Com. v. Davis, R. ( 2023 )

J-A12023-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROY DAVIS :
:
Appellant : No. 1407 EDA 2022
Appeal from the Judgment of Sentence Entered November 22, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008424-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROY DAVIS :
:
Appellant : No. 1408 EDA 2022
Appeal from the Judgment of Sentence Entered November 22, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008425-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROY DAVIS :
:
Appellant : No. 1409 EDA 2022
Appeal from the Judgment of Sentence Entered November 22, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008426-2017
J-A12023-23
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 17, 2023
Appellant Roy Davis appeals from the judgments of sentence imposed
following his consolidated non-jury trial and convictions for firearm charges
and related offenses. Appellant contends that the trial court erred in denying
his Pa.R.Crim.P. 600 motion to dismiss. Appellant also challenges the weight
of the evidence. For the reasons set forth below, we vacate the order denying
Appellant’s motion to dismiss and the judgments of sentence, and we remand
for a new Rule 600 hearing.
We adopt the trial court’s summary of the facts in this case. See Trial
Ct. Op., 9/7/22, at 3-4. Briefly, on March 9, 2017, the police filed criminal
complaints against Appellant. The Commonwealth subsequently filed criminal
informations at three different trial court docket numbers. The first
information, filed at Docket No. 8424-2017, charged Appellant with possession
of a firearm prohibited, firearms not to be carried without a license, carrying
a firearm in public, possession of an instrument of crime, simple assault,
recklessly endangering another person (REAP), possession of a controlled
substance, and possession of drug paraphernalia.1 The Commonwealth also
charged Appellant with simple assault and REAP at Docket No. 8425-2017.
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1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108, 907(a), 2701(a), 2705, 35 P.S.
§ 780-113(a)(16), and (32), respectively.
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Lastly, the Commonwealth charged Appellant with witness intimidation 2 at
Docket No. 8426-2017.
On April 15, 2019, Appellant filed a motion for relief under Pa.R.Crim.P.
600.3 Following a hearing on June 13, 2019, the Honorable Jeffrey P. Minehart
denied Appellant’s motion to dismiss the charges under Rule 600(A).
However, Judge Minehart did not place any findings of fact and conclusions of
law on the record. See N.T. Mot. Hr’g, 6/13/19, at 13; Trial Ct. Order,
6/13/19.4
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2 18 Pa.C.S. § 4952(a)(1).
3 We note that Appellant’s motion was captioned “motion for immediate
release pursuant to Rule 600(a) [sic] of the Pennsylvania Rules of Criminal
Procedure.” At the June 13, 2019 hearing, Appellant orally moved to dismiss
the charges under Rule 600(A) and did not request release on nominal bail,
which is governed by Rule 600(B). See N.T. Mot. Hr’g, 6/13/19, at 4. The
Commonwealth did not object to Appellant changing his request for relief.
See id.
4 We note that the notes of testimony from the June 13, 2019 hearing are not
included as part of the certified record, but they are included as part of
Appellant’s reproduced record. The Commonwealth did not object to the
accuracy of these notes of testimony. Because “their veracity is not in dispute,
we rely on the copy contained within the reproduced record.” See C.L. v.
M.P., 255 A.3d 514, 518 n.3 (Pa. Super. 2021) (en banc); see also
Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012) (holding that
an appellate court can consider a document that only appears in the
reproduced record when “the accuracy of the reproduction has not been
disputed” (citation omitted)).
Further, the exhibits admitted at the Rule 600 hearing are not included in the
certified record. It is well-established that the “[a]ppellant has the
responsibility to make sure that the record forwarded to an appellate court
contains those documents necessary to allow a complete and judicious
(Footnote Continued Next Page)
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Judge Minehart also presided over Appellant’s non-jury trial on August
13, 2019. Judge Minehart found Appellant not guilty of possession of a
controlled substance and possession of drug paraphernalia, and found him
guilty of all other charges.
Following Judge Minehart’s retirement, the Honorable Mark J. Moore
presided over Appellant’s sentencing hearing on November 22, 2021. The
trial court imposed an aggregate sentence of six to twelve years’ incarceration.
Appellant filed timely post-sentence motions, which Judge Moore denied.5
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assessment of the issues raised on appeal.” Commonwealth v. Wint, 730
A.2d 965, 967 (Pa. Super. 1999) (citations and quotation marks omitted); see
also Pa.R.A.P. 1921, Note (stating that “[u]ltimate responsibility for a
complete record rests with the party raising an issue that requires appellate
court access to record materials” (citation omitted)).
5 Our review of the record indicates that the clerk of courts did not indicate on
the trial court dockets when it served Appellant with a copy of the trial court’s
order or the manner of service. See Commonwealth v. Jerman, 762 A.2d
366, 368 (Pa. Super. 2000) (stating that “[i]n a criminal case, the date of
entry of an order is the date the clerk of courts enters the order on the docket,
furnishes a copy of the order to the parties, and records the time and manner
of notice on the docket” (citations omitted)); see also Pa.R.Crim.P.
114(C)(2)(c); Pa.R.A.P. 108(a)(1), (d)(1). Therefore, the period for taking
an appeal has not begun to run. See Jerman, 762 A.2d at 368; Pa.R.A.P.
903(a). Nevertheless, we will construe Appellant’s notices of appeal as having
been timely filed. See Jerman, 762 A.2d at 368. Further, despite the clerk’s
failure to note service on the docket, Appellant obviously received notice of
the order denying his post-sentence motions because he filed the instant
appeals. Accordingly, we will “regard as done that which ought to have been
done” and address these appeals instead of quashing them as interlocutory.
Commonwealth v. Carter, 122 A.3d 388, 391 (Pa. Super. 2015) (citation
omitted).
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Appellant subsequently filed timely notices of appeal.6 Both Appellant and
Judge Moore complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for our review:
1. Whether the trial court erred in denying Appellant’s Rule 600
motion to dismiss where the proceedings were repeatedly
postponed and trial took place past the run date due to the
Commonwealth’s failure to disclose mandatory discovery in the
form of a video which the Commonwealth introduced into
evidence at trial, the Commonwealth’s failure to proceed in a
timely fashion at the preliminary hearing stage, and the
Commonwealth’s failure to bring its witnesses to court?
2. Did the trial court err in denying the post-sentence motion for
a new trial where the verdict was against the weight of the
evidence because the only testimony was inconsistent and
uncorroborated, the trial court should have found that the
witnesses, many of whom had crimen falsi convictions or were
on active probation, were not credible, and the police did not
recover a gun, leading to the result that anyone can claim
without evidence that someone else had a gun and thereby
trigger enormous consequences for the accused with no
protections against false claims?
Appellant’s Brief at 8 (formatting altered).
In his first issue, Appellant argues that the trial court erred in denying
his motion to dismiss the charges pursuant to Pa.R.Crim.P. 600(A). Id. at 22-
31. Specifically, Appellant claims that when this case was called for trial on
December 10, 2018, the Commonwealth had not provided Appellant with a
copy of a surveillance video, and the trial court issued a continuance. Id. at
24-25. Appellant asserts that his trial, which occurred on August 13, 2019,
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6 On June 13, 2022, this Court consolidated the appeals sua sponte pursuant
to Pa.R.A.P. 513. Order, 6/13/22.
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was 141 days after the Rule 600 adjusted run date. Id. at 25. Appellant
further argues that the Commonwealth failed to prove by a preponderance of
the evidence that it acted with due diligence in bringing Appellant’s case to
trial. Id. at 26-31. Appellant notes that there is no record for this Court to
review other than the trial court docket entries because Judge Minehart did
not place any reasons for his denial of Appellant’s motion to dismiss on the
record and subsequently retired. Id. at 31. Appellant contends that the
present state of the record is sufficient for this Court to conclude that the trial
court erred in denying his motion and that he is entitled to discharge. Id.
Our standard and scope of review of a trial court’s denial of a motion to
dismiss pursuant to Rule 600 is 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.
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.
Commonwealth v. Leaner, 202 A.3d 749, 765-66 (Pa. Super. 2019)
(citation omitted and formatting altered).
Rule 600 provides, in relevant part, “[t]rial in a court case in which a
written complaint is filed against the defendant shall commence within 365
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days from the date on which the complaint is filed.” Pa.R.Crim.P.
600(A)(2)(a). The Rule further states:
For purposes of paragraph (A), periods of delay at any stage of
the proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence. Any other periods of delay shall be excluded from the
computation.
Pa.R.Crim.P. 600(C)(1).
Generally, the Commonwealth must bring a criminal defendant to trial
before the “mechanical run date,” meaning within 365 days from the date
upon which a written criminal complaint is filed. Leaner, 202 A.3d at 766.
Our Supreme Court has explained:
However, the Rule 600 run date may be adjusted pursuant to the
computational directives set forth in Subsection (C) of the Rule.
For purposes of the Rule 600 computation, “periods of delay at
any stage of the proceedings caused by the Commonwealth when
the Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence.” [Pa.R.Crim.P. 600(C)(1)]. “Any other periods of
delay,” including those caused by the defendant, “shall be
excluded from the computation.” Id. When considering a Rule
600 motion, the court must identify each period of delay and
attribute it to the responsible party, then adjust the 365-day tally
to arrive at the latest date upon which the Commonwealth may
try the defendant [(“the adjusted run date”)]. Absent a
demonstration of due diligence, establishing that the
Commonwealth has done everything reasonable within its power
to guarantee that the trial begins on time, the Commonwealth’s
failure to bring the defendant to trial before the expiration of the
Rule 600 time period constitutes grounds for dismissal of the
charges with prejudice. See Pa.R.Crim.P. 600(D)(1).
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Commonwealth v. Barbour, 189 A.3d 944, 947 (Pa. 2018) (some citations
omitted and some formatting altered).
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. Due
diligence includes, inter alia, 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. Periods of
delay caused by the Commonwealth’s failure to exercise due
diligence must be included in the computation of time within which
trial must commence.
Commonwealth v. Martz, 232 A.3d 801, 810-11 (Pa. Super. 2020)
(citations omitted and formatting altered).
Where the trial court fails to make a finding as to whether the
Commonwealth exercised due diligence in bringing the defendant to trial, an
appellate court should remand the case to the trial court to conduct a proper
Rule 600 analysis. See Commonwealth v. Selenski, 994 A.2d 1083, 1089
(Pa. 2010); see also Commonwealth v. Richardson, 2572 EDA 2018, 2020
WL 1922515, at *5 (Pa. Super. filed Apr. 21, 2020) (unpublished mem.)
(concluding that “[w]here a trial court has failed to conduct a proper due
diligence analysis, the correct action for this Court to take is to remand for the
trial court for such analysis” (citation omitted)).7
In Commonwealth v. Smith, 277 A.3d 595 (Pa. Super. 2022) (en
banc), this Court addressed a similar situation in which the record did not
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7 We may cite to non-precedential memorandum decisions filed by this Court
after May 1, 2019 for their persuasive value. See Pa.R.A.P. 126(b).
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contain adequate information for the Court to address the merits of the
defendant’s claims. In that case, the defendant filed a direct appeal
challenging the trial court’s denial of his motion to suppress. Smith, 277 A.3d
at 599-600. However, the suppression judge did not place any factual findings
or legal conclusions on the record. Id. at 603. The suppression judge then
left the bench and was not available to issue a Rule 1925(a) opinion. Id. at
606. Ultimately, the Smith Court concluded that it could not “properly review
the suppression court’s decision, and assess the arguments made by the
parties, based on the record currently before [the Court].” Id. at 605.
In reaching that conclusion, the Smith Court explained:
[W]e have no factual findings or legal determinations by any trial
judge — let alone findings of fact by the suppression judge who
actually viewed the witnesses and ruled on the issues raised
herein — to enable us to complete our task of determining whether
the suppression court’s factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. Clearly, there are factual issues to be determined in
this matter. . . . Thus, remanding for the trial court to make such
factual findings is necessary. Moreover, because the instant trial
judge did not have the benefit of viewing the witnesses firsthand,
a whole new suppression hearing is warranted.
Id. at 606 (citation and quotation marks omitted and emphasis in original).
Accordingly, the Smith Court vacated the defendant’s judgment of
sentence and remanded for the trial court to conduct a new suppression
hearing and issue findings of fact and conclusions of law. Id. The Court
further explained that if the trial court denied the defendant’s motion to
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suppress, it may reimpose the judgment of sentence, but if the trial court
granted the motion, it shall grant the defendant a new trial. Id.8
Here, Judge Minehart denied Appellant’s Rule 600 motion to dismiss
without placing any factual findings or legal conclusions on the record. See
N.T. Mot. Hr’g, 6/13/19, at 13; Trial Ct. Order, 6/13/19. Judge Minehart
subsequently retired and Judge Moore did not address the merits of
Appellant’s Rule 600 issue in his Rule 1925(a) opinion. See Trial Ct. Op. at 6.
As a result, the record does not contain any factual findings or legal
determinations by the trial court regarding which periods of delay are
attributable to each party and whether the Commonwealth acted with due
diligence for this Court to review. See Barbour, 189 A.3d at 947; Leaner,
202 A.3d at 766.
Further, given the present state of the record, we decline Appellant’s
invitation to determine whether the Commonwealth acted with due diligence.
See Martz, 232 A.3d at 810 (explaining that “[d]ue diligence is a fact-
specific concept that must be determined on a case-by-case basis” (citation
omitted and emphasis added)); see also Commonwealth v. Shaw, 247
A.3d 1008, 1017 (Pa. 2021) (reiterating that “[i]t is not an appellate court’s
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8 We note that Smith involved a suppression motion, and when this Court
reverses an order denying a suppression motion, the appropriate relief is a
remand for a new trial “at which the Commonwealth will not be permitted to
introduce the illegally seized evidence.” Commonwealth v. Mattis, 252 A.3d
650, 656 (Pa. Super. 2021) (citation omitted). The instant appeal involves a
Rule 600(A) motion, and if the trial court finds that the Commonwealth
violated Rule 600(A), “the trial court must dismiss the charges.” Leaner, 202
A.3d at 766-67 (citation omitted).
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function to engage in fact-finding” (citation omitted)); but see Selenski, 994
A.2d at 1089 (explaining that “the trial court[] failed to focus its inquiry on
due diligence[,]” and the proper action is a remand for the trial court to
conduct a proper due diligence analysis, but our Supreme Court declined to
do so “[i]n the interest of judicial economy,” and instead chose to “conduct a
due diligence analysis in the first instance” based on the record).
Given the circumstances of the instant case, it is appropriate for this
Court to remand for the trial court to conduct a proper Rule 600 analysis. See
Selenski, 994 A.2d at 1089 (stating that “[w]here the trial court failed to
consider the evidence in the record as it reflected on [the Commonwealth’s]
due diligence” that “the proper action [is] a remand to the trial court to
determine whether the Commonwealth exercised due diligence pursuant to
Rule 600”); see also Richardson, 2020 WL 1922515, at *5. However,
because Judge Minehart has retired, a new Rule 600 hearing before a new
judge is required. Accord Smith, 277 A.3d at 606.
Therefore, we vacate the order denying Appellant’s Rule 600 motion to
dismiss and the judgments of sentence, and remand for a new Rule 600
hearing. Afterwards, the trial court shall place its findings of fact and
conclusions of law on the record. If the trial court finds Rule 600 violations,
then the trial court shall vacate Appellant’s convictions and dismiss the
charges against Appellant with prejudice. See Barbour, 189 A.3d at 947;
Leaner, 202 A.3d at 766-67; see also Commonwealth v. Lear, 290 A.3d
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709, 720-21 (Pa. Super. 2023) (remanding for a Rule 600 hearing).9 If the
trial court does not find Rule 600 violations and denies Appellant’s Rule 600
motion, it may reimpose the judgments of sentence.
Judgments of sentence vacated. Order denying Appellant’s motion to
dismiss vacated. Cases remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2023
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9 As stated above, if Appellant prevails at the new Rule 600 hearing on
remand, he will be entitled to dismissal of the charges. See Barbour, 189
A.3d at 947. Therefore, we decline to address Appellant’s claim that the
verdict is against the weight of the evidence without prejudice for Appellant
to raise this claim on a subsequent appeal if the trial court denies Appellant’s
Rule 600 motion. See Commonwealth v. Rivera, 238 A.3d 482, 495 (Pa.
Super. 2020) (explaining that a successful challenge to the weight of the
evidence results in a new trial).
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