Commonwealth v. Lear

COMMONWEALTH OF PENNSYLVANIA v. JASON ANDREW LEAR Appellant

J-S71007-19

No. 376 EDA 2018

SUPERIOR COURT OF PENNSYLVANIA

NOVEMBER 13, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence December 20, 2017

In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007815-2016

BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:

Jason Andrew Lear appeals from his judgment of sentence of one to two years of imprisonment followed by five years of probation, imposed after he was convicted by a jury of theft by unlawful taking and by a judge of related summary offenses. After careful consideration, we reverse Appellant's judgment of sentence, vacate his conviction, and reverse the order denying his motion to dismiss.

On March 10, 2016, at 1:23 a.m., Chester City police officer William Murphy observed Appellant and co-defendant Anthony Gomez trespassing on the property of Murphy Ford, a car dealership. As Officer Murphy approached in his police cruiser, he observed Appellant and Mr. Gomez stealing taillights from pick-up trucks. Appellant and Mr. Gomez attempted to flee, but they were arrested a short distance away and charged with theft by unlawful taking and related charges. In total, the two men stole the taillights from four vehicles, which were valued at $2,500 each and were damaged when recovered at the scene.

A preliminary hearing was scheduled for March 23, 2016. On that date, the magisterial district judge cancelled the preliminary hearing and rescheduled it for May 11, 2016, due to a conflict between counsel for Appellant and his co-defendant. The magisterial district court judge attributed the delay to the judiciary. From May 11, 2016 until August 17, 2016, two Commonwealth continuances were granted after necessary witnesses were unavailable for the hearing. On August 17, 2016, the magisterial district court entered a defense continuance after Appellant was not transported to court from prison. On September 12, 2016, the magisterial district court again issued a judicial continuance due to a change in venue. As a result, a new magisterial district judge was appointed and the magisterial docket number changed. On December 13, 2016, Appellant proceeded to his preliminary hearing where all of the charges were held for court.

On February 28, 2017, Appellant appeared for his pretrial conference. At the hearing, counsel indicated that he had received discovery from the Commonwealth, but wanted additional time to review the materials with Appellant and to negotiate a plea deal. The trial court granted trial counsel's request, issuing a defense continuance and listing the case for trial on April 4, 2017. On April 11, 2017, the Commonwealth requested a continuance, which was granted. Trial was rescheduled to April 17, 2017. On April 17, 2017, trial counsel requested a continuance in order to obtain a fingerprint expert. Thetrial court granted the continuance, moving the trial date to May 8, 2017, and allocating the time to Appellant.

On April 28, 2017, Appellant filed a Rule 600 Motion and a motion for discovery. On May 11, 2017, the trial court held a hearing, at which the Commonwealth presented multiple continuance forms. Appellant objected since the Commonwealth did not produce witnesses to testify as to their authenticity. Neither the Commonwealth nor trial counsel cited any authority establishing the admissibility or inadmissibility of the exhibits. The court overruled Appellant's objections, finding that the continuances were standard criminal court forms that were part of the official court record in Appellant's case and, therefore, admissible as business records.

After the court inspected the continuance forms, both sides argued their positions. Appellant contended that none of the continuances should be attributed to him since he did not request them. However, the trial court found accepted two magisterial district judge's continuances as judicial countenances and held that those time periods were excludable. N.T. Rule 600 Hearing, 5/11/17, at 21-22, 26. Trial counsel countered that the Commonwealth had not shown due diligence, therefore, all judicial continuances should count against the Commonwealth. Id. at 27. The trial court stated that it didn't "care whether he likes it or not," before taking the matter under advisement. Id. at 33. The trial court also left the record open for further investigation by the Commonwealth regarding the change of venue. Id. at 34. No additional documents regarding Appellant's Rule 600 motionwere made part of the record. On May 31, 2017, the trial court denied Appellant's motion to dismiss pursuant to Rule 600 without issuing an accompanying opinion.

On the same day, Appellant appeared for a hearing on a discovery motion alleging that recordings of phone calls that Appellant had made from prison were not provided in a readable format. The trial court ordered the Commonwealth to play the calls for trial counsel. The court also granted the Commonwealth's motion to admit Appellant's prior conviction for theft of taillights.

On June 1, 2017, a jury found Appellant guilty of theft by unlawful taking. At sentencing, the Commonwealth sought restitution payable to Murphy Ford in the amount of $3,305.72, but did not present any witnesses or exhibits corroborating that amount. Appellant objected that the Commonwealth had not proven the accuracy of the requested restitution. Appellant's objection was overruled and he was sentenced to pay $3,305.72 in restitution to Murphy Ford. The trial court also sentenced Appellant to one to two years of incarceration followed by five years of probation.

Appellant filed a timely post-sentence motion, which the trial court granted in part, deeming Appellant RRRI eligible and amending his sentence accordingly. The trial court denied the remaining relief Appellant requested in his motion. This timely appeal followed. Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.

After an initial review, we remanded the case to the trial court for the issuance of a supplemental Rule 1925(a) in order to explain its reasoning for denying the Rule 600 motion and whether the Commonwealth showed due diligence. The trial court responded with a filing entitled "supplemental opinion" and a corresponding record. The supplemental record contained paperwork indicating that, although Appellant was eligible to be released on probation in October of 2019, he remained incarcerated at the trial court's request pending the outcome of this appeal. See Order, 10/25/19. We now proceed to consider the merits of Appellant's appeal anew.

Appellant presents the following issues:

I. Whether the lower court erred in denying Appellant's motion to dismiss pursuant to Pa.R.Crim.P. 600, where more than 365 days elapsed from the filing of the criminal complaint and the only purported evidence of excludable time consisted of alleged continuance forms that were not authenticated or properly admitted through a sponsoring witness?

II. Whether the restitution order handed down as part of Appellant's sentence is illegal and an abuse of discretion since it was unsupported by the record, especially where the [C]ommonwealth failed to establish he caused $3,305.72 in damage?

Appellant's brief at 6.

Appellant first alleges that the trial court erred when it denied his Rule 600 motion. He contends further that the trial court abused its discretion in admitting the continuance forms upon which it relied in conducting its Rule 600 analysis. Hence, before we reach the substance of Appellant's Rule 600challenge, we must first decide whether the continuance forms were properly admitted. We review the trial court's evidentiary rulings for an abuse of discretion. See Commonwealth v. Bond, 190 A.3d 664, 667 (Pa.Super. 2018). An "[a]buse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Commonwealth v. Aikens, 990 A.2d 1181, 1184-85 (Pa.Super. 2010). With particular reference to evidentiary issues:

The admission or exclusion of evidence is within the sound discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law. Thus our standard of review is very narrow. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super. 2012). Additionally, we note that we may affirm the trial court's ruling on any basis supported by the record. See Commonwealth v. Johnson, 160 A.3d 127, 144 (Pa. 2017).

At the Rule 600 hearing, Appellant objected to the admission of three Commonwealth exhibits, which contained the continuance forms that had been submitted during the span of Appellant's case. See N.T. Rule 600 Hearing, 5/11/17, at 6; see also Appellant's brief at 14-18. Appellant alleged that these documents were inadmissible because the Commonwealth did not present them through sponsoring witnesses. Id. After argument, the trial court overruled Appellant's objection, finding that these documents werestandard forms regularly used in the course of the business of the criminal court, and thus, admissible as self-authenticating business records. N.T. Rule 600 Hearing, 5/11/17, at 7-9. Appellant countered that the forms could not be admitted as "business records" since the accuracy of the forms could not be authenticated from the face of the document. Id. at 6-9; Appellant's brief at 14-16.

We agree with Appellant that these records lacked the necessary indicia to be admitted as self-authenticating business records.¹ However, our analysis does not end...