possession charge from the other charges. The December 9, 2021 trial and subsequent (Footnote Continued Next Page) J-S02041-23

appear for trial. The court found that Appellant’s absence was voluntary and,

as a result, the court held Appellant’s trial in absentia.3 At the conclusion of

trial, the jury convicted Appellant of Persons not to Possess a Firearm.

On December 14, 2021, the court held a sentencing hearing at which

Appellant again voluntarily failed to appear.4 As a result, the court proceeded

to sentence Appellant in absentia and imposed a term of 7 to 14 years’

incarceration. The court entered the sentencing order on December 21, 2021.

At some point between December 14, 2021, and March 16, 2022,

Appellant returned to the Commonwealth’s custody.5 On March 16, 2022,

Appellant filed an untimely post-sentence motion from the December 14, 2021

judgment of sentence.6

____________________________________________

December 14, 2021 judgment of sentence related solely to the firearm possession charge. The other charges, addressed in March 2022, resulted in a separate sentence that the court ordered to run concurrently with the sentence imposed on December 14, 2021.

3 See N.T. Trial, 12/9/21, at 4-5.

4 See N.T. Sentencing, 12/14/21, at 2-4.

5It is not clear from the record whether Appellant was captured or returned voluntarily.

6 A defendant has 10 days after imposition of sentence to file a post-sentence motion. Pa.R.Crim.P. 720(A)(1). Upon return from fugitive status, an absconder “take[s] the system of criminal justice as he finds it upon his return[.]” Commonwealth v. Deemer, 705 A.2d 827, 829 (Pa. 1997). Appellant’s fugitive status, thus, did not serve to extend his time to file a post- sentence motion or notice of appeal. See id.

-2- J-S02041-23

On August 8, 2022, Appellant filed a Notice of Appeal. Appellant

challenges the weight and sufficiency of the evidence underlying his December

9, 2021 conviction for Persons not to Possess a Firearm. Appellant’s Br. at 4.

Before we can address the merits of Appellant’s issues, we must address

our jurisdiction over this appeal, which we may raise sua sponte.

Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014). Where, as

here, an appellant does not file a timely post-sentence motion, “the judgment

of sentence constitutes a final and appealable order for purposes of appellate

review and any appeal therefrom must be filed within [30] days of the

imposition of sentence.” Commonwealth v. Borrero, 629 A.2d 158, 159 (Pa.

Super. 1997). See Pa.R.Crim.P. 720(a)(3); Pa.R.A.P. 903(a).

In this case, the court sentenced Appellant on December 14, 2021.

Because Appellant did not file a timely post-sentence motion, his appeal period

expired 30 days later, in January 2022. Appellant’s appeal in the instant case,

filed August 8, 2022, is thus patently untimely. As a result, we are without

jurisdiction to address this appeal and we must quash it.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/4/2023

-3-