Appeal from the Judgment of Sentence entered on March 19, 2009 in the Court of Common Pleas of Erie County, Criminal Division, No. CP-25-CR-0001370-2008
The opinion of the court was delivered by: Musmanno, J.
BEFORE: MUSMANNO, ALLEN, JJ. and McEWEN, P.J.E. OPINION BY
¶ 1 Christopher Doty ("Doty") appeals from the judgment of sentence entered following his conviction of criminal conspiracy and aggravated assault.1 We quash the appeal.
¶ 2 During the early evening hours of April, 24, 2008, Kyle Miles ("Miles") walked with a female companion and her three children down Wallace Street in Erie, Pennsylvania. As Miles approached the corner of Wallace and East 7th Streets, Kelly Gore ("Gore") stopped Miles to complain of rumors that had been circulating about her. During Miles's brief discussion with Gore, Lionel Hamer ("Hamer") approached and leaned against a nearby stop sign. Doty and Gregory Crosby ("Crosby") also stood nearby. As Miles and his companions walked away, Doty, Hamer and Crosby followed. 1 18 Pa.C.S.A. §§ 903, 2702.
¶ 3 Having followed Miles as he turned to walk up East 7th Street, Crosby approached Miles and asked, "[W]hat was that shit you were saying about my cousin?" N.T., 1/16/09, at 179. When Miles failed to respond, Crosby struck Miles. The two men exchanged punches in the middle of the street, after which Miles attempted to flee his attackers. Doty, Crosby and Hamer gave chase, eventually attacking Miles in front of his house. Doty, Crosby and Hamer savagely beat and kicked Miles, rendering him bloody and unconscious.
¶ 4 Before Miles fled to his house, Miles's female companion telephoned 9- 1-1. When police officers subsequently arrived at the scene, they found Miles lying in front of his house, bleeding from the mouth and unconscious. As a result of the beating, Miles remained hospitalized in a coma for six weeks. Miles continues to suffer from serious cognitive and speech impairment, right arm paralysis, impaired vision and memory loss.
¶ 5 One day later, in a police interview, Doty admitted to his participation in the altercation. After his arrest, Doty filed an Omnibus Pre-trial Motion, which the trial court denied. On January 20, 2009, after a joint trial with Hamer and Crosby, the jury found the co-defendants guilty of conspiracy and aggravated assault. The trial court scheduled Doty's sentencing to take place on March 19, 2009.
¶ 6 Notwithstanding his scheduled sentencing date and the bond posted to secure his presence, Doty failed to appear at sentencing. The trial court sentenced Doty, in absentia, to a prison term of 66 to 136 months for his conviction of aggravated assault. For his conviction of criminal conspiracy, the trial court sentenced Doty to a consecutive prison term of 48 to 96 months. The trial court imposed fees and costs, and further ordered Doty to pay $1,500,000.00 in restitution. On March 29, 2009, the trial court issued a bench warrant for Doty. The next day, Doty's counsel filed a post- sentence Motion, which the trial court subsequently denied.
¶ 7 During the 30-day appeal period, on April 21, 2009, Doty's counsel filed a Notice of appeal on Doty's behalf. The trial court Ordered Doty to file a concise statement of matters complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Doty's counsel complied with the trial court's Order. At the time the trial court filed its Rule 1925(a) Opinion, on June 23, 2009, Doty remained a fugitive. However, according to Doty's appellate brief, law enforcement authorities apprehended Doty in another state.
¶ 8 In this appeal, Doty presents the following claims for our review: [1.] Whether [Doty] waived his ability to file an appeal in this case and make the arguments set forth herein when he failed to appear for his sentencing[?]
[2.] Whether the use of transcripts, rather than the video of [Doty's] statement, violated the "best evidence" rule and Rule 1002 of the Pennsylvania Rules of Evidence[?] [3.] Whether the trial court erred as a matter of law and/or abused its discretion in ordering [Doty] to pay $1,500,000.00 in restitution[?]
[4.] Whether the trial court erred as a matter of law and/or abused its discretion in sentencing [Doty] in the aggravated range of the sentencing guidelines and to consecutive terms of imprisonment[?] Brief for Appellant at 3.
¶ 9 Since Doty remained a fugitive throughout the 30-day appeal period, Doty first acknowledges that he may be ineligible to file a direct appeal. Id. at 9-10. However, Doty argues that one of his claims, his challenge to the trial court's sentence of restitution, implicates the legality of that sentence and, therefore, cannot be waived. Id. at 10. Doty also points out that the trial court "did not specifically state that [Doty's] fugitive status definitely precludes him from being able to continue his appeal." Id.
¶ 10 Guaranteed by article 5, section 9 of the Pennsylvania Constitution,2 the constitutional right to appeal "is a personal right which may be relinquished only through a knowing, voluntary and intelligent waiver." Commonwealth v. Passaro, 476 A.2d 346, 347 (Pa. 1984) (citing Commonwealth v. Cathey, 384 A.2d 589 (Pa. 1978); Commonwealth v. 2 Article 5, section 9 of the Pennsylvania Constitution provides as follows: 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 ...