J-S45015-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
PHILLIP BRANDEN ROBINSON, JR.,
Appellee No. 2116 MDA 2014
Appeal from the Order Entered November 10, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005437-2013
BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.
MEMORANDUM BY BOWES, J: FILED OCTOBER 09, 2015
The Commonwealth of Pennsylvania appeals from the November 10,
2014 order that dismissed the criminal charges against Phillip Branden
Robinson, Jr., pursuant to Pa.P.Crim.P. 600. We remand for the preparation
of a trial court opinion.
We glean the following facts from the affidavit of probable cause that
is included in the certified record on appeal. At approximately 5:00 p.m. on
April 30, 2013, the West Manchester Township Police Department conducted
an undercover operation in the parking lot of an Ollie’s Bargain Outlet
department store in West Manchester. During the sting, then-Police Officer,
*
Former Justice specially assigned to the Superior Court.
J-S45015-15
now-District Justice,1 Jeffrey Oberdorf observed Robinson and Moses Jerome
Autry deliver cocaine to a confidential informant (“CI”) in exchange for pre-
recorded buy money. Robinson was operating the vehicle used to deliver
the cocaine. He was also transporting a five-year-old child who was seated
in the rear of the vehicle. The drug transaction occurred while Robinson,
Autry, and the child were in the vehicle with the CI.
After the transaction, the CI immediately relinquished the cocaine to
police, who stopped Robinson’s vehicle as it attempted to leave the parking
lot. A check of Robinson’s Pennsylvania driver’s license revealed that his
driving privileges had been suspended. Field tests on the suspected
contraband revealed the presence of cocaine, and the officers sent the
substance to the Pennsylvania State Police laboratory for additional testing.
Robinson was arrested immediately and charged with criminal
conspiracy to deliver a controlled substance, possession with intent to
deliver a controlled substance, driving while operating privilege is
suspended, and endangering the welfare of children. The preliminary
hearing was initially scheduled on May 10, 2013; however, the presiding
magistrate postponed the hearing to June 11, 2013. The Commonwealth’s
primary witness, Officer Oberdorf, was not available on that date due to
training relating to his pending installation as a Magisterial District Justice.
____________________________________________
1
We refer to the witness as Officer Oberdorf herein.
-2-
J-S45015-15
Accordingly, the hearing was continued again until July 2, 2013.
Unfortunately, Robinson was not ready to proceed on that date so a twenty-
seven-day continuance was granted until July 29, 2013.
The preliminary hearing occurred on July 29, 2013, and the case was
held over for court. On August 5, 2013, the Commonwealth issued an arrest
warrant for Robinson’s codefendant, Moses Autry, and on August 19, 2013,
notice was entered that the two cases would be consolidated for trial
pursuant to Pa.R.Crim.P. 582. However, Autry fled the jurisdiction, and on
August 24, 2013, the arrest warrant was converted to a fugitive warrant. At
an ensuing pretrial conference, Robinson’s attorney stated that Robinson did
not object to the continued delay pending Autry’s apprehension “as long as
any delay . . . is attributed to the Commonwealth[.]” N.T., 10/30/13, at 3.
The trial court responded, “All right, then we’ll deal with who takes what
time at a later date.” Id.
Autry remained a fugitive until February 12, 2014. As neither party
had sought to sever the cases in the interim, Autry’s flight resulted in 191
days of delay for the purposes of determining the Commonwealth’s
compliance with Rule 600. The certified record does not disclose whether
the Commonwealth advised Robinson of Autry’s apprehension before April
-3-
J-S45015-15
2014, but, for various reasons, Appellant’s case remained on the trial docket
until September 8, 2014, a total of 208 additional days of delay.2
On September 2, 2014, Robinson filed a motion to dismiss the criminal
charges under Rule 600. On September 8, 2014, the date scheduled for
trial, the trial court held oral argument regarding Robinson’s motion. The
focus of the discussion was whether the 191-day delay caused by Autry’s
flight should be attributed to the Commonwealth. The trial court did not
render a decision at the close of argument. Instead, it provided Robinson
additional time to file a memorandum and present case law to support his
position that the delay should be included in the Rule 600 computation.
Robinson failed to file a memorandum as part of the certified record.3
Nevertheless, on November 10, 2014, the trial court entered the above–
____________________________________________
2
Five of the 208 days are excludable delay and twenty-nine days were
potentially excusable delay as a result of Officer Oberdorf’s unavailability to
testify due to his obligations to the magisterial district court. On June 17,
2014, Autry pled guilty to the only criminal charge leveled against him under
the consolidated criminal action number, one count of possession with intent
to deliver. Robinson’s case was not called for trial until nearly three months
later.
3
In his brief, Robinson asserts that he submitted a memorandum to the trial
court via e-mail, with a copy to the prosecuting attorney, on September 19,
2014. Robinson appended to his brief a copy of the e-mail but omitted the
three exhibits that were referenced therein. While the Commonwealth
neither concedes nor contests that it received Robinson’s e-mail, it highlights
that, since the document was not filed with the trial court, it is not included
in the record certified for appellate review.
-4-
J-S45015-15
referenced order granting Robinson’s Rule 600 motion and discharging the
criminal charges. The Commonwealth timely filed the instant appeal.
The Commonwealth complied with the trial court’s order to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Rule 1925(b) statement asserted:
1. The trial court erred in granting the defendant’s [R]ule 600
motion without including a contemporaneous statement of
findings of fact.
2. As there are no contemporaneous findings of fact, based
upon the record of the [R]ule 600 hearing, and the history of this
case, the [t]rial [c]ourt erred in granting the defendant’s [R]ule
600 motion.
Commonwealth’s Rule 1925(b) Statement of Errors, 12/30/14, at 1.
Upon review of the Rule 1925(b) statement, the trial court interpreted
the Commonwealth’s second issue as cryptic iteration of the first issue.
Thus, the trial court’s Rule 1925(a) opinion addressed only the procedural
aspect of its November 10, 2014 order, i.e., whether it was required to
proffer a contemporaneous statement of its finding of facts. Significantly, in
determining that “the Commonwealth violated Rule 600 because it failed to
exercise due diligence to bring the case to trial within 365 days[,]” the trial
court did not set forth its Rule 600 calculation, explain its assessment of the
191-day delay, or provide any analysis relating to the Commonwealth’s lack
of diligence in bringing Robinson to trial.
-5-
J-S45015-15
On appeal, the Commonwealth presents the following issues for our
review:
I. The trial court erred in granting the defendant’s Rule 600
motion based on the record and the history of the case in light of
the trial court’s lack of fact finding.
II. The trial court erred by failing to include a
contemporaneous statement of finding of fact with its order, or
subsequently in its 1925(a).
Commonwealth’s brief at 5.
This appeal implicates the prompt-trial provisions outlined in
Pa.R.Crim.P. 600.4 The relevant considerations are as follows:
In evaluating Rule 600 issues, our standard of review of a trial
court's decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record, discretion is
abused.
Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa.Super. 2007) (en
banc).
____________________________________________
4
Effective July 1, 2013, our Supreme Court adopted a new Rule 600 that
reflects prevailing case law. See Pa.R.Crim.P. 600, Comment. As the
Commonwealth filed the criminal complaint in this case prior to the effective
date of the revisions, the former rule guides our review. See
Commonwealth v. Brock, 61 A.3d 1015, 1016 n. 2 (Pa. 2013).
-6-
J-S45015-15
Rule 600 has dual purposes. Commonwealth v. Roles, 116 A.3d
122, 125 (Pa.Super. 2015). While it is intended to protect a criminal
defendant’s rights to a speedy trial, it is also designed to protect society’s
interest by prosecuting criminal conduct. Id. The pertinent version of Rule
600 requires the Commonwealth to try a criminal defendant within 365 days
from the date that the criminal complaint is filed. See Former Rule
600(A)(3) (effective until July 1, 2013). If the Commonwealth fails to bring
the criminal defendant to trial within the pertinent period, the defendant
“may apply to the court for an order dismissing the charges with prejudice
on the ground that this rule has been violated.” Former Rule 600(G)
(effective until July 1, 2013). “To determine whether dismissal is required
under Rule 600, a court must first calculate the ‘mechanical run date,’ which
is 365 days after the complaint was filed.” Commonwealth v. Goldman,
70 A.3d 874, 879 (Pa.Super. 2013). Thereafter, an adjusted run date is
calculated by adding excludable and excusable delay to the mechanical run
date. Id. Periods of delay caused by the defendant are excluded from the
speedy-trial computation. See Former Rule 600(C)(1)-(3) (effective until
July 1, 2013). Excusable delay is a judicial construct that encompasses a
variety of situations where the delay was outside of the Commonwealth’s
control. We have stated, “[e]xcusable delay is delay that occurs as a result
of circumstances beyond the Commonwealth’s control and despite its due
diligence.” Goldman, supra at 879. We further explained, “due diligence is
-7-
J-S45015-15
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.” Ramos, supra at 1102. Finally, mindful of the Rule’s dual
purposes, where “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 1100.
The crux of this case is whether the trial court erred in assessing
against the Commonwealth for the purposes of the speedy trial rule the 191-
day delay attributed to co-defendant Autry’s flight, Officer Oberdorf’s
unavailability, and the non-excludable portion of the ensuing delay in
bringing Robison to trial following Autry’s capture. Unfortunately, the trial
court declined to address the ultimate question regarding the aptness of
Robinson’s Rule 600 discharge, even though the Commonwealth raised that
substantive issue in its Rule 1925(b) statement. In Commonwealth v.
McBride, 957 A.2d 752 (Pa.Super. 2008), this Court stressed the
importance of a trial court’s adherence to Rule 1925(a). We explained:
In order to conduct a thorough and proper review on
appeal, an opinion explaining the reasoning behind the trial
court's decisions is advantageous.
The absence of a trial court opinion poses a
substantial impediment to meaningful and effective
appellate review. Rule 1925 is intended to aid trial
-8-
J-S45015-15
judges in identifying and focusing upon those issues that
the parties plan to raise on appeal. Rule 1925 is thus a
crucial component of appellate process.
Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631, 636
(2002). Rule 1925 directs the trial courts to provide an opinion
as to the issues the appellant will raise, and give the appellate
court records amenable to meaningful appellate review.
Id. at 758 (select citations and quotations omitted).
Instantly, the trial court’s Rule 1925(a) opinion addressed only the
Commonwealth’s unconvincing procedural claim pertaining to whether the
court was required to include a contemporaneous statement of its finding of
facts in the order discharging Robinson pursuant to Rule 600. Trial Court
Opinion, 2/4/15, at 2-3. We agree with the trial court’s determination that it
was under no obligation to file a statement of facts contemporaneously with
the order granting Rule 600 relief, and we find that the Commonwealth’s
meager argument to the contrary is unconvincing. Accordingly, we reject
the procedural aspect of the Commonwealth’s challenge.
However, the trial court’s characterization of the second issue leveled
in the Commonwealth’s Rule 1925(b) statement is incorrect. As noted, the
Commonwealth asserted, “As there are no contemporaneous findings of fact,
based upon the record of the [R]ule 600 hearing, and the history of this
case, the [t]rial [c]ourt erred in granting the defendant’s [R]ule 600
motion.” See Rule 1925(b) Statement of Errors Complained of on Appeal,
12/30/14, at 1. Although artlessly drafted, a plain reading of the foregoing
-9-
J-S45015-15
assertion demonstrates that the Commonwealth did, in fact, challenge the
merits of the trial court’s Rule 600 determination as lacking a foundation in
the certified record.
Since the trial court declined to address the merits of the
Commonwealth’s substantive challenge to the court’s Rule 600
determination, it did not examine the precise issue that presently confronts
this Court on appeal. Thus, mindful of our discussion in McBride, supra,
regarding the importance of the trial court’s rationale in performing
meaningful appellate review, we remand this matter for the preparation of a
Rule 1925(a) opinion that addresses the substantive issue raised in the
Commonwealth’s Rule 1925(b) statement. To the extent that the trial
court’s analysis relies upon Robinson’s September 2014 e-mail in support of
a Rule 600 discharge, we direct the trial court to order Robinson to file that
document under the above-captioned criminal action number so that it can
be transmitted to this Court as a supplement to the certified record on
appeal.
Case remanded for the preparation of an opinion pursuant to Pa.R.A.P.
1925(a) within thirty days of the date of this memorandum and, if
necessary, to supplement the certified record. Jurisdiction retained.
- 10 -
Com. v. Robinson, P., Jr.
Combined Opinion