J-A10037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KHALID M. HARTH :
:
Appellant : No. 683 EDA 2017
Appeal from the Judgment of Sentence February 3, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002122-2015
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 16, 2019
Appellant, Khalid M. Harth, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial conviction for robbery, burglary, conspiracy to commit robbery, and
conspiracy to commit burglary.1 For the following reasons, we vacate the
February 3, 2017 judgment of sentence as well as the amended judgment of
sentence imposed on February 17, 2017, and remand for further proceedings.
The relevant facts and procedural history of this appeal are as follows.
On January 11, 2015, a group of individuals, including Appellant and co-
defendant, Darren Brown, participated in a home invasion and armed robbery
of several victims. The Commonwealth filed a complaint against Appellant
____________________________________________
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3502(a)(1), and 903, respectively.
J-A10037-19
and co-defendant on January 22, 2015. On February 24, 2015, a grand jury
indicted Appellant on multiple counts of, inter alia, robbery, burglary,
conspiracy to commit robbery, and conspiracy to commit burglary, stemming
from the January 11th incident.
On April 7, 2015, the court conducted a scheduling conference, ordered
the Commonwealth to pass discovery by June 22, 2015, and scheduled trial
for September 28, 2015. The relevant docket entry for the April 7 th scheduling
conference provides, in part: “Defense needs videos, FBI extract, 2010 videos,
discovery for DC-14-15-05913 and color photos[.] Commonwealth has no
medical records. List for status of discovery on 6/22/15.” (Criminal Docket
at 7, unpaginated). The docket entry for June 22, 2015, reads in relevant
part as follows: “Commonwealth not ready—IGJ discovery is not ready to be
passed today. List for status on 7/28/15. … Jury trial on 9/28/15.”2 (Id.).
On July 28, 2015, the Commonwealth requested a continuance to pass
discovery, which the court granted. A July 28, 2015 docket entry titled “Order
Granting Motion for Continuance” states, in relevant part: “Commonwealth
request—Commonwealth to pass IGJ discovery by 7/30/15.” (Id.). On July
30, 2015, the court rescheduled trial for December 14, 2015, in light of the
Pope’s visit to Philadelphia in September 2015. The relevant docket entry
provides, in part: “09/24/15 date blocked, POPE’S VISIT. Had to give this
____________________________________________
2 “IGJ” stands for “indicting grand jury.”
-2-
J-A10037-19
new date.” (Id. at 8, unpaginated).
On August 21, 2015, the court rescheduled trial for January 11, 2016.
There is no explanation in the record for the continuance. An August 21, 2015
docket entry titled “Order Granting Motion for Continuance” states, however,
in relevant part: “IGJ discovery to be passed. … Jury trial on 1/11/16.” (Id.
at 9, unpaginated). On December 29, 2015, the court entered an order
rescheduling trial for January 25, 2016. Again, there is no explanation in the
record for this continuance. Co-defendant’s counsel, however, was on trial in
an unrelated matter on January 25, 2016, and the Commonwealth refused to
sever the case. Also on January 25, 2016, the court rescheduled trial for May
23, 2016. The relevant docket entry, tilted “Commonwealth Refuses to
Sever—Codefendant Unable to Proceed” provides, in part, as follows:
“Defense attorney on co-defendant case is on [t]rial in Delaware County. …
List for 3-day [j]ury [t]rial—5/23/16[.]” (Id. at 11, unpaginated).
On May 23, 2016, the scheduled trial date, Appellant filed a motion to
dismiss pursuant to Pa.R.Crim.P. 600. In his Rule 600 motion, Appellant
asserted the Commonwealth had not exercised due diligence as it had failed
to turn over discovery, which remained outstanding as of May 23, 2016.
Meanwhile, on May 23 and 24, 2016, the court continued trial, because the
court was sitting on an unrelated trial. Each day, the court set the next court
date for the subsequent day, May 24 and May 25, 2016, respectively. Docket
entries for May 23 and 24, 2016, indicate additional discovery remained
-3-
J-A10037-19
outstanding. On May 25, 2016, the court remained on another trial. That
same day, the court set a Rule 600 hearing for June 2, 2016, and noted it
would reschedule trial following the hearing. A docket entry for May 25, 2016,
states: “Audio discovery passed at the bar of the [c]ourt.” (Id. at 12-13,
unpaginated).
On June 2, 2016, the court rescheduled trial for November 28, 2016,
and conducted a Rule 600 hearing. During the Rule 600 hearing, Appellant
asserted that throughout the case the Commonwealth had failed to pass
discovery, including voluminous police records defense counsel had only
recently learned existed after counsel happened to have a conversation with
a detective in the courthouse. The Commonwealth offered no explanation for
its failure to turn over discovery and instead claimed Appellant had not
requested the outstanding discovery. (N.T. Rule 600 Hearing, 6/2/16, at 3-
8).
On June 22, 2016, the court denied Appellant’s Rule 600 motion on the
record. The court stated its conclusion, as follows:
[THE COURT]: … The period from when the first
complaint was filed on or about January 22, 2015, and the
current date is a total of approximately 516 or [5]17 days
and subtracting—or roughly speaking 369 days of excusable
or extendable time, there are a total of 147 days attributable
to the Commonwealth, more or less, and this is within the
limit of 365 days, and [Appellant] has not shown that
the Commonwealth did not exercise due diligence,
and therefore the motion to dismiss is denied.
(N.T. Rule 600 Disposition Hearing, 6/22/16, at 6) (emphasis added). When
-4-
J-A10037-19
Appellant subsequently asked the court for clarification regarding the impact
of the Commonwealth’s failure to turn over discovery, the following exchange
took place:
[DEFENSE COUNSEL]: Thank you, Your Honor. Just for
the record, so it’s my understanding that…that you are
considering the fact that the [c]ourt was on trial and not
considering the fact that discovery was not complete?
[THE COURT]: Well, it doesn’t matter to me. If
the [c]ourt’s on trial, the [c]ourt’s on trial. I can’t hold that
against the Commonwealth. That’s considered extendable
time.
[DEFENSE COUNSEL]: Right, but discovery wasn’t
complete, and you’re saying that that’s not included?
[THE COURT]: Well, I took it into consideration,
but like I said, what’s just as dispositive to me is the fact
that I—I’m not going to get into—locked into a response.
I’m taking that into consideration, the fact that I couldn’t
have done the case if I wanted to. So, that’s a big factor
I’m looking at.
* * *
[THE COURT]: Said differently, even if
discovery were complete and the [c]ourt were not able to
do the case, that would not have been held against the
Commonwealth, right? Do you agree?
[DEFENSE COUNSEL]: If discovery had been complete
and—yes—and the [c]ourt was on trial, that’s excusable
time.
[THE COURT]: Right, extendable.
(Id. at 6-8).
The parties proceeded to trial on November 28, 2016, and the
Commonwealth passed to Appellant 15 intended trial exhibits, which the
-5-
J-A10037-19
defense claimed it had not previously received.3 As a result, Appellant made
an oral motion to dismiss pursuant to Rule 600. The court and parties briefly
discussed on the record the outstanding discovery, in part, as follows:
[DEFENSE COUNSEL]: And I understand that this was
not the [prosecutor] that was previously assigned. It was
Marcus Washington up till April 16 of 2015, when he left
their office.
[THE COURT]: Okay.
[DEFENSE COUNSEL]: However, here’s—the issue is
due diligence. They’ve had this in their pos[session] since
the beginning of this case, which was in January of 2015.
[THE COURT]: Did you have it in your
possession since then, [c]ounsel? Or do you know?
[COMMONWEALTH]: I don’t know.
[THE COURT]: All right.
[COMMONWEALTH]: I had to review the file with the
detective where I had him e-mail me some things. So, I
don’t know what—what was in—what necessarily should
have been passed or not complete, to be completely candid
with Your Honor.
I know that Mr. Washington sent a letter to both attorneys
stating that, you know, this is the discovery that will be
passed. Any further requests need to be handled by—by an
IGJ judge.
[DEFENSE COUNSEL]: Right.
And if I may just respond to that, Judge. That’s always the
case. But that means that’s all the discovery they’re going
____________________________________________
3Also on November 28, 2016, co-defendant entered a guilty plea to robbery,
conspiracy to commit robbery, and VUFA offenses. Thus, co-defendant did
not proceed to trial with Appellant.
-6-
J-A10037-19
to use at trial.
[THE COURT]: Right.
* * *
[DEFENSE COUNSEL]: … And now I’m in court, and I
have—I mean, that is not an insignificant amount of
discovery that I’m seeing the morning I’m supposed to pick
a jury on this case.
(N.T. Jury Trial, 11/28/16, at 12-13). When the court asked the
Commonwealth if it planned to use at trial most of the 15 exhibits at issue,
the Commonwealth responded that it did not plan to use 10 of the exhibits.
Subsequently, the following exchange took place:
[DEFENSE COUNSEL]: And Your Honor, that doesn’t
excuse that maybe I would need to use these exhibits at
trial.
* * *
[THE COURT]: All right. But that’s a separate
issue from whether or not—if he’s saying he can proceed
without it and is willing to do it—
[DEFENSE COUNSEL]: Judge, that’s not due diligence.
[THE COURT]: —that certainly does address
some of your concerns. It’s up to you whether or not you
want to use it or not.
[DEFENSE COUNSEL]: No. It doesn’t remedy it, Your
Honor.
[THE COURT]: It does remedy it to some
degree.
* * *
[THE COURT]: … It has less relevance if
-7-
J-A10037-19
they’re not using it.
(Id. at 16-17). The trial court then announced it would take the Rule 600
motion under advisement so the parties could conduct voir dire that day.
When the court asked if the Commonwealth had a final response to Appellant’s
Rule 600 motion, the Commonwealth responded: “I mean, Your Honor,
frankly, you already denied the motion. There hasn’t been a change of
circumstance. The last continuance was not on the Commonwealth. So, it
was denied.” (Id. at 24). The Commonwealth, however, offered no
explanation for why it had failed throughout the case to turn over discovery
or why it had failed to pass to Appellant the 15 exhibits at issue prior to
November 28, 2016.
On November 29, 2016, the next day, the court denied Appellant’s
second Rule 600 motion on the record, and explained its rationale in part as
follows:
[THE COURT]: …
… Although the [c]ourt realizes that the defense didn’t have
the discovery information on or about May of 2016, the
continuances from then until today were due to the—due to
the [c]ourt hearing the [Rule] 600(A) motion filed on May
23, 2016, and also because of a [c]ourt continuance up until
the current time. So, all that time really should be
extendable time. Even if I wanted to do the matter, I wasn’t
in a position to do it back then because of the other matters.
So, obviously, that time should not be attributable to the—
to the Commonwealth.
The period from when the first complaint was filed on
January 22, 2015, to the current date of November 2[9],
2016, is a total of approximately 676 days. Subtracting the
-8-
J-A10037-19
529 days of excusable or extendable time, there are a total
of 147 days attributable to the Commonwealth, and this is
within the time limit of 365 days, and [Appellant] has not
shown that the Commonwealth did not exercise due
diligence. And therefore the motion to dismiss is denied.
* * *
[THE COURT]: …I’m incorporating by reference
some of the findings that I stated previously. I already gave
findings prior to today’s hearing.
* * *
[THE COURT]: The [c]ourt continued the
matter, and its extendable time. All right?
So, even if the Commonwealth isn’t ready, I’m not
going to hold the Commonwealth responsible if I’m
doing other matters. …
(N.T. Trial, 11/29/16, at 22-24) (emphasis added).
The parties then completed jury selection and proceeded with trial,
during which the jury heard testimony from two Victims and several police
officers who investigated the January 11, 2015 incident. The trial court
summarized the trial evidence, in relevant part, as follows:
[Victim 1] testified that he went to the 2200 block of 7 th
Street and Jackson Street on January 11, 2015, to visit
three friends for dinner between 6:00 p.m. and 7:00 p.m.
After a brief stay within the apartment, [Victim 1] said he
left to get some items from his car parked on the corner of
7th Street and Jackson Street approximately 30 feet from
the apartment building’s entrance. As he was returning to
the apartment entrance, one of the home invaders placed a
gun at his neck. Although [Victim 1] did not get a clear look
at the assailant, he described the individual as wearing a
mask that covered his entire face except for the eyes. The
man led [Victim 1] to the third floor apartment where his
friends resided.
-9-
J-A10037-19
According to [Victim 1], as they ascended the stairs, the
man used a cell phone to communicate with his cohorts.
[Victim 1] then heard two or three individuals running up
the stairs behind them. Once inside the apartment, the
gunman instructed [Victim 1] to go to the kitchen, place his
hands on the wall, and not look behind him. The gunman
kept his weapon on [Victim 1] and instructed [Victim 1]’s
friends ([Victim 4] and [Victim 5]) to remain seated at the
kitchen table—“otherwise they would get shot.” Other men
then entered the apartment and took…[V]ictims’ cell
phones.10
10… The victims were [Victim 1], [Victim 2], [Victim
3], [Victim 4], [Victim 5], and an unidentified woman.
[Victim 1] further testified that he overheard the gunman
instruct a cohort to search one of the other [V]ictims’ car[s]
for cash. Meanwhile, [Victim 1] heard “somebody trying to
get out of the house.” Another [V]ictim was taken outside.
The gunman then forced [Victim 1] down the apartment
stairs after the other home invaders had left. When the
gunman shoved [Victim 1], [Victim 1] did not look back out
of fear for his safety. However, [Victim 1] later told a friend
what had occurred.
[Victim 2] testified he was in his apartment at 2227 South
7th Street with a friend ([Victim 3])13 on January 11, 2015,
when three masked men entered his room. [Victim 2]
testified that one of the men pointed a gun at them, while
the other two demanded money from [Victim 2]. [Victim 2]
gave them $130.00. The men also took [Victim 2]’s cell
phone from his bed, demanded more money, and forced him
to lay down with his face to the floor. The gunman then
forced [Victim 3] to give them money. One of the men
subsequently struck [Victim 3] in the head with an object.
13 [Victim
3]…was unavailable to testify during the trial
as he was out of the country at the time.
When there was silence, [Victim 2] saw three intruders,
[Victim 3], and [Victims 1, 4, and 5] standing in the hallway.
[Victim 2] then locked the door, jumped out of the bedroom
window to the second floor landing, and borrowed a tenant’s
- 10 -
J-A10037-19
phone to call 9-1-1. He remained in the tenant’s apartment
until the police arrived. When [Victim 2] left the building,
he saw [Victim 3] being treated in an ambulance for head
injuries.
Police Officer Chanta Ung testified that [Victim 3] told him
during his January 11, 2015 investigation that the intruders
demanded $25,000. [Victim 3] also confirmed that one of
the intruders struck him in the head and dragged him to his
silver Toyota Avalon. Although [Victim 3] later escaped, the
intruders took his car keys.
Police Officer Mark Davis testified he stopped a silver Infiniti
I30 with the license plate number JPY3440 at approximately
7:00 p.m. on January 21, 2015. The occupants of the
vehicle included [co-defendant], …Appellant, and Zyfir
Dorsey. Davis also testified that he recovered a holstered
[handgun] beneath the driver’s seat.
Detective Mark McAndrews testified that he was assigned to
the case on January 12, 2015. McAndrews testified that he,
Detective Spadaccini, and Detective Eric Johnson canvassed
the area at 2333 South 7th Street for surveillance video on
January 12 and 13 of January 2015. The detectives
retrieved surveillance videos from three locations.
However, most of the surveillance depicting the incident was
retrieved from Mekong Video located at 2218 South 7 th
Street. The detective watched this video to determine what
type of vehicle the perpetrators were driving when they fled
the scene of the incident. After consulting with Major
Crimes Auto Squad, McAndrews believed the car was most
likely a silver, four-door 2001 or 2003 Infiniti with a moon
roof.
McAndrews later testified that he was travelling westbound
on the Schuylkill Expressway in his personal vehicle on
January 16, 2015, when he observed a silver I30 Infiniti
resembling the vehicle used by the home invaders.
McAndrews took a picture of the vehicle’s tags with his cell
phone and relayed it to Detective Vega. McAndrews and
Vega then reviewed the footage from Mekong Video and
concluded that the car used by the home invaders on
January 11, 2015, was the same car McAndrews observed
on the Expressway. McAndrews also learned that the
- 11 -
J-A10037-19
vehicle had recently been stopped by the police in South
Philadelphia on December 15, 2014, and on January 5,
2015. On these dates, [co-defendant] was the driver
and…Appellant was a passenger.
McAndrews later instructed Officer Mark Davis and Officer
Joe Caruso to investigate whether the I30 Infiniti was
involved in the January 11, 2015 robbery. On January 21,
2015, Davis and Caruso informed McAndrews that they had
stopped the vehicle. At the time, there were several
occupants (including…Appellant) in the vehicle.
On January 22, 2015, McAndrews showed…Appellant the
video after reading his Miranda rights. While watching the
video, …Appellant identified [co-defendant] and himself as
two of three individuals who were exiting the Infiniti at 2218
South 7th Street around 8:00 p.m. on the night of the
robbery. The video showed…Appellant extending his head
out of the rear driver-side door and looking southbound on
7th Street. It also showed…Appellant exiting the vehicle,
walking around the corner and onto Tree Street, and
returning to the car. It further showed…Appellant stepping
out of the car (arguably as a “lookout”) before getting back
in the vehicle when the home invaders exited the apartment
with [Victim 3]. Lastly, it showed [co-defendant] driving
down Tree Street after the intruders returned to the Infiniti.
On January 23, 2015, Detectives McAndrews and Spadaccini
searched the silver 2001 I30 Infiniti and recovered:
[handgun ammunition], [co-defendant]’s wallet, a key fob
to a Toyota automobile, and a set of house keys.
McAndrews testified that the keys were the same ones taken
from [Victim 3] on the night of the robbery. McAndrews
further testified that a search warrant was executed
at…Appellant’s residence on January 22, 2015. When
executing the warrant, the police recovered
from…Appellant’s bedroom one…handgun[ and
ammunition]. Ammunition recovered from…Appellant’s
residence also matched the ammunition and handgun
recovered from the silver I30 Infiniti stopped on January 21,
2015.
Detective McAndrews later testified that [co-defendant]’s
and…Appellant’s cell phones were searched on or about
- 12 -
J-A10037-19
January 27, 2015, and January 29, 2015. According to
McAndrews, photos recovered from the cell phones
showed…Appellant and [co-defendant] posing with various
firearms. According to McAndrews, one of the firearms
resembled the…handgun recovered from…Appellant’s
residence. Another firearm matched the…handgun
recovered from the I30 Infiniti.
* * *
(Trial Court Opinion, filed December 31, 2017, at 3-8) (internal citations to
record and most internal footnotes omitted). On December 2, 2016, the jury
convicted Appellant of three counts each of robbery and burglary, and one
count each of conspiracy to commit robbery and conspiracy to commit
burglary.
The court conducted a sentencing hearing on February 3, 2017. During
the hearing, the Commonwealth requested restitution in the amount of
$2,000.00, in light of the value of the property Appellant stole from Victim 3.
Victim 3, however, did not testify at trial and was unavailable to testify at the
February 3rd sentencing hearing. At the conclusion of the hearing, the court
sentenced Appellant to an aggregate term of eight (8) to sixteen (16) years’
incarceration, plus six (6) years’ probation, and restitution in the nominal
amount of $10.00. By agreement of the parties, the court imposed restitution
in a nominal amount at sentencing and scheduled a second restitution hearing
for February 17, 2017, to hear Victim 3’s testimony and amend the amount of
restitution. Appellant filed a timely notice of appeal on February 13, 2017.
On February 17, 2017, the court conducted a restitution hearing.
- 13 -
J-A10037-19
Following the hearing, the court entered an amended sentencing order,
increasing the amount of restitution to $1,500.00; Appellant’s incarceration
and probationary terms remained the same. The court ordered Appellant on
March 27, 2017, to file a concise statement of errors complained of on appeal
per Pa.R.A.P. 1925(b). On April 7, 2017, Appellant filed a motion for extension
of time to file a concise statement. Appellant filed on August 22, 2017, a Rule
1925(b) statement and contemporaneous application to file the Rule 1925(b)
statement nunc pro tunc. On September 8, 2017, the court granted
Appellant’s petition to file his concise statement nunc pro tunc.
On August 15, 2018, Appellant filed in this Court an application to
remand so that Appellant could have an opportunity to amend his Rule
1925(b) statement nunc pro tunc to include a claim regarding jury
instructions. This Court denied Appellant’s application on September 17,
2018, without prejudice to Appellant to raise it again before the assigned
merits panel.
Appellant raises three issues for our review:
DID NOT THE TRIAL COURT ERR AND ABUSE ITS
DISCRETION IN DENYING THE MOTION TO DISMISS
PURSUANT TO PA.R.CRIM.P. 600(A)?
WAS NOT THE EVIDENCE INSUFFICIENT FOR CONVICTION
ON ALL CHARGES HERE, AS THERE WAS NO EVIDENCE OF
[APPELLANT] BEING THE DOER OR ACCOMPLICE OF ANY
ROBBERY OR BURGLARY NOR ANY EVIDENCE OF A
CONSPIRATORIAL AGREEMENT OR OF [APPELLANT]’S
INTENT TO AID THE DOERS?
DID NOT THE TRIAL COURT ERR AND ABUSE ITS
- 14 -
J-A10037-19
DISCRETION IN DENYING DEFENSE COUNSEL’S
REQUESTED JURY INSTRUCTION, WHICH CLARIFIED THAT
[APPELLANT] COULD NOT BE FOUND GUILTY OF THE
SUBSTANTIVE CRIMES AT ISSUE UNDER A
CONSPIRATORIAL THEORY OF LIABILITY?
(Appellant’s Brief at 5).
As a prefatory matter, in criminal proceedings, an order of restitution is
a sentence (even when imposed as a condition of probation); it is not an award
of damages. Commonwealth v. Mariani, 869 A.2d 484, 486 (Pa.Super.
2005). Issues concerning a court’s statutory authority to impose restitution
implicate the legality of the sentence, which we can review sua sponte.
Commonwealth v. Deshong, 850 A.2d 712, 713 (Pa.Super. 2004) (stating
timeliness of court’s imposition of restitution concerns legality of sentence).
See also Commonwealth v. Oree, 911 A.2d 169, 172 (Pa.Super. 2006),
appeal denied, 591 Pa. 699, 918 A.2d 744 (2007) (maintaining legality of
sentence claims cannot be waived, given proper jurisdiction, and Superior
Court can review illegal sentences sua sponte). “Issues relating to the legality
of a sentence are questions of law….” Commonwealth v. Diamond, 945
A.2d 252, 256 (Pa.Super. 2008), appeal denied, 598 Pa. 755, 955 A.2d 356
(2008). When the legality of a sentence is at issue, our “standard of review
over such questions is de novo and our scope of review is plenary.” Id. “If
no statutory authorization exists for a particular sentence, that sentence is
illegal and subject to correction. An illegal sentence must be vacated….”
Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa.Super. 2011) (quoting
- 15 -
J-A10037-19
Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa.Super. 2011), appeal
denied, 616 Pa. 666, 51 A.3d 837 (2012)).
The Crimes Code governs the imposition of restitution as follows:
§ 1106. Restitution for injuries to person or property
(a) General rule.―Upon conviction for any crime
wherein property has been stolen, converted or otherwise
unlawfully obtained, or its value substantially decreased as
a direct result of the crime, or wherein the victim suffered
personal injury directly resulting from the crime, the
offender shall be sentenced to make restitution in addition
to the punishment prescribed therefor.
* * *
(c) Mandatory restitution.—
(1) The court shall order full restitution:
* * *
(2) At the time of sentencing the court shall
specify the amount and method of restitution. In
determining the amount and method of restitution, the
court:
(i) Shall consider the extent of injury
suffered by the victim, the victim’s request for
restitution as presented to the district attorney in
accordance with paragraph (4) and such other
matters as it deems appropriate.
* * *
(3) The court may, at any time or upon the
recommendation of the district attorney that is based on
information received from the victim and the probation
section of the county or other agent designated by the
county commissioners of the county with the approval of
the president judge to collect restitution, alter or amend
any order of restitution made pursuant to paragraph (2),
- 16 -
J-A10037-19
provided, however, that the court states its reasons and
conclusions as a matter of record for any change or
amendment to any previous order.
(4)(i) It shall be the responsibility of the district
attorneys of the respective counties to make a
recommendation to the court at or prior to the time of
sentencing as to the amount of restitution to be ordered.
This recommendation shall be based upon information
solicited by the district attorney and received from the
victim.
* * *
18 Pa.C.S.A. § 1106(a), (c)(1), (c)(2)(i), (c)(3)-(4)(i) (emphasis added).
Section 1106(c)(2) includes “the requirement that if restitution is ordered, the
amount must be determined at the time of sentencing….”
Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa.Super. 2002)
(emphasis in original).
It also placed upon the Commonwealth the requirement that
it provide the court with its recommendation of the
restitution amount at or prior to the time of sentencing.
Although the statute provides for amendment or
modification of restitution “at any time,” 18 Pa.C.S.A. §
1106(c)(3), the modification refers to an order “made
pursuant to paragraph (2)….” Thus, the statute mandates
an initial determination of the amount of restitution at
sentencing. This provides the defendant with certainty as
to his sentence, and at the same time allows for subsequent
modification, if necessary.
Id. (internal citations and footnote omitted).
Generally, a court “may modify or rescind any order within 30 days after
its entry, notwithstanding the prior termination of any term of court, if no
appeal from such order has been taken or allowed.” 42 Pa.C.S.A. § 5505
- 17 -
J-A10037-19
(emphasis added). In the context of a restitution order, however, a trial court
is divested of jurisdiction to modify the amount of restitution after the
defendant has filed a timely notice of appeal from the judgment of sentence.
Commonwealth v. Weathers, 95 A.3d 908, 912 (Pa.Super. 2014), appeal
denied, 630 Pa. 736, 106 A.3d 726 (2015). The Weathers court reasoned:
Despite the “at any time” language of section 1106(c)(3),
we are compelled to conclude that in this case the trial court
did not have jurisdiction to modify the order of restitution
due to Appellant’s timely filing of a notice of appeal. [I]t is
well established that “questions of jurisdiction may be raised
sua sponte.” See Commonwealth v. Coolbaugh, 770
A.2d 788, 791 (Pa.Super. 2001) (internal citation omitted).
After the trial court denied Appellant’s post-sentence
motion, Appellant filed a timely notice of appeal…. At that
point, the trial court no longer had jurisdiction to proceed in
this matter. See Pa.R.A.P. 1701(a) (“Except as otherwise
prescribed by these rules, after an appeal is taken or review
of a quasijudicial order is sought, the trial court or other
government unit may no longer proceed further in the
matter.”); Commonwealth v. Ledoux, 768 A.2d 1124,
1125 (Pa.Super. 2001) (“Jurisdiction is vested in the
Superior Court upon the filing of a timely notice of appeal.”).
Nevertheless, the trial court entered an order amending the
amount of restitution [after Appellant had timely filed a
notice of appeal]. Despite the flexibility granted to the court
to amend orders of restitution under section 1106(c)(3),
here the court could not modify the order of restitution
during a period when it did not have jurisdiction over the
case.
… [W]e must vacate the court’s…order amending the
amount of restitution. Under section 1106(c)(3), the trial
court may subsequently amend the order of restitution
when it regains jurisdiction, following the conclusion of this
appeal, provided that the court states its reasons for doing
so as a matter of record.
Weathers, supra at 912-13 (internal footnotes and some citations omitted).
- 18 -
J-A10037-19
Here, the trial court imposed restitution in the amount of $10.00 when
it sentenced Appellant on February 3, 2017, and amended the amount of
restitution on February 17, 2017, following a restitution hearing. Appellant’s
timely filed February 13, 2017 notice of appeal, however, deprived the trial
court of jurisdiction to modify restitution after February 13, 2017. See id.
Therefore, we vacate the February 17, 2017 amended sentencing order,
without prejudice to the Commonwealth to seek modification and the trial
court to modify the order of restitution in compliance with Section 1106(c)(3)
upon restoration of jurisdiction in the trial court. See id.
As a second prefatory matter, issues not raised in a Rule 1925(b)
concise statement of errors will be deemed waived. Commonwealth v.
Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting
Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)).
“Rule 1925(b) waivers may be raised by the appellate court sua sponte.”
Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011). The
Rule 1925(b) statement must be “specific enough for the trial court to identify
and address the issue [an appellant] wishe[s] to raise on appeal.”
Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 2006), appeal denied,
591 Pa. 712, 919 A.2d 956 (2007).
Instantly, Appellant failed to raise in his Rule 1925(b) statement any
issue regarding the trial court’s jury instructions. Accordingly, Appellant’s
third issue is waived for purposes of appellate review. See Castillo, supra.
- 19 -
J-A10037-19
In his first issue, Appellant argues his speedy trial rights were violated,
because trial commenced over a year after the Commonwealth filed its
criminal complaint. Appellant contends the trial court incorrectly calculated
the number of days that constitute excusable time. Appellant avers the
Commonwealth’s delay in turning over discovery was not excusable.
Appellant submits discovery was outstanding in May 2016, as of a scheduled
trial date, and again November 2016, immediately before trial commenced.
Appellant concludes the trial court should vacate his convictions and judgment
of sentence and discharge him. We agree some relief is due.
“In evaluating Rule 600 issues, our standard of review of a trial court’s
decision is whether the trial court abused its discretion.” Commonwealth v.
Hunt, 858 A.2d 1234, 1238 (Pa.Super. 2004) (en banc), appeal denied, 583
Pa. 659, 875 A.2d 1073 (2005).
The proper scope of review…is limited to the evidence
on the record of the Rule 600 evidentiary hearing, and
the findings of the trial court. An appellate court must
view the facts in the light most favorable to the prevailing
party.
Additionally, when considering the trial court’s ruling,
this Court is not permitted to ignore the dual purpose
behind Rule 600. Rule 600 serves two equally
important functions: (1) the protection of the
accused’s speedy trial rights, and (2) the protection of
society. In determining whether an accused’s right to
a speedy trial has been violated, consideration must
be given to society’s right to effective prosecution of
criminal cases, both to restrain those guilty of crime
and to deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed
to insulate the criminally accused from good faith
- 20 -
J-A10037-19
prosecution delayed through no fault of the
Commonwealth.
* * *
So long as there has been no misconduct on the part
of the Commonwealth in an effort to evade the
fundamental speedy trial rights of an accused, Rule
600 must be construed in a manner consistent with
society’s right to punish and deter crime.
Id. at 1238-39 (internal citations and quotation marks omitted) (emphasis
added).
Rule 600 provides, in pertinent part:
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial
* * *
(2) Trial shall commence within the following time
periods.
(a) Trial in a court case in which a written complaint is
filed against the defendant shall commence within 365
days from the date on which the complaint is filed.
Pa.R.Crim.P. 600(A)(2)(a). “Rule 600 generally requires the Commonwealth
to bring a defendant…to trial within 365 days of the date the complaint was
filed.” Hunt, supra at 1240. To obtain relief, a defendant must have a valid
Rule 600 claim at the time he files his motion for relief. Id. at 1243.
“The mechanical run date is the date by which the trial must commence
under Rule 600.” Commonwealth v. McNear, 852 A.2d 401, 406 (Pa.Super.
2004).
- 21 -
J-A10037-19
It is calculated by adding 365 days (the time for
commencing trial under Rule 600) to the date on which the
criminal complaint is filed. The mechanical run date can be
modified or extended by adding to the date any periods of
time in which delay is caused by the defendant. Once the
mechanical run date is modified accordingly, it then
becomes an adjusted run date.
Id.
In the context of Rule 600, “excludable time” is differentiated from
“excusable delay” as follows:
“Excludable time” is defined in Rule 600(C) as the period of
time between the filing of the written complaint and the
defendant’s arrest, provided that the defendant could not be
apprehended because his whereabouts were unknown and
could not be determined by due diligence; any period of time
for which the defendant expressly waives Rule 600; and/or
such period of delay at any stage of the proceedings as
results from: (a) the unavailability of the defendant or the
defendant’s attorney; (b) any continuance granted at the
request of the defendant or the defendant’s attorney.
“Excusable delay” is not expressly defined in Rule 600, but
the legal construct takes into account delays which occur as
a result of circumstances beyond the Commonwealth’s
control and despite its due diligence.
Hunt, supra at 1241 (internal citations and footnote omitted). See also
Commonwealth v. Burno, 638 Pa. 264, 313-14, 154 A.3d 764, 793-94
(2017) (explaining excusable delay is not calculated against Commonwealth
in Rule 600 analysis, as long as Commonwealth acted with due diligence at all
relevant times).
Rule 600 requires the trial court to determine whether the
Commonwealth exercised due diligence. Commonwealth v. Selenski, 606
Pa. 51, 59, 994 A.2d 1083, 1088 (2010); Pa.R.Crim.P. 600, Comment. “The
- 22 -
J-A10037-19
Commonwealth bears the burden of proving due diligence by a preponderance
of the evidence.” Burno, supra, at 314, 154 A.3d at 794.
Due diligence is a fact-specific concept that must be
determined on a case-by-case basis. Due diligence does not
require perfect vigilance and punctilious care, but rather a
showing by the Commonwealth that a reasonable effort
has been put forth.
Commonwealth v. Brown, 875 A.2d 1128, 1138 (Pa.Super. 2005), appeal
denied, 586 Pa. 734, 891 A.2d 729 (2005) (quoting Hunt, supra at 1241-42)
(emphasis in original). “Due diligence includes, among other things, listing a
case for trial prior to the run date, preparedness for trial within the run date,
and keeping adequate records to ensure compliance with Rule 600.”
Commonwealth v. Ramos, 936 A.3d 1097, 1102 (Pa.Super. 2007) (en
banc), appeal denied, 597 Pa. 705, 948 A.2d 803 (2008) (citing Hunt, supra
at 1242).
Failure to provide mandatory discovery is not a per se basis
for “excusable delay” of trial. Failure to provide mandatory
discovery, without more, does not toll the running of the
adjusted run date. Moreover, if the delay in providing
discovery is due to either intentional or negligent acts, or
merely stems from the prosecutor’s inaction, the
Commonwealth cannot claim that its default was
“excusable.”
Commonwealth v. Preston, 904 A.2d 1, 12 (Pa.Super. 2006) (en banc),
appeal denied, 591 Pa. 663, 916 A.2d 632 (2007) (internal citations omitted).4
____________________________________________
4Although the Preston Court applied Rule 1013, governing promptness of
municipal court trials, the Court acknowledged Rules 1013 and 600 have
- 23 -
J-A10037-19
Where the court enters a continuance:
If the defense does indicate approval or acceptance of the
continuance, the time associated with the continuance is
excludable under Rule 600 as a defense request.
Significantly, when the defendant signs the
Commonwealth’s motion for postponement and registers no
objection to the postponement…the signed consent without
objection can be interpreted as consent to the new date….
Hunt, supra at 1241 (internal citations omitted). See also Commonwealth
v. Peterson, 19 A.3d 1131, 1137 (Pa.Super. 2011) (en banc), affirmed, 615
Pa. 587, 44 A.3d 655 (2012) (stating: “A joint continuance is excludable”).
“[T]ime attributable to the normal progression of a case simply is not ‘delay’
for purposes of Rule 600.” Commonwealth v. Mills, 640 Pa. 118, 122, 162
A.3d 323, 325 (2017). “[W]here a trial-ready prosecutor must wait…due to
a court calendar, the time should be treated as ‘delay’ for which the
Commonwealth is not accountable.” Id. (emphasis added). It is “inconsistent
with both the letter and spirt of Rule 600” to state “time during which no one
is prepared for trial—or even possibly could be ready—is ‘delay.’” Id.
Delay caused by a co-defendant does not constitute excludable time.
Commonwealth v. Hill, 558 Pa. 238, 261-62, 736 A.2d 578, 590-91 (1999).
Delay associated with a co-defendant may be excusable, however, if the
Commonwealth acted with due diligence and the delay was beyond its control.
Id. at 263, 736 A.2d at 591 (stating: “Even where a [speedy trial]
____________________________________________
similar purposes; and case law interpreting the rules applies equally to both.
Preston, supra at 9.
- 24 -
J-A10037-19
violation…has occurred, the motion to dismiss the charges should be denied if
the Commonwealth exercised due diligence and…the circumstances
occasioning the postponement were beyond the control of the
Commonwealth”) (internal quotation marks omitted).
Generally, “delays caused by pretrial motions constitute excludable time
where the pretrial motion renders the defendant unavailable.” Hill, supra at
250, 736 A.2d at 585.
However, the mere filing of a pretrial motion by a defendant
does not automatically render him unavailable. Rather, a
defendant is only unavailable for trial if a delay in the
commencement of trial is caused by the filing of the pretrial
motion. If a delay is created, in order to establish that the
delay is excludable, the Commonwealth must demonstrate,
by a preponderance of the evidence, that it exercised due
diligence in opposing or responding to the pretrial motion.
Id. at 254-55, 736 A.2d at 587 (internal citations and footnote omitted).
Instantly, the Commonwealth filed the complaint against Appellant and
co-defendant on January 22, 2015. Therefore, the initial Rule 600 mechanical
run date was January 22, 2016. On June 22, 2015, the original discovery due
date, the court granted the Commonwealth an extension to pass discovery till
July 28, 2018. On July 28, 2015, the court granted the Commonwealth’s
request for a continuance for additional time to pass discovery and set a new
discovery date of July 30, 2015. The record indicates the Commonwealth was
not ready to pass discovery on June 22, 2015, and July 28, 2015, and
requested the July 28, 2015 continuance. Thus, the delay between June 22,
2015, and July 30, 2015, did not constitute excludable or excusable delay,
- 25 -
J-A10037-19
and the run date remained January 22, 2016. See Hunt, supra.
Due to the Pope’s visit to Philadelphia in late September 2015, the court
rescheduled trial from the original trial date of September 28, 2015, to
December 14, 2015. While this rescheduling was beyond the
Commonwealth’s control, the record indicates the Commonwealth had still not
passed discovery to Appellant in September 2015 and throughout this delay
period, and the court made no finding of due diligence regarding the
Commonwealth’s efforts to comply with its discovery obligations. See
Selenski, supra; Preston, supra; Hunt, supra. Thus, the record is unclear
whether the 77-day delay from September 28, 2015, to December 14, 2015,
constitutes excusable delay.
On August 21, 2015, the court rescheduled trial from December 14,
2015, to January 11, 2016, a 28-day delay. The court then rescheduled trial
again on December 29, 2015, from January 11, 2016, to January 25, 2016, a
14-day delay. In both instances, the record is silent on why the court
rescheduled trial and whether the Commonwealth was ready to proceed to
trial during these periods. See Mills, supra; Hunt, supra. The record
demonstrates, however, the Commonwealth had still not passed discovery to
Appellant as of December 2015 and January 2016; and the trial court made
no determination whether the Commonwealth had exercised due diligence in
meeting its discovery obligations. See Selenski, supra; Preston, supra.
Thus, we cannot say whether the 42-day delay from December 14, 2015, to
- 26 -
J-A10037-19
January 25, 2016, constitutes excusable delay.
Co-defendant’s counsel was on trial in an unrelated matter and unable
to proceed to trial on January 25, 2016, and the Commonwealth refused to
sever Appellant’s case. As a result, the court rescheduled trial from January
25, 2016, to May 23, 2016. This 118-day delay stems from co-defendant’s
unavailability. See Hill, supra. The record also indicates the Commonwealth
had still not passed discovery to Appellant during this period; and the court
made no due diligence determination with regard to the Commonwealth’s
failure to provide discovery. See Selenski, supra; Preston, supra.
Additionally, the record fails to show whether the Commonwealth was ready
to proceed to trial on January 25, 2016. See Mills, supra; Hunt, supra.
Thus, we cannot tell whether the 118-day delay from January 25, 2016, to
May 23, 2016, constitutes excusable delay.
On May 23, 2016, a rescheduled trial date, Appellant filed his first Rule
600 motion. That same day, the court was presiding over a trial in an
unrelated matter, so the court set the next court date for May 24, 2016. On
May 24, 2016, the court remained on trial, and listed May 25, 2016, as the
next court date. While the two-day delay from May 23, 2016, to May 25,
2016, was beyond the Commonwealth’s control, the record shows the
Commonwealth had still not turned discovery over to Appellant on both dates,
and the court made no finding regarding the Commonwealth’s due diligence.
See Selenski, supra; Preston, supra; Hunt, supra. Thus, we cannot say
- 27 -
J-A10037-19
whether the 2-day delay from May 23, 2016, to May 25, 2016, constitutes
excusable delay.
On May 25, 2016, the court remained on another trial and scheduled a
hearing on Appellant’s Rule 600 motion for June 2, 2016. Also on May 25,
2016, the record indicates the Commonwealth passed “audio discovery” to
Appellant. Following a Rule 600 hearing on June 2, 2016, the court held
Appellant’s motion under advisement until June 22, 2016, when it denied
Appellant relief and rescheduled trial for November 28, 2016. The record does
not illustrate: (i) if the Commonwealth was ready for trial on May 25, 2016,
June 2, 2016, or June 22, 2016; and (ii) why the court rescheduled trial for
November 28, 2016, more than 5 months later. See Mills, supra.
Additionally, while the 187-day delay from May 25, 2016, to November 28,
2016, was beyond the Commonwealth’s control and/or caused by Appellant’s
Rule 600 motion, whether the Commonwealth fully satisfied its discovery
obligation on May 25, 2016, remained an open issue. See Preston, supra.
Rather, it appears the Commonwealth had not turned over all discovery in
May 2016, in light of Appellant’s second Rule 600 motion on November 28,
2016, when the Commonwealth passed to Appellant 15 allegedly new
documents. See id. Further, the court failed to determine whether the
Commonwealth exercised due diligence in its efforts to provide Appellant
discovery. See Selenski, supra; Hunt, supra. Therefore, we cannot tell if
the 187 days between May 25, 2016, and November 28, 2016, amounts to
- 28 -
J-A10037-19
excusable delay.
The following chart summarizes the delays prior to trial:
DATES ACTIVITY DAYS EXCLUDABLE OR ADJUSTED
DELAY EXCUSABLE RUN DATE
6/22/15- Commonwealth not ready to 36 No; 1/22/16
7/28/15 pass discovery; court relisted Commonwealth
discovery date for 7/28/15 not ready
7/28/15- Commonwealth requested 2 No; 1/22/16
7/30/15 continuance to pass discovery; Commonwealth
court granted continuance till requested
7/30/15 continuance to
pass discovery
9/28/15- Court rescheduled trial on 77 Excusable?; 4/8/16?
12/14/15 7/30/15 in light of Pope’s visit to court made no
Philadelphia in late September due diligence
2015; record indicates determination;
Commonwealth had still not no indication of
passed discovery Commonwealth’s
trial readiness
12/14/15 Court rescheduled trial on 28 Excusable?; 5/6/16?
-1/11/16 8/21/15; record silent as to court made no
reason for rescheduling; record due diligence
indicates Commonwealth had determination;
yet to pass discovery no indication of
Commonwealth’s
trial readiness
1/11/16- Court rescheduled trial on 14 Excusable?; 5/20/16?
1/25/16 12/29/15; record silent as to court made no
reason for rescheduling; record due diligence
indicates Commonwealth still determination;
had not passed discovery no indication of
Commonwealth’s
trial readiness
1/25/16- Co-defendant’s counsel 118 Excusable?; 9/15/16?
5/23/16 unavailable for trial; court made no
Commonwealth refused to due diligence
sever; court rescheduled trial for determination;
5/23/16; record indicates no indication of
Commonwealth still had not Commonwealth’s
passed discovery trial readiness
- 29 -
J-A10037-19
5/23/16- Court was on another trial and 1 Excusable?; 9/16/16?
5/24/16 set next court date for 5/24/16; court made no
record indicates Commonwealth due diligence
still had not passed discovery determination;
no indication of
Commonwealth’s
trial readiness
5/24/16- Court was on another trial and 1 Excusable?; 9/17/16?
5/25/16 set next court date for 5/25/16; court made no
record indicates Commonwealth due diligence
still had not passed discovery determination;
no indication of
Commonwealth’s
trial readiness
5/25/16- Court was on another trial and 8 Excusable?; 9/25/16?
6/2/16 set hearing on Appellant’s 1st court made no
Rule 600 motion for 6/2/16; due diligence
Commonwealth passed “audio determination;
discovery” no indication of
Commonwealth’s
trial readiness
6/2/16- Court held Appellant’s Rule 600 20 Excusable?; 10/15/16?
6/22/16 motion under advisement, court made no
following 6/2/16 hearing due diligence
determination;
no indication of
Commonwealth’s
trial readiness
6/22/16- Court rescheduled trial upon 159 Excusable?; 3/23/17?
11/28/16 disposition of Appellant’s 1st Rule court made no
600 motion; Commonwealth due diligence
passed allegedly new discovery determination;
on day trial began, 11/28/16 no indication of
Commonwealth’s
trial readiness
Based upon the foregoing, we are unable to calculate the adjusted run
date for Appellant’s trial. Despite viewing the facts of record in a light most
favorable to the Commonwealth, the record is inconsistent, at best, and the
trial court failed to account for the cause of several continuances or if the
- 30 -
J-A10037-19
Commonwealth was: (i) duly diligent in preparing the case for trial, including
in its efforts to procure and pass discovery to Appellant; and (ii) ready for trial
before the court continued trial. The trial court conducted no due diligence
analysis with respect to whether the Commonwealth had met its discovery
obligations throughout the case. Additionally, the record does not show if and
when the Commonwealth was ready for trial until November 28, 2016, when
trial began. Accordingly, we remand the case for the trial court to conduct a
hearing to clarify the record on: (1) the cause for all continuances; (2) if and
when the Commonwealth was ready to proceed to trial; and (3) whether the
Commonwealth exercised due diligence bringing Appellant to trial. See
Selenski, supra (stating proper action for Superior Court was to remand for
trial court to determine whether Commonwealth exercised due diligence
pursuant to Rule 600, where trial court failed to conduct proper due diligence
analysis in first instance). Upon remand, and contrary to what the court stated
several times on the record, the Commonwealth bears the burden to establish
due diligence throughout the case, e.g., it was prepared for trial, it kept
adequate records to ensure compliance with Rule 600, and its failure to
provide discovery did not stem from intentional or negligent conduct or
inactivity. See Burno, supra; Ramos, supra; Preston, supra.
In his second and remaining issue, Appellant argues he did not enter
the burglarized residence but was merely present outside the residence when
other individuals conducted the home invasion robbery. Appellant submits
- 31 -
J-A10037-19
the trial evidence showed only that he was in the backseat of the getaway car,
stepped out briefly to stretch his legs, and returned to the car while the
burglary occurred. Appellant submits the evidence did not show he
communicated with the perpetrators in furtherance of a conspiracy to
burglarize the residence. Appellant contends the evidence was insufficient to
demonstrate he participated in the home invasion robbery or conspired to
burglarize the residence. Appellant concludes this Court should vacate his
convictions, or, alternatively, remand for a new trial. We disagree on these
grounds.
A challenge to the sufficiency of the evidence implicates the following
legal principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free
to believe all, part or none of the evidence.
- 32 -
J-A10037-19
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting
Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).
The Crimes Code defines robbery, in relevant part, as follows:
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
* * *
(ii) threatens another with or intentionally puts him in
fear of immediate serious bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(ii). See also Commonwealth v. Robinson, 936
A.2d 107 (Pa.Super. 2007), appeal denied, 597 Pa. 705, 948 A.2d 804 (2008)
(stating crime of robbery does not require completion of predicate offense of
theft); Commonwealth v. Everett, 443 A.2d 1142 (Pa.Super. 1982)
(holding defendant’s robbery conviction was supported by sufficient evidence
where defendant aided and abetted cohort in robbery, even though defendant
himself did not carry weapon, employ threats, or cause personal injury).
The Crimes Code defines burglary in relevant part as follows:
§ 3502. Burglary
(a) Offense defined.—A person commits the offense of
burglary if, with the intent to commit a crime therein, the
person:
(1) enters a building or occupied structure, or
separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the
- 33 -
J-A10037-19
time of the offense any person is present[.]
18 Pa.C.S.A. § 3502(a)(1). “A person is guilty of theft if he unlawfully takes,
or exercises unlawful control over, movable property of another with intent to
deprive him thereof.” 18 Pa.C.S.A. § 3921(a).
The Crimes Code defines conspiracy, in part, as follows:
§ 903. Criminal conspiracy
(a) Definition of conspiracy.―A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
* * *
(e) Overt act.―No person may be convicted of
conspiracy to commit a crime unless an overt act in
pursuance of such conspiracy is alleged and proved to have
been done by him or by a person with whom he conspired.
* * *
18 Pa.C.S.A. § 903(a), (e). To sustain a conviction for criminal conspiracy,
the Commonwealth must establish the defendant: (i) entered into an
agreement to commit or aid in an unlawful act with another person or persons;
(ii) with a shared criminal intent; and (iii) an overt act was done in furtherance
of the conspiracy. Jones, supra at 121. Additionally:
- 34 -
J-A10037-19
Circumstantial evidence may provide proof of the
conspiracy. The conduct of the parties and the
circumstances surrounding such conduct may create a web
of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt.
* * *
An agreement can be inferred from a variety of
circumstances including, but not limited to, the relation
between the parties, knowledge of and participation in the
crime, and the circumstances and conduct of the parties
surrounding the criminal episode. These factors may
coalesce to establish a conspiratorial agreement beyond a
reasonable doubt where one factor alone might fail.
Id. at 121-22 (internal citations and quotation marks omitted) (emphasis
added). Nevertheless, circumstances such as an association between alleged
conspirators, knowledge of the commission of the crime, presence at the scene
of the crime, and/or participation in the object of the conspiracy, are relevant
to prove a conspiracy, when “viewed in conjunction with each other and in the
context in which they occurred.” Commonwealth v. Lambert, 795 A.2d
1010, 1016 (Pa.Super. 2002) (en banc), appeal denied, 569 Pa. 701, 805 A.2d
521 (2002).
Instantly, in its opinion, the trial court examined the trial evidence as
follows:
The Commonwealth established that…Appellant, as a co-
conspirator, was jointly and severally liable for robbery. The
evidence showed that at least one of several co-defendants
used a weapon to hold…[V]ictims hostage while taking their
cellular phones and looking for cash and other items inside
[Victim 2]’s apartment. [Victim 3], who was struck in the
back of the head during the crime spree, required medical
attention. Although…Appellant was outside of the
- 35 -
J-A10037-19
apartment during the robbery, he was in [co-defendant]’s
vehicle acting as a “lookout.” The trial surveillance video
showed…Appellant extend his head out of the rear driver-
side door and look southbound on 7th Street. This video also
showed…Appellant exit the vehicle to walk around the
corner onto Tree Street before returning to the car. When
the home invaders exited the apartment with one of the
[V]ictims, …Appellant stepped out of the car as a “lookout”
before getting back in the vehicle. Finally, once the
intruders returned to the Infiniti, [co-defendant] drove his
co-conspirators down 7th Street. Although it was not
established that…Appellant was inside the apartment, the
jury still believed that he was a conspirator to the robbery.
…
* * *
[T]he evidence supports that…Appellant conspired with [co-
defendant] and others to burglarize, rob, and
assault…[V]ictims. Their intentions and conduct were clear.
[A]ppellant was recorded casing the area of the home
invasion and acting as a “lookout” for the home invaders
before fleeing the scene with the perpetrators. …
* * *
[A]ppellant was a co-conspirator to a burglary. [A]ppellant
and other perpetrators waited for [V]ictims to arrive at
[Victim 2]’s residence. When [Victim 1] arrived, the
perpetrators forced him to take them to the apartment
where…[V]ictims were robbed. When the perpetrators
forced their way into the apartment, [Victim 2] and his
guests were inside the premises. The perpetrators then held
[Victim 1], [Victim 2], [Victim 3], and other visitors at gun
point before taking their cash and cell phones. They later
hit [Victim 3] in the head, dragged him outside, and stole
his car keys.
(Trial Court Opinion at 17-19). Viewed in the light most favorable to the
Commonwealth, the trial evidence was sufficient to support Appellant’s
convictions for robbery, burglary, conspiracy to commit robbery, and
- 36 -
J-A10037-19
conspiracy to commit burglary. See Jones, supra. Thus, Appellant’s second
and remaining appellate issue merits no relief.5
Accordingly, the cleanest resolution of this case is to vacate the February
3, 2017 judgment of sentence as well as the February 17, 2017 amended
judgment of sentence and remand for a new hearing on the Commonwealth’s
Rule 600 due diligence throughout its prosecution of this case. Depending on
the outcome of that Rule 600 hearing, the Commonwealth shall have the
opportunity to move to modify the restitution amount in compliance with
Section 1106(c)(3); and the court can resentence Appellant.
Judgment of sentence and amended judgment of sentence vacated;
case remanded with instructions. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/19
____________________________________________
5The trial court mistakenly addressed Appellant’s issue as a challenge to the
weight of the evidence. In his Rule 1925(b) statement and brief on appeal,
Appellant raised a sufficiency of the evidence claim, not a weight issue.
- 37 -
Com. v. Harth, K.
Combined Opinion