Com. v. Kolovich, R.

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2019
• Docket: 1077 MDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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