[J-65-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 36 EAP 2017
:
Appellee : Appeal from the Order of Superior
: Court entered on April 27, 2017 at No.
: 657 EDA 2015 affirming the Judgment
v. : of Sentence entered on January 30,
: 2015 in the Court of Common Pleas
: of Philadelphia County, Criminal
FRANK ADAMS, : Division, at No. CP-51-CR-0006821-
: 2012.
Appellant :
: ARGUED: September 26, 2018
OPINION
JUSTICE TODD DECIDED: January 23, 2019
In this appeal by allowance, we consider whether a defendant’s fugitive status
during the period for filing a notice of appeal – where his attorney filed a timely notice of
appeal on his behalf and he later returned after the appeal period ended, but prior to the
deadline for filing an appellate brief – results in the defendant forfeiting his right to appeal.
For the reasons explained below, we affirm the order of the Superior Court which found
a defendant fugitive’s right to appeal to be forfeited in these circumstances.
On May 20, 2012, Appellant Frank Adams and his brother, Nicky Adams, were
involved in an altercation with another man outside a Philadelphia church; the altercation
was eventually broken up by members of the church. The victim went to his car, and was
about to leave the scene for home, when Appellant went to his own vehicle, pulled out a
tire iron, handed the weapon to his brother, and directed him to strike the victim.
Appellant’s brother proceeded to the victim’s vehicle, and, as the victim leaned out the
window to protect his infant nephew who was inside the automobile, Appellant’s brother
swung the tire iron like a bat against the victim’s head, causing a laceration of his scalp.
Appellant was arrested and charged with, inter alia, aggravated assault, conspiracy, and
recklessly endangering another person.
Appellant was released on bail, but he and his brother failed to appear for his
January 9, 2013 trial date in the Philadelphia County Court of Common Pleas. Over nine
months later, after having fled to California, Appellant and his brother were brought before
the trial judge, who held them in contempt, sentenced them to two weeks imprisonment
for that offense, and stressed to them the importance of their obligation to appear for court
dates. Appellant and his brother were again released on bail. A trial date was set. This
date was critical, as the principal witnesses against Appellant and his brother were to
move to Florida within days of the trial. The brothers appeared for court that morning,
but, thereafter, left without authorization. While Appellant claimed that his brother had
experienced chest pains, there was no corroboration of this exigency, and Appellant
ignored his attorney’s instructions to return to court. The trial judge deemed Appellant to
be willfully absent.
The trial proceeded in absentia, and, after four days of hearing, Appellant was
convicted of various crimes.1 Thereafter, when Appellant failed to appear for his
sentencing hearing, he was sentenced, in absentia, to a term of 10 to 20 years
incarceration. Appellant remained a fugitive throughout the time for seeking appellate
review; however, on March 16, 2016, his attorney filed a notice of appeal within the appeal
period on Appellant’s behalf, and the trial court directed him to file a Pa.R.A.P. 1925(b)
1 Appellant was convicted of aggravated assault, 18 Pa.C.S. § 2701(a)(1); simple assault,
id. § 2702(a)(1); recklessly endangering another person, id. § 2705; and two counts of
conspiracy (aggravated assault and simple assault), id. § 903.
[J-65-2018] - 2
statement. Appellant’s attorney raised several assertions of error, including a challenge
to the legality of the sentence. The trial court rejected the claims, reasoning that
Appellant’s fugitive status caused him to forfeit all issues on appeal. Given that Appellant
failed to appear for the entirety of his trial as well as his sentencing hearing, and given
that he was a fugitive during the entire 30-day appeal period, the trial court found it of no
consequence that Appellant’s counsel had filed a notice of appeal during the appeal
period.
After the 30-day appeal period had expired, but prior to the deadline for the filing
of Appellant’s brief, Appellant was rearrested and returned to custody. Appellant filed an
appellate brief, arguing, inter alia, that his fugitive status should not cause him to forfeit
his right to appeal. Appellant stressed that his absence had not frustrated the appellate
process, and he reasserted his substantive claims, including his challenge to the legality
of his sentence.
On appeal, a three-judge panel of the Superior Court affirmed in a unanimous,
unpublished memorandum opinion authored by Judge Paula Francisco Ott.
Commonwealth v. Adams, 657 EDA 2015 (Pa. Super. filed Apr. 27, 2017). The court
reviewed various decisions, beginning with this Court’s decision in Commonwealth v.
Passaro, 476 A.2d 346 (Pa. 1984), in which we found that the “fugitive forfeiture rule”
manifests, inter alia, the belief that a defendant who decides to bypass orderly criminal
procedures should not be permitted to seek relief under those procedures, and is bound
by the consequences of his or her decision.2 The court then cited this Court’s more recent
recitation of the essential standard for whether, and under what circumstances, the
fugitive forfeiture rule applies in Commonwealth v. Deemer, 705 A.2d 827 (Pa. 1997), in
2 Various courts and scholarship have also referred to the “fugitive forfeiture rule” as the
“fugitive disentitlement doctrine,” the “fugitive dismissal rule,” and the “fugitivity-as-
forfeiture rule.”
[J-65-2018] - 3
which we explained that 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 829.
Finally, the Superior Court relied upon its own decision in Commonwealth v. Doty,
997 A.2d 1184 (Pa. Super. 2010), in which the court summarized this Court’s prior case
law, and offered that, “[o]n direct appeal, therefore, a defendant’s status during the 30-
day appeal period controls whether an appellate court will hear his appeal.” Id. at 1188.
The Superior Court emphasized the Doty court’s conclusion that, although defendant’s
counsel filed a notice of appeal while the defendant remained a fugitive during the 30-day
appeal period, it was of no moment, and counsel could not preserve the defendant’s
appellate rights because he failed to return to the court’s jurisdiction prior to the expiration
of the appeal period. Id. at 1189.
Thus, applying both our Court’s prior pronouncements, and Superior Court
precedent in virtually identical circumstances to the instant case, the court found
Appellant’s fugitivity during the period for filing a notice of appeal, regardless of his
attorney’s filing of a notice of appeal on his behalf or his subsequent return to custody,
resulted in a forfeiture of his right to appeal. We granted allocatur to address this
conclusion.3
3 The issue, as set forth by Appellant, in our order granting Appellant’s petition for
allowance of appeal, stated:
Was it not error for the Superior Court automatically to dismiss
petitioner’s appeal without merits review when this Court’s
consistent jurisprudence allows exceptions to a forfeiture
determination and petitioner’s circumstances track those
exceptions?
Commonwealth v. Adams, 239 EAL 2017 (filed November 20, 2017) (order).
[J-65-2018] - 4
Before us, Appellant argues that, under Pennsylvania law, there is no automatic
dismissal rule for litigants who are fugitives during part of the appellate process, but who
return without disruption of the course of the appeal. Appellant offers essentially two
arguments. First, Appellant maintains that his fugitivity did not forfeit his right to appeal
because, pursuant to Deemer, a returned fugitive is entitled to take the criminal justice
system as he finds it. According to Appellant, no extraordinary measures were required
to hear his appeal, because, although he was absent during the 30-day appeal period,
his counsel had timely filed a notice of appeal. Indeed, “[t]he appeal continued on the
normal track toward decision with no interruption.” Appellant’s Brief at 14. Appellant
criticizes the Superior Court in Doty for interpreting Deemer as requiring forfeiture
notwithstanding counsel’s actions, and for focusing solely on the fugitive’s status during
the 30-day appeal period. Appellant avers that Doty’s erroneous holding is more
consistent with the now-abrogated per se forfeiture holding in Commonwealth v. Jones,
610 A.2d 439 (Pa. 1992), than this Court’s more recent decision in Deemer. Appellant
further emphasizes that the fugitive forfeiture rule aims to prevent disruption to the
appellate process and ensure that the appellate court’s judgment can be effectively
enforced, and contends both goals are met here, without sacrificing his appellate rights.
In so arguing, Appellant stresses the harshness of his sentence, his forfeiture of his
constitutional right to be present at his trial, to consult with counsel, and to confront
witnesses, the negative impact upon the jury of his absence, the flight-as-consciousness-
of-guilt instruction, and the forfeiture of bail monies, and urges that fundamental fairness
does not warrant the additional forfeiture of his appellate rights.
In his second argument, Appellant asserts that, unlike the United States
Constitution, the Pennsylvania Constitution includes the fundamental guarantee to a
criminal defendant of the right to appeal his conviction. Pa. Const. art. V, § 9. According
[J-65-2018] - 5
to Appellant, only where a defendant makes a knowing, voluntary, and intelligent
relinquishment of his fundamental right to appeal should such a right be denied. Appellant
avers that he made no such relinquishment of his right to appeal, should not be deprived
of it by means of “an excessive application of forfeiture principles,” and that the fugitive
forfeiture rule should have only narrow application. Appellant’s Brief at 22-23. Thus,
Appellant submits that the law in this area should be aligned with the fundamental right
to appeal and that no appeal should be dismissed where the defendant has returned to
custody in time for the appellate process to proceed. Appellant contends, pointing to out-
of-state cases, that any other application of the rule is punitive and unjustified in light of
the existence of other sanctions for absconding.4 Finally, Appellant urges that appellate
review is worthy of special protection regardless of whether a defendant has fled, since
review may be the only remedy available to correct serious error and ensure justice for a
criminal defendant, and merits review should not be prohibited, at least in cases of
fundamental error.
Preliminarily, the Commonwealth submits that Appellant “faces a predicament of
his own creation,” and emphasizes that, after having been sanctioned for his flight on a
prior occasion, Appellant absconded again, absenting himself from his trial, conviction,
and sentencing. Commonwealth’s Brief at 10. After noting the foundations for the fugitive
forfeiture rule, the Commonwealth offers that, after various iterations of the rule were
espoused by our Court, leading to some confusion, in Deemer, the Court sought to
provide clearer guidance. Indeed, the Commonwealth submits that, unlike Appellant’s
4 The Pennsylvania Association of Criminal Defense Lawyers (“PACDL”) filed an amicus
brief in support of Appellant, largely reasserting his arguments. The PACDL also asserts
that the above-detailed decisional law is largely irreconcilable, urging this Court to
reconsider the issue ab initio. The PACDL also advocates that this Court should abandon
the rule entirely, and allow a fugitive’s counsel to litigate an appeal in absentia, at least in
the absence of prejudice.
[J-65-2018] - 6
interpretation of Deemer, under which a court must adjudicate a fugitive’s claim no matter
how long he remains at large so long as he returns prior to a dismissal of his appeal,
Deemer is straightforward: a defendant’s fugitive status forfeits all rights during the period
of fugitivity. Here, the Commonwealth notes, Appellant did not return until over 10 months
after the time for filing an appeal had expired, and, thus, it contends the Superior Court
properly dismissed his appeal on that basis. More specifically, the Commonwealth
proffers that Deemer focused on the defendant’s conduct, not counsel’s, which is only
appropriate as it is for the accused, and not counsel, to decide whether to appeal.
According to the Commonwealth, Appellant’s interpretation would lead to absurd and
disparate results, such as some attorneys filing notices of appeal sua sponte and others
forgoing such action in the absence of direction from his client.
The Commonwealth argues that the result here is particularly deserved, as not
only did Appellant initially flee to California, after his trial was rescheduled days before
the primary prosecution witnesses had arranged to move to Florida, Appellant absconded
again. Thus, Appellant was not only a fugitive, but a recidivist fugitive. The
Commonwealth points out that Appellant’s unlawful flight also directly impacted the
appellate process as the trial judge declined to address any substantive issues, in light of
Appellant’s fugitive status, posing an impediment to meaningful appellate review. Further,
the Commonwealth offers that, while prejudice to the Commonwealth could be reasonably
presumed, if it had to be proven, it would require the expenditure of resources to monitor
and re-interview witnesses, which would lead to factual disputes as to the delay
attributable to Appellant’s fugitive status, necessitating a remand to the trial court for a
hearing on the issue of prejudice.
The Commonwealth counters Appellant’s arguments, maintaining that, first,
because Appellant’s primary claim is that he received an illegal sentence, he has a
[J-65-2018] - 7
remedy through the filing of a petition pursuant to the Post Conviction Relief Act, a
contention refuted by Appellant. The Commonwealth also notes that, although
Appellant’s claim relies heavily on the existence of a state constitutional right to appeal,
this Court has long held that that right is conditioned upon compliance with the procedures
for effectuating it. Moreover, according to the Commonwealth, Appellant’s claim that the
consequences of fugitive status were unknown and that his absconding would not impact
his ability to appeal is undercut by the presumption that persons know the law, and the
common sense concept that there are consequences for absconding. Further, the
Commonwealth submits that, while Appellant claims that he has been punished in other
ways for his flight apart from the fugitive forfeiture rule, such consequences followed his
voluntary actions. It notes that, had Appellant returned within 30 days after his
sentencing, he could have pursued his appeal, but he chose to remain at large until
apprehended months later. Indeed, the Commonwealth explains that, at its heart,
Appellant’s argument challenges any limitations on appellate review. Finally, the
Commonwealth argues that PACDL’s contention that the fugitive forfeiture rule should be
abandoned has been rejected by nearly every state and federal court, and notes that,
unlike a trial in absentia, which is necessary for a final judgment, appeals are optional.
Our analysis begins by way of a brief background. The fugitive forfeiture rule
began in the late 19th century as an equitable doctrine of criminal appellate procedure to
be applied at the discretion of the appellate court. Traditionally, a convicted criminal
defendant who fled from justice while his appeal was pending was “disentitled” from
pursuing a criminal appeal. The rule was originally developed by the United States
Supreme Court in Smith v. United States, 94 U.S. 97 (1897), wherein the Court dismissed
the appeal of a convicted criminal who became a fugitive during the pendency of his
appeal. In early opinions, the Supreme Court applied the rule out of concern that a
[J-65-2018] - 8
judgment adverse to the fugitive would not be enforceable against him. Id. at 97-98. The
Court also concluded it was unfair that a fugitive could receive the benefits of a favorable
adjudication of his appeal, but could avoid the consequences of an adverse adjudication.
Id. at 97. In subsequent decisions, the Supreme Court offered additional rationales for
the doctrine, including that disentitlement serves an important deterrent function and that
it promotes an efficient and dignified appellate process. Molinaro v. New Jersey, 396
U.S. 365, 366 (1970) (per curiam) (determining that the fugitive waived his rights under
the justice system and thus was “disentitle[d]” to his normal rights); see also Estelle v.
Dorrough, 420 U.S. 534, 537 (1975) (pointing to efficient operation of the courts to justify
dismissal of appeal); Ortega-Rodriguez v. United States, 507 U.S. 234, 246 (1993)
(highlighting need to protect dignity of appellate courts). Courts have since refined the
rule, and it currently is invoked in both criminal and civil contexts. Broadly speaking, the
rule provides that the fugitive from justice may not seek relief from the judicial system
whose authority he or she evades. Indeed, “[d]isposition by dismissal of pending appeals
of escaped prisoners is a longstanding and established principle of American law.”
Estelle, 420 U.S. at 537.
Over the last half century, Pennsylvania’s experience with the fugitive forfeiture
rule has varied in nature and scope. As far back as 1975, in Commonwealth v. Galloway,
333 A.2d 741 (Pa. 1975), this Court aligned its analysis with that of the United States
Supreme Court, focusing on ensuring jurisdictional enforcement of a judgment.
Specifically, in that decision, Galloway absconded before his capital appeal was listed for
argument. This Court granted a general continuance pending his return to custody, which
later occurred. The Commonwealth sought dismissal, but this Court denied relief,
focusing on the fugitive forfeiture rule’s purpose of ensuring that the appellate court’s
[J-65-2018] - 9
judgment can be effectively enforced, and noting that Galloway’s return to custody
allowed that enforcement.
Ten years later, and concurrently with the reinvigoration of the enforcement of state
constitutional rights, in Passaro, supra, the Court’s focus changed to the constitutional
right of appeal. In that case, Passaro absconded before his appeal was listed for
argument. The Commonwealth sought dismissal, and the Superior Court granted relief.
Passaro later returned to custody and sought reinstatement of his right to appeal, but the
Superior Court denied such relief. On appeal, our Court explained that, although a litigant
has a state constitutional right to appeal, it is conditioned on compliance with the
procedures to effectuate the right. The Court then reiterated Galloway’s focus on the
fugitive forfeiture rule’s purpose of ensuring that the appellate court’s judgment can be
effectively enforced, but noted that it also ensures that a defendant who decides to bypass
orderly criminal procedures is not permitted to seek relief under those procedures.
Accordingly, the Court found that Passaro’s fugitive status not only warranted the initial
dismissal of his appeal, but also precluded reinstatement of his right to appeal.
The Court rendered a series of decisions in the mid-1990’s reconsidering the
scope of the fugitive forfeiture rule, engendering a period of uncertainty in this area of the
law. Beginning with our 1992 decision in Jones, supra, the Court took an absolutist
approach, denying appellate review. Specifically, Jones absconded before trial but
counsel filed an appeal on his behalf, and Jones returned during the pendency of the
appeal. The Superior Court quashed his appeal, and Jones appealed to this Court. The
Jones Court echoed the teachings of its prior decisions that, although a litigant has a state
constitutional right to appeal, it is conditioned on compliance with the procedures which
effectuate that right, and that the fugitive forfeiture rule manifests the idea that a defendant
who exits himself from orderly criminal procedures should not benefit from those
[J-65-2018] - 10
procedures. Reviewing Passaro and other similar decisions, the Court held that fugitivity
“at any time after post-trial proceedings commence” “acts as a per se forfeiture of [the]
right of appeal” which is “irrevocable and continues despite the defendant’s capture or
voluntary return to custody.” Jones, 610 A.2d at 441. Accordingly, the Court held that,
due to Jones’ fugitive status, he forfeited his right to appeal.
Two subsequent decisions, rendered only three years after Jones, brought the
Jones Court’s per se approach into question. In In the Interest of J.J., 656 A.2d 1355
(Pa. 1995) (plurality), J.J. was adjudicated delinquent and filed an appeal, but absconded.
The Commonwealth filed an application to dismiss, and J.J. returned to custody before
the disposition of the application. Nevertheless, the Superior Court granted the
application. J.J. appealed, and our Court, in a plurality decision, vacated and remanded
for further proceedings. The plurality opined that courts have discretion to determine
whether fugitivity warrants forfeiture, and, because the Superior Court’s per curiam order
did not indicate whether it was aware of its discretion, the matter should be remanded. A
concurrence opined that the plurality’s view that courts have discretion to determine
whether fugitivity warrants forfeiture essentially overruled Jones sub silentio, and without
justification. Nevertheless, the concurrence opined that the fugitive forfeiture rule should
not be rotely applied in juvenile delinquency proceedings, particularly in light of their focus
on juveniles’ best interests. See also Commonwealth v. Huff, 658 A.2d 1340 (Pa. 1995)
(plurality) (same).
The foreshadowing by J.J. and Huff was borne out a mere two years later, in the
Court’s seminal 1997 decision in Deemer, wherein Justice John Flaherty writing for the
Court attempted to bring clarity to the fugitive forfeiture rule, striking a compromise
approach. In that matter, Deemer fled before trial, and his counsel filed post-trial motions
on his behalf, which the trial court dismissed on the basis of Deemer’s fugitive status.
[J-65-2018] - 11
Deemer later returned to custody and filed a pro se motion to reinstate his right to file
post-trial motions. The trial court denied relief, indicating that, although it was aware it
had discretion to grant relief, Deemer’s absconding without justification warranted
forfeiture of his right to file post-trial motions. The Superior Court affirmed.
After reviewing the above precedent giving rise to Jones, as well as the
subsequent decisions undermining Jones’ continuing vitality, this Court ultimately
rejected Jones’ harsh approach, ruling that a fugitive forfeits rights that lapse during the
period of fugitivity, but that a fugitive who returns to custody may exercise rights that have
not yet lapsed:
The difficulty with Jones is that it sets up an absolute rule of
forfeiture of appellate rights. Returned fugitives should be
punished, if appropriate, for violations of court orders or
statutes which compel their presence in court, but they should
not be punished additionally by forfeiture of their appellate
rights. On the other hand, a returned fugitive should not
benefit from his fugitive status. Courts should not take
extraordinary measures, such as granting motions to reinstate
post trial motions or requests to appeal nunc pro tunc, in order
to accommodate fugitives who have now returned and wish to
pursue post-trial measures. Rather, 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
[J-65-2018] - 12
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.
Deemer, 705 A.2d at 829 (emphasis added). Thus, the Deemer Court not only rejected
Jones’ per se approach, but created an easily-applied and straight-forward standard by
which to determine the appellate rights of the fugitive. In sum, Deemer held that a fugitive
forfeits all rights that expire during his fugitivity, but that, upon return, a fugitive may still
exercise rights that have not expired. Applying its newly-minted standard, the Court found
that, as Deemer had absconded from the jurisdiction and had not returned within the time
allowed for post-trial motions, the lower tribunals were correct in denying his motion to
reinstate his post-trial motions.
Acknowledging this decisional background, Appellant places great emphasis on
our Constitution, which, unlike the federal Constitution, guarantees the right to appeal.
Article V, § 9 of the Pennsylvania Constitution, Right of Appeal, provides:
There shall be a right of appeal in all cases to a court of record
from a court not of record; and there shall also be a right of
appeal from a court of record or from an administrative agency
to a court of record or to an appellate court, the selection of
such court to be as provided by law; and there shall be such
other rights of appeal as may be provided by law.
Pa. Const. art. V, § 9. The primary thrust of Appellant’s argument is that the constitutional
nature of the right requires a reworking or rejection of, the Deemer standard.
While the right to appeal is unquestionably a significant right, nevertheless, our
Constitution only guarantees our citizens be afforded the opportunity to exercise such
right: “[T]he right to appeal is conditioned upon compliance with the procedures
established by this 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.” Passaro, 476 A.2d at 348. The judiciary has created
[J-65-2018] - 13
procedures and rules to allow the orderly functioning of a system of adjudication for
determining individual rights and to effect justice. Those who flout their day in court, and
who voluntarily, willfully, and purposefully flee from a court’s jurisdiction, are acting in
contravention of their constitutional rights and the very system set up to vindicate such
rights.
Even accepting a greater focus upon a fugitive’s constitutional right of appeal, we
continue to find that the Deemer standard strikes the appropriate balance between
upholding the right of appeal guaranteed by our Constitution and ensuring the integrity of
the court system designed to guarantee those rights. Appellant ignores several of the
stated purposes of the fugitive forfeiture rule which this Court recognized as early as
Passaro, and which plainly apply in his case. The fugitive forfeiture rule does not merely
serve to ensure the orderly operation of the appellate process and ensure that the
appellate court’s judgment can be enforced; it also deters a defendant’s flight or escape,
encourages self-surrender as soon as possible, and furthers efficiencies in, and promotes
the dignity of, appellate courts.5
Indeed, context is critically important when addressing constitutional rights; here,
it is Appellant who has eschewed his right to appeal, and, by absconding, has flagrantly
and deliberately bypassed the entire judicial process. Related thereto, in contending that
his right to appeal may be relinquished only through a knowing, voluntary, and intelligent
waiver, Appellant fails to acknowledge the critical distinction between waiver and
forfeiture. As we explained in Commonwealth v. Lucarelli, 971 A.2d 1173 (Pa. 2009),
5 Indeed, it is for this same reason that we eschew the approach of the few sister courts
which have allowed appeals in these instances under their state constitutions, for failing
to recognize the countervailing interest of the integrity and dignity of judicial appellate
review. See, e.g., State v. Tuttle, 713 P.2d 703 (Utah 1985); Mascarenas v. State, 612
P.2d 1317 (N.M. 1980).
[J-65-2018] - 14
waiver connotes a voluntary relinquishment of a right, while forfeiture results from
egregious conduct:
[W]e find persuasive the distinction between waiver and
forfeiture made by the Third Circuit Court of Appeals in United
States v. Goldberg, 67 F.3d 1092, 1099-1101 (3d Cir. 1995).
Waiver is “an intentional and voluntary relinquishment of a
known right.” Id. at 1099. By contrast, forfeiture, as defined
by the Third Circuit, does not require that the defendant intend
to relinquish a right, but rather may be the result of the
defendant's “extremely serious misconduct” or “extremely
dilatory conduct.” United States v. Thomas, 357 F.3d 357,
362 (3d Cir. 2004) (quoting Goldberg, supra at 1100-02).
Lucarelli, 971 A.2d at 1179.
Indeed, unlike waiver, “which requires a knowing and intentional relinquishment of
a known right, forfeiture results in the loss of a right regardless of the defendant's
knowledge thereof and irrespective of whether the defendant intended to relinquish the
right.” Goldberg, 67 F.3d at 1100. Thus, we reject Appellant’s attempts to assert his
constitutional right to appeal in a vacuum, and emphasize that it is Appellant’s own
wrongdoing which has disrupted the judicial system created to vindicate his rights, leading
to their forfeiture.
That Appellant’s counsel filed a notice of appeal while Appellant was a fugitive is
of no moment, as not only has the focus of our prior decisions been on a defendant’s
impact on the court system, but there are serious questions regarding the ability of an
attorney to pursue an appeal without his client’s knowledge and approval. See Doty, 997
A.2d at 1189. The decision to appeal is personal to the defendant and entirely
discretionary. Moreover, if Deemer is to have any meaning, wherein post-trial motions
were filed in Deemer’s absence but we nonetheless found he forfeited his right to file such
motions, the fugitive forfeiture rule must apply whether or not, as herein, counsel takes
an appeal on his client’s behalf. See also Ortega-Rodriguez, 507 U.S. at 242 n.12 (where
[J-65-2018] - 15
a defendant flees during the appeal period, but his “attorney files an appeal for him in his
absence, the appeal will be subject to dismissal under straightforward application of Smith
[concerning enforceability of judgment] and Molinaro [concerning disentitlement to call
upon resources of the court for determination].”); Doty, 997 A.2d at 1189 (finding
defendant could not resurrect his appellate rights, even though counsel filed notice of
appeal during appeal period, because defendant failed to return to court’s jurisdiction prior
to the expiration of the appeal period); Commonwealth v. Hunter, 952 A.2d 1177, 1178
(Pa. Super. 2008) (concluding that, because the appellant remained a fugitive from the
time of his scheduled sentencing until after his counsel had filed an appeal and the appeal
deadline passed, he was not entitled to pursue an appeal). Furthermore, if counsel’s
actions in filing an appeal while the defendant was a fugitive preserved appellate review,
there would be arbitrary and disparate results depending upon whether a fugitive’s
attorney acted sua sponte by filing a notice of appeal without consulting with the fugitive,
or decided not to do so. Related thereto, counsel’s action or inaction in this regard could
give rise to claims of ineffectiveness, as well as creating incentives for the parties to either
speed the proceedings or to slow them.6
Furthermore, while we recognize that there are criminal sanctions for escape, see,
e.g., 18 Pa.C.S. § 5121, we reject Appellant’s contention that forfeiture of his appellate
rights while a fugitive is unjustified punishment, as his fugitivity has caused, and would
cause, unnecessary delay in the appellate process. At a minimum, albeit not dispositive,
6We also note that a trial in absentia is qualitatively distinct from the appeals process,
and simply because trials can be conducted without a defendant does not suggest the
appellate process is similarly required to proceed in a defendant’s absence. Trials can
be conducted in absentia when a defendant absconds because, otherwise, the
defendant’s fugitivity would preclude the imposition of a judgment. Once a defendant has
been convicted and sentenced, however, his judgment of sentence is final, unless he
chooses to appeal. Thus, because the appellate process is entirely discretionary, the
same considerations that allow for a trial in absentia are not present on appeal.
[J-65-2018] - 16
we note that, given that the trial court, due to Appellant’s fugitive status, declined to
address his claims on the merits, if we granted Appellant relief, the matter would need to
be remanded to the trial court for the preparation of an opinion on those claims.
Thus, for these reasons, we reaffirm our seminal decision in Deemer as an
appropriate accommodation of the competing interests in the right to appeal and the
proper functioning of the appellate court system. We reiterate that a defendant’s fugitive
status does not per se disqualify him or her from appellate review; however, when a
defendant absconds, and then returns to the court system, he takes the criminal justice
system as he finds it. Under this straight-forward approach, the focus is on the fugitive’s
conduct, and the timing of his return to the criminal justice system. Moreover, counsel’s
actions to preserve the fugitive’s rights are ineffectual. Thus, for the reasons offered
above, regardless of whether counsel has filed a notice of appeal in the fugitive’s
absence, if the period for filing an appeal has not expired, the fugitive is entitled to file an
appeal upon his return; and, if the time for filing has elapsed, the fugitive no longer enjoys
the right to file an appeal.
Applying the teachings of Deemer to this matter, we note that Appellant absconded
prior to trial, during sentencing, during post-trial motions, and during the 30-day notice of
appeal period. Because, upon Appellant’s return, his time for appeal had elapsed,
Appellant forfeited appellate review, regardless of whether his counsel filed a timely notice
of appeal or appellate brief.7 Accordingly, we hold that the Superior Court correctly
affirmed Appellant’s judgment of sentence after the trial court concluded he forfeited his
appellate rights due to his fugitive status.
Order affirmed.
7As noted above, whether Appellant could, at this juncture, obtain relief from an illegal
sentence under the Post Conviction Relief Act is disputed by the parties, but beyond the
scope of this appeal.
[J-65-2018] - 17
Chief Justice Saylor and Justices Baer, Donohue, Dougherty, Wecht and Mundy
join the opinion.
[J-65-2018] - 18