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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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.



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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




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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.




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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.




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       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).



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      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

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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

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         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



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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.




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