Com. v. Kolovich, R. ( 2019 )

J-S22020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT ANTHONY KOLOVICH :
:
Appellant : No. 1077 MDA 2018
Appeal from the Judgment of Sentence Entered June 4, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007618-2014
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
JUDGMENT ORDER BY DUBOW, J.: FILED AUGUST 09, 2019
Appellant, Robert Anthony Kolovich, appeals from the Judgment of
Sentence entered in the York County Court of Common Pleas following his
convictions of Theft by Deception and Theft by Failure to Dispose of Required
Funds.1 After careful review, we remand for the trial court to file a Pa.R.A.P.
1925(a) Opinion within sixty (60) days.
On April 4, 2018, a bench trial was held in which the trial court found
Appellant guilty of Theft by Deception and Theft by Failure to Dispose of
Required Funds. On June 4, 2018, the court sentenced Appellant to, inter alia,
time-served to 23 months’ incarceration, followed by three years’ probation.2
Appellant did not file a post-sentence motion.
____________________________________________
1 18 Pa.C.S. § 3922(a)(1) and 18 Pa.C.S. § 4107(a)(6), respectively.
2 For sentencing purposes, the trial court merged the Theft by Failure to
Dispose of Required Funds conviction with the Theft by Deception conviction.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S22020-19
Appellant timely filed a Notice of Appeal. In his Pa.R.A.P. 1925(b)
Statement ordered by the trial court, Appellant raised two issues: (1) the
evidence was insufficient to sustain the Theft by Failure to Dispose of Required
Funds conviction; and (2) the evidence was insufficient to sustain the Theft
by Deception conviction. Regarding his Theft by Deception conviction,
Appellant specifically argued that the Commonwealth did not prove that he
intentionally obtained or withheld property of another by deception through a
false statement or impression. On October 11, 2018, the trial court filed a
“Statement of Lower Court Pursuant to Rule 1925(a)” (“1925(a) Statement”),
stating that “[t]he reasons for the Judgment of Sentence imposed upon
Appellant can be found in the court’s announcement of the verdict,” and
directing this Court to three pages of the Notes of Testimony.
On appeal, Appellant has withdrawn his claim related to his Theft by
Failure to Dispose of Required Funds conviction. He raises only one issue on
appeal: that the evidence was insufficient to sustain his Theft by Deception
conviction because he did not receive or withhold any money through false
statements. Appellant’s Br. at 4.
Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), “upon
receipt of the notice of appeal, the judge who entered the order giving rise to
the notice of appeal, if the reasons for the order do not already appear of
record, shall forthwith file of record at least a brief opinion of the reasons for
the order, . . . or shall specify in writing the place in the record where such
reasons may be found.” The purpose of Rule 1925(a) is to facilitate appellate
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review of a particular trial court order and provide the disputing parties, as
well as the public at large, the legal basis for the trial court’s judicial decision.
Commonwealth v. DeJesus, 868 A.2d 379, 383 (Pa. 2005).
Without a complete Rule 1925(a) Opinion, this Court is unable to
conduct meaningful appellate review and remand is the appropriate remedy.
See id. (case remanded to the trial court for the issuance of an adequate
opinion). “[I]n any case where the trial court fails to prepare an opinion that
addresses the issues upon which it passed and which are raised by a party on
appeal, the net result is the same: the appellate court is deprived of
explication and guidance on those issues from the judicial entity most familiar
with the matter.” Id.
Here, in lieu of explication, the trial court directed this Court to review
pages 61-63 of the Notes of Testimony for its reasoning. However, those
pages provide only three sentences to support its finding that Appellant was
guilty of Theft by Deception beyond a reasonable doubt, none of which address
the specific issue raised, i.e., the lack of evidence showing he intentionally
obtained or withheld property through false statements. N.T. Hearing,
4/4/2018, at 61-62. Thus, the trial court’s 1925(a) Statement deprives this
Court of its guidance on the issue raised on appeal from the judicial entity
most familiar with the matter. DeJesus, 868 A.2d at 383.
Based on the foregoing, we remand this matter to the trial court for
issuance of an Opinion in accordance with Pa.R.A.P. 1925(a). The Opinion shall
address the sufficiency issue raised in Appellant’s Rule 1925(b) Statement
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with respect to the evidence supporting the elements of Theft by Deception
through false statements or impressions in this particular case. Appellant’s
Pa.R.A.P. 1925(b) Statement at 2; see generally Appellant’s Br. The trial
court is to file the Rule 1925(a) Opinion within sixty (60) days of the date of
this Judgment Order.
Case remanded with instructions. Jurisdiction retained.
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