J-S18007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
IBRAHIM ALY :
: No. 1505 EDA 2015
Appellant
Appeal from the Judgment of Sentence April 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006077-2013
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 01, 2017
Appellant, Ibrahim Aly, appeals from the judgment of sentence entered
by the Honorable Diana Anhalt of the Philadelphia Court of Common Pleas
following a probation violation hearing. We quash.
The relevant factual and procedural history is as follows. On September
12, 2013, Appellant was convicted of theft1 and receiving stolen property.2
Following his conviction, the trial court sentenced Appellant to time served to
twenty-three months’ incarceration, with a concurrent two-year probationary
period. Appellant was immediately paroled, and as a condition of his
____________________________________________
Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 3921(a).
2 18 Pa.C.S.A. § 3925(a).
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probation, was required to comply with mental health treatment and drug
testing.
A year later, after refusing to comply with mental health treatment and
testing positive for marijuana, Appellant absconded from supervision. The
probation department notified Appellant of his alleged probation violations and
issued an absconder warrant for his arrest. Appellant was apprehended on the
warrant in the spring of 2015.
The trial court held a probation violation hearing on April 21, 2015. The
court found Appellant guilty of violating the conditions of his probation, and
sentenced him to serve his back time, with immediate parole and a concurrent
two-year probationary period.
Following the revocation hearing, Appellant filed a timely pro se motion
for reconsideration. Subsequently, on May 11, 2015, Appellant, once again,
absconded from probation supervision. The trial court issued a bench warrant
on May 15, 2015. On May 21, 2015, Appellant filed a pro se notice of appeal.
Appellant was not apprehended until November 22, 2016.
On appeal, Appellant argues the Commonwealth provided insufficient
evidence at his probation revocation hearing to establish he violated the terms
of his probation. Prior to addressing Appellant’s issue on the merits, we must
first address the Commonwealth’s claim we should quash Appellant’s appeal
due to Appellant’s fugitive status during the pendency of the appeal.
A defendant’s fugitive status affects his appellate rights. See, e.g.,
Commonwealth v. Doty, 997 A.2d 1184, 1187 (Pa. Super. 2010) (“[A]
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defendant who is a fugitive from justice during the appellate process may
forfeit the right to appellate review.”)
Our Supreme Court, in Commonwealth v. Deemer, 705 A.2d 827 (Pa.
1997), set forth the framework necessary to determine whether a defendant’s
fugitive status results in a waiver of his appellate rights:
If [the defendant] 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.
Id., at 829 (footnote omitted).
Here, Appellant became a fugitive between the filing of his post-trial
motions and the filing of his appeal. Appellant was not apprehended until
November 22, 2016—over a year after his appellate rights had lapsed.
Further, Appellant’s filing of a pro se notice of appeal during the appeal period
did not preserve his appellate rights. He filed the notice of appeal while being
a fugitive from justice. Appellant was unable to lawfully exercise his appellate
rights while simultaneously refusing to submit to the court’s jurisdiction during
the appeal period. See Doty, 997 A.2d at 1189 (holding that appellant’s
counsel’s filing of a notice of appeal during the appeal period did not preserve
appellant’s rights where appellant remained a fugitive from justice). See also
Commonwealth v. Hunter, 952 A.2d 1177, 1178 (Pa. Super. 2008)
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(concluding that because 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 is not entitled to pursue an appeal).
Accordingly, we find Appellant has “forfeited his right to appellate review
of all claims raised in the instant appeal[.]” Doty, 997 A.2d at 1189.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
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