J-S45006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
OTIS V. CAMPBELL :
:
Appellant : No. 2912 EDA 2015
Appeal from the Judgment of Sentence June 22, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010495-2011
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 20, 2017
Appellant, Otis V. Campbell, appeals pro se from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas,
following his bench trial convictions for possession of a controlled substance,
possession of a controlled substance with the intent to deliver (“PWID”), and
possession of a small amount of marijuana.1 We dismiss the appeal as
untimely.
The relevant facts and procedural history of this case are as follows.
On August 25, 2011, two SEPTA police officers observed Appellant smoking
on the platform of Logan Station on the Broad Street line. The officers
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1
35 P.S. § 780-113(a)(16), (30), (31).
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*Retired Senior Judge assigned to the Superior Court.
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approached Appellant because smoking is not permitted on the platform.
Officer Lombardo detected an odor of marijuana and noted Appellant’s right
hand was cupped. The officer asked Appellant to reveal the item in his
hand; Appellant revealed a brown cigarette, which the officer believed was
marijuana. Officer Shultz performed a search incident to arrest and
recovered a prescription pill bottle containing Xanax and Endocet, and wax
papers and baggies containing cocaine and heroin. At the police station,
police recovered additional packets of heroin and marijuana in Appellant’s
clothing and wallet.
On April 11, 2012, the court convicted Appellant of PWID, possession
of a controlled substance, and possession of a small amount of marijuana.
Appellant proceeded to a sentencing hearing on June 20, 2012, but he left
the hearing without permission. The court issued a bench warrant and
sentenced Appellant in absentia on June 22, 2012, to an aggregate term of
four to eight years’ imprisonment plus four years’ probation. On November
7, 2013, the court lifted the bench warrant after police apprehended
Appellant. Appellant appeared before the court and the court informed
Appellant of his sentence. Appellant did not pursue direct review at that
time.
On November 20, 2013, Appellant filed pro se his first petition under
the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. The
court appointed counsel, who filed a motion to withdraw and no-merit letter
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pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
The court issued notice of its intent to dismiss the petition without a hearing
per Pa.R.Crim.P. 907, on October 16, 2014. On November 17, 2014, the
court granted counsel’s request to withdraw and denied PCRA relief. On May
26, 2015, Appellant filed his second PCRA petition pro se. The court
dismissed the petition as untimely on August 11, 2015.
On September 9, 2015, Appellant filed a pro se notice of appeal from
his judgment of sentence entered June 22, 2012. Appellant attached a copy
of his sentencing order to the notice of appeal. On October 20, 2015, this
Court issued a rule to show cause why the appeal should not be dismissed
as untimely. Appellant responded on October 29, 2015. Appellant did not
explain why his appeal should be considered timely but cited Pa.R.A.P. 313,
Pa.R.A.P. 341, and Article V, § 9 of the Pennsylvania Constitution.
On December 23, 2015, Appellant filed a “motion to dismiss” in this
Court, challenging the validity of the search in this case. This Court denied
the motion on January 19, 2016, without prejudice for Appellant to raise his
claims in his appellate brief. On May 5, 2016, this Court discharged the rule
for the issue to be decided by the merits panel. On September 22, 2016,
following Appellant’s request to proceed pro se, the court held a hearing
pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998)
(holding court must determine on record that indigent defendant wants to
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proceed pro se, to ensure waiver of counsel is knowing, intelligent and
voluntary). The trial court granted Appellant’s request on October 20, 2016.
As a preliminary matter, we must address the timeliness of Appellant’s
appeal. Pennsylvania Rule of Appellate Procedure 903 provides:
Rule 903. Time for Appeal
(a) General rule. Except as otherwise prescribed by
this rule, the notice of appeal required by Rule 902
(manner of taking appeal) shall be filed within 30 days
after the entry of the order from which the appeal is taken.
Pa.R.A.P. 903(a). Time limitations for taking appeals are strictly construed
and cannot be extended as a matter of grace. Commonwealth v.
Valentine, 928 A.2d 346 (Pa.Super. 2007). This Court can raise the matter
sua sponte, as the issue is one of jurisdiction to entertain the appeal. Id.
This Court has no jurisdiction to entertain an untimely appeal.
Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super. 2007), appeal
denied, 599 Pa. 691, 960 A.2d 838 (2008). Generally, an appellate court
may not enlarge the time for filing a notice of appeal. Pa.R.A.P. 105(b).
Extension of the filing period is permitted only in extraordinary
circumstances, such as fraud or some breakdown in the court’s operation.
Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super. 1995), appeal
denied, 544 Pa. 622, 675 A.2d 1242 (1996).
Additionally, this Court has explained the impact of a defendant’s
fugitive status on his appellate rights:
Guaranteed by article 5, section 9 of the Pennsylvania
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Constitution, the constitutional right to appeal is a personal
right which may be relinquished only through a knowing,
voluntary and intelligent waiver. However, …a defendant
who is a fugitive from justice during the appellate process
may forfeit the right to appellate review.
Our Supreme Court has recognized that the right to appeal
is conditioned upon compliance with the procedures
established by the Pennsylvania Supreme Court, and a
defendant who deliberately chooses to bypass the orderly
procedures afforded one convicted of a crime for
challenging his conviction is bound by the consequences of
his decision. …
* * *
… In Commonwealth v. Deemer, 550 Pa. 290, 705 A.2d
827 (1997), the Supreme Court set forth the following
analysis to be employed by Pennsylvania courts in
determining a fugitive’s appeal rights:
If the defendant became a fugitive between post-
[sentence] 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 [296, 705 A.2d at 829] (emphasis added). …
On direct appeal, therefore, a defendant’s status during
the 30-day appeal period controls whether an appellate
court will hear his appeal. …
Commonwealth v. Doty, 997 A.2d 1184, 1186-88 (Pa.Super. 2010)
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(holding appellant forfeited right to direct appellate review where he was
fugitive throughout 30-day appeal period; appellant’s challenge to legality of
his sentence, while not waivable, was forfeited through his fugitive status
during time to file direct appeal; fact that appellant’s counsel filed notice of
appeal on appellant’s behalf during 30-day appeal period did not preserve
appellant’s appeal rights because he failed to return to court’s jurisdiction
before expiration of appeal period) (internal citations, quotation marks, and
footnote omitted).
Instantly, Appellant initially proceeded to a sentencing hearing on June
20, 2012, but he left the hearing without permission. The court issued a
bench warrant and sentenced Appellant in absentia on June 22, 2012, to an
aggregate term of four to eight years’ imprisonment plus four years’
probation. On November 7, 2013, the court lifted the bench warrant after
police apprehended Appellant. Appellant appeared before the court, and the
court informed Appellant of his sentence.
Appellant filed the current notice of appeal on September 9, 2015,
challenging his judgment of sentence more than three years after
sentencing.2 Thus, Appellant’s notice of appeal is grossly untimely. See
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2
Nothing in the record suggests Appellant is attempting to appeal the denial
of his second PCRA petition. In any event, Appellant’s second PCRA petition
was untimely with no exceptions to the PCRA time-bar pled or proven. See
42 Pa.C.S.A. § 9545(b) (providing PCRA timeliness requirements and narrow
exceptions to time-bar).
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Pa.R.A.P. 903(a). The record contains no extraordinary circumstances such
as a breakdown in the operations of the court to excuse the untimely filing.
See Braykovich, supra. Likewise, Pennsylvania Rules of Appellate
Procedure 313 and 341, cited in Appellant’s response to this Court’s rule to
show cause, provide no excuse for Appellant’s belated filing. See Pa.R.A.P.
313 (discussing collateral orders); Pa.R.A.P. 341 (discussing final orders).
Appellant’s reliance on Article V, Section 9 of the Pennsylvania Constitution
is similarly misplaced, as that constitutional provision provides the right of
appeal but does not enlarge the time for filing an appeal. See Pa. Const.
Art. V, § 9 (stating there shall be right of appeal in all cases from court of
record to appellate court). Moreover, Appellant forfeited his right to direct
appeal when he absconded during the thirty-day appeal period, and did not
return to the court’s jurisdiction until after the appeal period had elapsed.
See Deemer, supra; Doty, supra. Appellant’s failure to file his notice of
appeal in a timely manner divested this Court of jurisdiction to review it. In
any event, Appellant forfeited his right to a direct appeal from his judgment
of sentence because he was a fugitive during the full thirty-day appeal
period. See id.; Patterson, supra. Accordingly, we dismiss this appeal as
untimely.
Appeal dismissed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2017
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