Com. v. Robinson, P., Jr.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 DECEMBER 22, 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.R.Crim.P. 600. In a prior memorandum, we
disposed of one aspect of the Commonwealth’s argument and remanded the
case for the trial court to prepare a revised trial court opinion that addressed
the Commonwealth’s remaining claim. The trial court has filed its opinion,
and we now examine the merits of the Commonwealth’s challenge to the
*
Former Justice specially assigned to the Superior Court.
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trial court’s speedy-trial determination pursuant to Rule 600.1 We reverse
and remand.
In our prior memorandum, we outlined the facts and relevant
procedural history as follows.
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, 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
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1
As the trial judge who granted Appellant’s Rule 600 motion for discharge
has since left the bench, the case was reassigned during remand to the
Honorable Harry M. Ness.
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witness, Officer Oberdorf, was not available on that date due to
training relating to his pending installation as a Magisterial
District Justice. 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 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–
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referenced order granting Robinson’s Rule 600 motion and
discharging the criminal charges. The Commonwealth timely
filed the instant appeal.
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1
We refer to the witness as Officer Oberdorf herein.
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.
Commonwealth v. Robinson, __ A.3d__, 2015 WL 6467725 (Pa.Super.
2015) (unpublished memorandum at 1-5).
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) opinion.
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Commonwealth’s brief at 5.2
This appeal implicates the prompt-trial provisions outlined in
Pa.R.Crim.P. 600.3 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).
Rule 600 has dual purposes. Commonwealth v. Roles, 116 A.3d
122, 125 (Pa.Super. 2015). While it is intended to protect a criminal
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2
As noted supra, in our prior memorandum, we rejected the
Commonwealth’s assertion that the trial court was required to include a
contemporaneous statement of its finding of facts in the order discharging
Robinson pursuant to Pa.R.Crim.P. 600. Specifically, we concluded, “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.” Robinson, supra unpublished memorandum at
9. Accordingly, we do not revisit this issue herein.
3
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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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 time 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 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
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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.
As a preliminary matter, we note that 491 days passed between the
date the criminal complaint was filed on April 30, 2013 and the date that
Robinson presented his Rule 600 motion on September 2, 2014. Thirty-two
days of that period were excludable because they were attributable to delays
created by the defendant. Likewise, eighty-two days were arguably
excusable delays that occurred beyond the Commonwealth’s control and
despite its diligence, i.e., delays associated with the magisterial district
court’s schedule and Officer Oberdorf’s magisterial training and obligations
to that court. Thus, even after accounting for all of the excludable time and
days of potentially excusable delay, unless the 191-day period associated
with Autry’s flight is also deemed excusable, the Commonwealth exceeded
the 365-day limit by twelve days. Stated another way, unless the 191-day
period is included in the calculation to determine the adjusted run date, the
Commonwealth would have had to try the case against Robinson by Friday,
August 22, 2014 to comply with Rule 600.
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The Commonwealth argues that the trial court’s Rule 600
determination lacks a foundation in the certified record. The Commonwealth
asserts that the trial court erred in assessing against it for the purposes of
the speedy-trial rule the 191-day delay caused by co-defendant Autry’s
flight. Relying upon its interpretation of the recent amendments to Rule
600, which do not apply to the case at bar, the Commonwealth argues that
all delays are excluded from the computation of the 365-day period unless
the delay is caused by the Commonwealth’s lack of due diligence. Applying
this rationale to the instant case, the Commonwealth reasons that, since it
could not take Robinson to trial while his co-defendant remained a fugitive,
the resulting 191-day delay was not the product of its lack of diligence.
Hence, the Commonwealth posits that, assuming all of the excludable time
and excusable delay discussed supra, the correct adjusted run date was
March 2, 2015. It continues that since it was prepared to prosecute
Robinson during September of 2014, the Rule 600 discharge was
approximately six months premature.
The crux of the Commonwealth’s argument is that it was not required
to sever Robinson’s case in order to try him separately at an earlier date. It
reasons that Robinson was aware of Autry’s evasion and even consented to
the delay so long as it counted against the Commonwealth for purposes of
the Rule 600 computation. The Commonwealth also contends that it utilized
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due diligence in pursuing Autry and bringing Robinson to trial after Autry’s
February 2014 apprehension and June 2014 guilty plea.
Robinson counters that the Commonwealth should not be allowed to
hide behind Autry’s flight in order to justify its failure to bring him to trial in
a timely manner. He opines, “If they fe[lt] it [wa]s absolutely necessary to
try both of the defendant’s [sic] at the same time, the Commonwealth
should [have] notif[ied] the court in order to have the time tolled.”
Robinson’s brief at 6-7. He asserts that the Commonwealth’s on-the-record
statement during the October 2013 hearing that it was attempting to
execute a warrant for Autry’s arrest was ineffective notice because the
Commonwealth did not specifically inform him that Autry was a fugitive or
claim that he was absolutely necessary to trial. Indeed, Robinson claims
that he was not provided notice of Autry’s fugitive status and the associated
delay until September of 2014. He also stresses that he conditioned his
initial acceptance of the Commonwealth’s efforts to locate Autry during
October 2013, “so long as any delay at that point is attributed to the
Commonwealth[.]” N.T., 10/30/13, at 3. Finally, Robinson challenges the
Commonwealth’s assertion that it exercised due diligence in apprehending
Autry or in bringing either defendant to trial once he was in custody.
Robinson acknowledges that the Commonwealth is not required to sever a
case; however, he argues that it should be accountable for the delays
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associated with its refusal and asserts that the Commonwealth’s refusal to
sever the cases under these facts is tantamount to a lack of due diligence.
In rejecting the Commonwealth’s claim that the 191-day period
associated with Autry’s flight should not be attributed to it, the trial court
relied upon our Supreme Court’s holding in Commonwealth v. Hagans,
349 A.2d 470 (Pa. 1978). In Hagans, the Supreme Court addressed
whether a defendant’s failure to object to the delay caused by a co-
defendant should be excluded from the speedy-trial computation. The
Supreme Court concluded that it was not excludable time. Essentially, it
found that requiring a defendant to resist his co-defendant’s dilatory actions
was a distortion of the speedy-trial rules. Specifically, the High Court
reasoned,
In interpreting the provisions of Rule 1100[4] we must not
lose sight that the Rule was promulgated to meet the State's
responsibility to afford an accused a speedy trial. In this context
it must be remembered that the accused has no duty to bring
himself to trial, but rather the State has that obligation, which it
must discharge with reasonable dispatch. Consistent with these
principles, Rule 1100 places the obligation upon the
Commonwealth to commence trial no later than the prescribed
time, unless excused upon a showing of due diligence. The
defense is only charged for delays caused by the defendant
himself or his counsel. To expand upon this obligation by
requiring him to resist dilatory actions by his co-defendants
requires the imposition of a responsibility at odds with the
aforementioned principles.
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4
Rule 600 supplanted the former Pa.R.Crim.P. 1100 when the rules of
criminal procedure were renumbered.
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Id. at 577.
Instantly, the trial court relied upon our Supreme Court’s discussion in
Hagans to conclude that the onus was upon the Commonwealth rather than
Robinson to sever the two criminal cases, and therefore, the 191-day period
associated with Autry’s avoidance could not be attributed to Robinson.
While the trial court is correct in so far as it concluded that Robinson could
not be saddled with delay caused by Autry’s flight, that does not mean ipso
facto that discharge was warranted pursuant to Rule 600. Stated simply,
while the Hagans Court’s overarching proposition that a defendant cannot
be held accountable for a codefendant’s delay for purposes of determining
the Commonwealth’s compliance with the the speedy trial rule is
unassailable, as we discuss below, the case is not dispositive of either the
Rule 600 violation or the Commonwealth’s diligence.
In Commonwealth v. Hill, 736 A.2d 578, 581 (Pa. 1999),5 the
Supreme Court applied the rationale it espoused in Hagans to find that
periods of delay caused by a codefendant was not excludable time pursuant
to the speedy-trial computation. However, that did not end the High Court’s
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5
Commonwealth v. Hill, 736 A.2d 578, 581 (Pa. 1999) was a consolidated
appeal involving two unrelated criminal defendants, Vernon Hill and George
Cornell, who both contended that this Court erred in its review of the trial
court’s application of the speedy trial-rule, which at that time was
Pa.R.Crim.P. 1100. As it relates to the case at bar, the pertinent aspects of
that case stem from the High Court’s review of Cornell’s appeal.
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inquiry. Instead, the Hill Court concluded that in considering whether
discharge was warranted under the speedy-trial rule, the delay associated
with the codefendant would be excused if the Commonwealth acted with due
diligence. Id. at 591. The court reasoned, “However, even where a
violation of Rule 1100 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. Id. (internal quotation marks omitted). Thereafter, the
Supreme Court reviewed the reasons for the various delays and determined
that the Commonwealth exercised due diligence in its effort to comply with
the speedy-trial rule and “that the delay in commencing trial was occasioned
by circumstances beyond the control of the Commonwealth.” Id. at 592.
Relevant herein, this Court subsequently emphasized that the Hill
Court reached its determination despite the fact that the Commonwealth had
opposed the defendant’s motion to sever his prosecution from his dilatory
co-defendant. See Commonwealth v. Jackson, 765 A.2d 389, 393
(Pa.Super. 2000) (“The majority in Hill reached this conclusion despite the
fact, relied upon by the dissent in Hill, that [the defendant] had moved for
severance from the outset and the Commonwealth had opposed the motion).
Significantly, in Jackson, we rejected both the proposition that the trial
court was required to move for severance when it encounters a potential
speedy-trial violation and the notion that the Commonwealth’s objection to
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severance was relevant to whether it exercised due diligence. Id. at 395.
We explained,
Furthermore, it appears as if a majority of our [S]upreme
[C]ourt in Hill implicitly rejected appellant's argument that the
Commonwealth is required to move for a severance when faced
with a possible Rule 1100 violation. [T]he trial court in [Hill] had
found ‘particularly persuasive’ the fact that the Commonwealth
failed to move for severance and had therefore failed to meet its
burden of proving due diligence; nevertheless, a majority of our
[S]upreme [C]ourt affirmed the trial court's reversal.
Id. As the Commonwealth in Jackson had been prepared to go to trial and
never requested any continuances, we concluded that it was duly diligent
despite the fact that it opposed severance in the face of the potential Rule
1100 violations caused by the co-defendant’s request for new counsel.
Accordingly, we concluded that discharge was not warranted.
We adopted the identical rationale in Commonwealth v. Kearse, 890
A.2d 388 (Pa.Super. 2005), and Commonwealth v. Robbins, 900 A.2d
413 (Pa.Super. 2006), and in both cases, we determined that due diligence
did not require the Commonwealth to sever a case in order to avoid violating
Rule 600 where all of the delays were beyond the Commonwealth’s control
and the Commonwealth had been prepared for trial prior to the adjusted run
date. Id. at 417. In Kearse, supra, we stated,
Thus, we do not find that [our case law] mandate[s] that the
Commonwealth sever a case when faced with a potential Rule
600 violation. On the contrary, this Court has held that the
Commonwealth is not required to sever a defendant's case from
a co-defendant's when faced with a possible Rule 600 violation.
Commonwealth v. Jackson, 765 A.2d 389, 395
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(Pa.Super.2000). This holding is in accordance with the
historical posture of the Rule, which recognizes that a
prophylactic application is not in the interest of justice and also
that the Rule must take into account society's interest in the
effective administration of justice.
Id. at 304-395.
Likewise, relying upon our discussion in Kearse, supra, the Robbins
Court concluded, “severance is not required of the Commonwealth when it
faces a possible Rule 600 violation, and the trial court should not have
factored the refusal to sever in its Rule 600 analysis.” Robbins, supra at
417. Observing that none of the continuances in that case was attributable
to the Commonwealth and noting that it been prepared to proceed to trial
within the mechanical run date, we concluded that the “Commonwealth may
not be charged with failure to exercise due diligence where its own record of
attendance and preparedness throughout the pendency of this case was
never faulted.” Id.
Instantly, Robinson was not brought to trial prior to the adjusted run
date of August 22, 2014, which, consistent with Hagans was not extended
by the 191 days associated with Autry’s flight. Thus, there was a technical
violation of Rule 600. Nevertheless, consistent with our Supreme Court’s
perspective in Hill, supra and our application of those principles in the cases
previously discussed, a technical violation of the speedy-trial rule does not
warrant discharge where the record reveals that the Commonwealth
exercised due diligence. Moreover, the Commonwealth was not required to
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to sever Robinson’s case from Autry’s in order to avoid the Rule 600
violation and the failure to sever is not evidence of a lack of diligence.
Herein, few if any of delays were attributable to the Commonwealth’s
requests for continuances or its inaction. The certified record reveals that
the delays and continuances were the result of the presiding magistrate,
Officer Oberdorf’s unavailability, or Robinson’s inability to proceed. None of
these delays is attributable to a lack of the Commonwealth’s diligence.
Moreover, the Commonwealth entered timely notice of its intent to
consolidate Robinson’s and Autry’s cases for trial, and informed Robinson of
the status of the case at an October 2013 pretrial conference. Robinson did
not object to the consolidation and agreed to the delay on the condition that
it was “attributed to the Commonwealth[.]” N.T., 10/30/13, at 3. However,
the trial court did not address at that point which party would be
encumbered by the delay and it specifically noted that it would address that
issue at a later date. Id. Thus, notwithstanding Robinson’s qualifications,
the Commonwealth’s decision to pursue one consolidated case against both
defendants was neither remiss nor evidence of a lack of diligence.
Autry was apprehended on February 12, 2014. During an April 9,
2014 hearing, the Commonwealth noted that it was still disinclined to sever
the cases and informed Robinson and the trial court that it was waiting for
Autry’s pre-arraignment case to mature procedurally so the defendants
could be tried together. Robinson did not object to the delay or request a
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severance. Thereafter, the Commonwealth was prepared for trial during the
second week of June 2014 but Robinson’s prosecution was delayed by
defense counsel’s unavailability. During the August 2014 trial term, Officer
Oberdorf was unavailable because he was attending to his magisterial court
duties.6
The foregoing reveals that the Commonwealth exercised due diligence
throughout the prosecution of this case. The Commonwealth never
requested a continuance, and the delays associated with the magisterial
court calendar and Officer Oberdorf’s training and obligations to his judicial
position were not caused by the Commonwealth’s actions or omissions.
Moreover, the Commonwealth was prepared to bring Robinson to trial during
June 2014, which was prior to the adjusted run date, but Robinson sought to
continue the case. While this fact is not dispositive, the Commonwealth’s
readiness for trial prior to the adjusted run date is convincing evidence that
it acted with due diligence to comply with Rule 600. Thus, mindful that,
pursuant to Jackson, supra and Robbins, supra, the Commonwealth’s
objection to severing the criminal cases is irrelevant to the due diligence
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6
While there is no information in the certified record concerning the June
and August 2014 trial terms, Robinson stipulated to the Commonwealth’s
statement of the case, subject to two exceptions that are not relevant
herein. As the assertions regarding the June and August trial terms are
articulated in the Commonwealth’s statement of the case, we presume their
validity for the purpose of the due diligence review.
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determination when the Commonwealth was otherwise ready to proceed, we
conclude that the trial court erred in granting Robinson’s Rule 600 motion
based upon the Commonwealth’s reluctance to sever the cases. Stated
another way, as evidenced by the absence of any Commonwealth requests
for continuances and its readiness during the July 2013 preliminary hearing
and the June 2014 trial term, which were were both continued due to
Robinson, the Commonwealth exercised reasonable effort to prosecute
Robinson in a timely fashion notwithstanding its unwillingness to sever the
cases in response to Autry’s flight.
Accordingly, we reverse the trial court order dismissing the criminal
charges and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
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