J-S12013-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

ROBERT FISHER 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 781 EDA 2023 

Appeal from the Judgment of Sentence Entered March 1, 2023 

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0001134-1988 

BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E. 

MEMORANDUM BY DUBOW, J.: FILED JUNE 20, 2024 

 Appellant, Robert Fisher, appeals from the March 1, 2023 judgment of 

sentence entered in the Montgomery County Court of Common Pleas following 

his conviction by a jury of first-degree murder. Appellant challenges the denial 

of his motion to dismiss pursuant to Pa.R.Crim.P. 600, motion to dismiss on 

double jeopardy grounds, and oral request for a “voluntary intoxication” jury 

instruction. After careful review, we affirm. 

 The relevant facts and procedural history are as follows. In 1987, 

Appellant was arrested for the 1980 murder of his then-girlfriend Linda 

Rowden. A jury convicted Appellant in 1988, and the court imposed the death 

penalty. Appellant’s conviction was based, in part, on the eyewitness 

testimony of Frieda Sambrick. 

On direct appeal, the Pennsylvania Supreme Court subsequently 

vacated Appellant’s conviction and remanded for a new trial. 
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Commonwealth v. Fisher, 591 A.2d 710 (Pa. 1991). In 1991, a jury again 

convicted Appellant of Ms. Rowden’s murder, and the court again imposed the 

death penalty.1 In 1996, the Pennsylvania Supreme Court vacated Appellant’s 

judgment of sentence and remanded for a new sentencing hearing, 

Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996), after which Appellant 

was again sentenced to death. 

 Following a years-long appeal process, and Post Conviction Relief Act 

and federal Habeas Corpus proceedings, the federal district court issued an 

order awarding Appellant a new trial. Fisher v. Beard, 2018 WL 3594990 

(E.D. Pa. July 25, 2018). On January 17, 2020, the Third Circuit Court of 

Appeals affirmed the district court’s order, directing that a new trial occur 

within 180 days. 

 At a status hearing on February 26, 2020, Appellant’s counsel notified 

the court that she would not be ready for trial in 180 days. The court set the 

trial date for January 11, 2021. 

On October 29, 2020, Appellant filed a motion to bar retrial on double 

jeopardy grounds. In the motion, Appellant asserted that the court should 

bar the Commonwealth from retrying him because the Commonwealth 

intentionally or recklessly “previously allowed false testimony regarding 

identification [and] did not correct the testimony[.]” Motion to Bar Retrial, 

10/29/20, at ¶ 33. Appellant pointed to Ms. Sambrick’s inconsistent testimony 

____________________________________________ 

1

 Ms. Sambrick testified again at Appellant’s 1991 trial. 
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pertaining to the year in which she arrived in the United States from Sweden 

and when she first met Appellant.2 Appellant noted that in her sworn 

testimony, Ms. Sambrick claimed to have known Appellant since 1969, despite 

having provided a written statement to police in 1987 indicating that she did 

arrive in the United States until 1973, and did not meet Appellant until 1980, 

the year of the murder. Appellant claimed that the Commonwealth knew Ms. 

Sambrick’s trial testimony was false because it had her prior written statement 

and yet the Commonwealth allowed this false testimony without correction 

despite its “absolute obligation” to do so. Id. at ¶ 46. Appellant concluded 

that this conduct constituted prosecutorial misconduct and should result in the 

court barring the Commonwealth from retrying him. 

On December 11, 2020, the Commonwealth filed an answer to the 

motion, averring that Ms. Sambrick explained at Appellant’s trial that her prior 

statements contained a few minor inconsistencies because she was scared and 

did not want to get involved in the case. It further averred that Appellant had 

had an opportunity to cross-examine her regarding these inconsistencies at 

trial, and the jury had been able to consider Ms. Sambrick’s credibility. The 

Commonwealth denied that it had recklessly or intentionally elicited false 

testimony, failed to correct false testimony, or engaged in any prosecutorial 

misconduct that would preclude Appellant’s retrial. 

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2

 Appellant asserted that Ms. Sambrick’s testimony at Appellant’s suppression 

hearing and at his 1988 and 1991 trials was inconsistent with a written 

statement she gave to police in 1987. 
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 Appellant’s trial did not take place as scheduled on January 11, 2021, 

due to the statewide judicial emergency declared in response to the COVID19 pandemic.3

 At the time it notified the parties that trial would not occur on 

January 11, 2021, the court did not reschedule the trial for a date certain. 

On January 14, 2021, Appellant filed a motion to dismiss pursuant to 

Pa.R.Crim.P. 600. Appellant sought dismissal on the grounds that the delay 

caused by the pandemic was “past the continuance sought by the defense,” 

was not Appellant’s fault, and violated his right to a speedy trial. Rule 600 

Motion, 1/14/21, at ¶ 39. Appellant also asserted that the Commonwealth 

failed to exercise due diligence in bringing his case to trial by, inter alia, 

appealing the District Court’s order to the Third Circuit Court of Appeals. 

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3

 Due to the COVID pandemic, in March of 2020, the Pennsylvania Supreme 

Court issued emergency orders suspending Rule 600 statewide through June 

1, 2020. In re General Statewide Judicial Emergency, 228 A.3d 1283, 

1287 (Pa. filed March 18, 2020) (per curiam); In re General Statewide

Judicial Emergency, 230 A.3d 1015, 1019 (Pa. filed April 28, 2020) (per 

curiam). When the statewide judicial emergency ended, the Court expressly 

empowered each judicial district’s president judge to enter self-effectuating 

declarations of judicial emergency, which could “[s]uspend statewide rules 

pertaining to the rule-based right of criminal defendants to a prompt trial[.]” 

In re General Statewide Judicial Emergency, 234 A.3d 408 (Pa. filed May 

27, 2020) (per curiam); see Pa.R.J.A. 1952(B)(2)(m). On June 3, 2020, after 

issuing its prior orders declaring a judicial emergency, cancelling all jury and 

non-jury trials, and suspending Rule 600, the Honorable Thomas M. DelRicci, 

President Judge of the Montgomery Court of Common Pleas ordered “that any 

postponement of criminal case scheduling caused by the declaration of this 

juridical emergency, from March 12, 2020 though the expiration of the judicial 

emergency, shall be considered a court postponement and shall constitute 

excludable time for purposes of the application of Rule of Criminal Procedure 

600.” See DelRicci Order, 6/30/20. On August 30, 2021, President Judge 

DelRicci issued an order vacating his June 3, 2020 order effective August 31, 

2021. See DelRicci Order, 8/30/21. 
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The Commonwealth filed an answer to the motion on February 16, 2021, 

asserting that the COVID-19 judicial emergency tolled Rule 600 and that it 

was within its right to appeal the District Court’s decision in good faith. 

Following a hearing on Appellant’s motions to dismiss, on May 10, 2021, 

the trial court denied both Appellant’s motion to dismiss and his motion to bar 

retrial on double jeopardy grounds.4

Appellant’s jury trial commenced on September 20, 2021, and ended in 

a mistrial on September 24, 2021, with a deadlocked jury. 

On December 12, 2022, a new jury trial commenced. At this trial, the 

parties stipulated that Ms. Sambrick had entered the United States on 

February 19, 1973. In support of the charges against Appellant, the 

Commonwealth presented some live testimony and read into the record 

witness testimony from Appellant’s 1988 preliminary hearing and 1991 trial, 

including that of Ms. Sambrick.5 In particular, Ms. Sambrick testified in 1991 

that she knew Appellant in 1980 and had seen him “a lot” of times prior to the 

day of Ms. Rowden’s murder. N.T. Trial, 12/14/22, at 94, 99, 103. She further 

testified that she did not go to the police on the day of the murder to report 

what she had seen because she was afraid and did not want to get involved. 

She testified that initially she identified a different person as the shooter 

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4

 On December 13, 2021, Appellant filed an untimely motion for 

reconsideration of the order denying Appellant’s motion to bar retrial, which 

the trial court denied on June 3, 2022. 

5

 Ms. Sambrick died prior to Appellant’s 2022 trial and was, therefore, 

unavailable to testify. 
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because she wanted to be left alone, but after a couple of weeks she truthfully 

identified Appellant to the assistant district attorney previously assigned to 

the case. 

On-cross examination, Ms. Sambrick testified that she first heard of or 

saw Appellant in 1969. Based on Ms. Sambrick’s testimony at a 1988 

suppression hearing, Appellant’s counsel challenged Ms. Sambrick’s direct 

testimony that she often saw Appellant. 

Appellant did not testify, but the Commonwealth also read into evidence 

his testimony from the 2021 trial. At that trial, Appellant testified that from 

the time he returned from his military service in Vietnam through the date of 

the murder, he was addicted to, among other things, heroin. He testified that 

when he woke up on the day of the murder, he began smoking marijuana and 

drinking beer. He testified that a few hours later he drove to Philadelphia to 

buy heroin and speed, while also drinking wine. He testified that when he 

returned to Norristown, he injected heroin and then went to a bar where he 

continued drinking alcohol. He testified that he then got into Ms. Rowden’s 

car with their mutual friend Richard Mayo and began to get sick from the drugs 

and alcohol. He testified that he exited and walked away from the car and 

then down an alley where he continued throwing up. He testified that he 

never saw Ms. Rowden alive again; about 20 or 30 minutes later he found out 

something had happened to her. Appellant unequivocally denied shooting Ms. 

Rowden. 
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Based on Appellant’s testimony that he had been drinking alcohol and 

using drugs on the day of the murder, he requested that the trial court provide 

the jury with a voluntary intoxication instruction. The Commonwealth argued 

that a voluntary intoxication instruction would only be appropriate if Appellant 

conceded criminal liability, which Appellant did not. The trial court agreed and 

denied Appellant’s request. 

Following its deliberations, the jury convicted Appellant of first-degree 

murder. On March 1, 2023, the trial court imposed a sentence of life 

imprisonment. 

This appeal followed. Both Appellant and the trial court complied with 

Pa.R.A.P. 1925. 

Appellant raises the following three issues on appeal: 

I. Did the lower court err in finding, for the purposes of 

Pa.R.Crim.P. 600, the delay in bringing [Appellant] to trial 

was attributable to the 38th Judicial District Covid-19 Judicial 

Emergency without first determining whether the 

Commonwealth had exercised due diligence in bringing 

[Appellant’s] case to trial? 

II. Did the lower court err in denying [Appellant’s] double 

jeopardy motion based on the Commonwealth’s prior use of 

the false testimony of Frieda Sambrick regarding when she 

entered the country and first met [Appellant] as well as the 

Commonwealth’s failure to correct this false testimony? 

III. Did the lower court err in denying [Appellant’s] request for 

a voluntary intoxication instruction? 

Appellant’s Brief at 3. 
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A.

 In his first issue, Appellant claims that the trial court erred in denying 

his Rule 600 motion to dismiss without first determining whether the 

Commonwealth exercised due diligence in bringing Appellant’s case to trial. 

Id. at 24-27. 

We review the trial court’s disposition of a Rule 600 motion for an abuse 

of discretion. Commonwealth v. Burno, 154 A.3d 764, 793 (Pa. 2017). “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 . 

. . discretion is abused.” Id. (citation omitted). “Our scope of review is limited 

to the record evidence from the speedy trial hearing and the findings of the 

lower court, reviewed in the light most favorable to the prevailing party.” Id. 

(citation omitted). 

In cases where an appellate court remands a matter to the trial court 

for a new trial, Rule 600 requires that trial “shall commence within 365 days 

from the date of the written notice from the appellate court to the parties that 

the record was remanded.” Pa.R.Crim.P. 600(A)(2)(e). Known as the 

mechanical run date, that date may be extended under certain circumstances. 

Commonwealth v. Wendel, 165 A.3d 952, 956–57 (Pa. Super. 2017).6 

When a defendant seeks dismissal based on a violation of Rule 600, the court 

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6 See generally Barker v. Wingo, 407 U.S. 514, 521-22 (1972); U.S. 

CONST. amend. VI. 
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first establishes the mechanical run date, then determines whether any 

periods of delay are excludable and if so, it extends the mechanical run date 

to account for the periods of excludable delay to, thus, arrive at the adjusted 

run date. Id. (applying Pa.R.Crim.P. 600). The Commonwealth must bring a 

defendant to trial by the adjusted run date. Commonwealth v. Roles, 116 

A.3d 122, 125 (Pa. Super. 2015). 

“For purposes of [Rule 600(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 time 

within which trial must commence. Any other periods of delay shall be 

excluded from the computation.” Pa.R.Crim.P. 600(C)(1). Relevantly, the 

time between the filing of a Rule 600 motion to dismiss and disposition of the 

motion is excludable. Commonwealth v. Booze, 953 A.2d 1263, 1277 (Pa. 

Super. 2008). 

Here, the parties agree that the Third Circuit Court of Appeals remanded 

this matter to the trial court on January 17, 2020. Appellant’s Brief at 26, 

Commonwealth’s Brief at 8. Thus, the mechanical run date was 365 days 

later—January 16, 2021. Appellant filed his motion to dismiss on January 14, 

2021, two days before the mechanical run date had even run. Therefore, even 

if the COVID-19 pandemic had not caused a statewide judicial emergency and 

the indefinite postponement of criminal trials, Appellant’s Rule 600 motion to 

dismiss was premature. Accordingly, we discern no abuse of discretion in the 

denial of Appellant’s Rule 600 motion to dismiss. 
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B. 

 In his second issue, Appellant asserts that the trial court erred in 

denying his motion to dismiss on double jeopardy grounds. Appellant’s Brief 

at 28-34. 

 “An appeal grounded in double jeopardy raises a question of 

constitutional law over which our standard of review is de novo.” 

Commonwealth v. Sanchez, 262 A.3d 1283, 1288 (Pa. Super. 2021) 

(citations omitted). 

To the extent that the factual findings of the trial court impact its double 

jeopardy ruling, we apply a more deferential standard of review to those 

findings: 

Where issues of credibility and weight of the evidence are 

concerned, it is not the function of the appellate court to substitute 

its judgment based on a cold record for that of the trial court. The 

weight to be accorded conflicting evidence is exclusively for the 

fact finder, whose findings will not be disturbed on appeal if they 

are supported by the record. 

Id. (citations omitted). 

“[T]he double jeopardy clause prohibits the Commonwealth from 

punishing an accused twice for the same offense.” Commonwealth v. 

Robinson, 166 A.3d 1272, 1276 (Pa. Super. 2017) (internal quotation marks 

and citation omitted). Under the Pennsylvania constitution, double jeopardy 

bars retrial where the prosecutor’s misconduct was intended to provoke the 

defendant into moving for a mistrial or where the prosecutor intentionally or 

recklessly undertakes his conduct to prejudice the defendant to the point of 
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the denial of a fair trial. See Commonwealth v. Johnson, 231 A.3d 807, 

826 (Pa. 2020). 

To trigger double jeopardy, “the defendant must show that the 

prosecutor intentionally withheld information in an attempt to deprive the 

defendant of a fair trial,” Commonwealth v. Lynn, 192 A.3d 194, 200 (Pa. 

Super. 2018) (emphasis omitted), or consciously disregarded a substantial 

risk of that result. Johnson, 231 A.3d at 826. Where there is no such 

evidence, “the proper remedy for the Commonwealth’s failure to disclose 

exculpatory materials should be less than dismissal.” Commonwealth v. 

Burke, 781 A.2d 1136, 1146 (Pa. 2001). A prosecutor’s failure to correct 

false material testimony deprives a defendant of his right to a fair trial and 

may bar subsequent retrial on double jeopardy grounds. Commonwealth v. 

Wallace, 455 A.2d 1187, 1190-92 (Pa. 1983) (awarding the defendant a new 

trial on the ground that the prosecutor failed to correct false testimony from 

the Commonwealth’s principal witness without prejudice to the defendant’s 

right to petition the trial court for discharge on double jeopardy grounds). 

Appellant argues that the Commonwealth’s repeated failure to correct 

Ms. Sambrick’s false testimony regarding the year in which she arrived in the 

United States and the length of time she had known Appellant was, at a 

minimum, reckless and constituted prosecutorial misconduct. Appellant’s 

Brief at 32-33. Appellant avers that the Commonwealth’s failure to correct 

these falsehoods prejudiced him because, as the primary eyewitness to the 
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murder, “the length of time [Ms.] Sambrick had known [Appellant] was a vital 

fact in establishing the credibility of her in-court identification.” Id. at 34. 

Here, Appellant does not claim, let alone demonstrate, that the 

Commonwealth withheld evidence, either intentionally or recklessly. In fact, 

the record shows that, at each stage of this proceeding, Appellant’s counsel 

had access to Ms. Sambrick’s inconsistent statements and the ability to use 

them to impeach her credibility, which counsel did. Contrary to Appellant’s 

assertions, the Commonwealth did not engage in conduct recklessly or 

intentionally designed to provoke Appellant into moving for a mistrial. Rather, 

the Commonwealth merely presented an inconsistent witness who had made 

potentially impeachable statements. Appellant is, thus, not entitled to relief 

on this claim. 

C.

In his final issue, Appellant claims that the trial court erred in failing to 

include a voluntary intoxication charge to the jury. Appellant’s Brief at 34-35. 

It is well settled that “[a] trial court’s denial of a request for a jury 

instruction is disturbed on appeal only if there was an abuse of discretion or 

an error of law.” Commonwealth v. Johnson, 107 A.3d 52, 89 (Pa. 2014) 

(citation omitted). “In reviewing a challenge to the trial court’s refusal to give 

a specific jury instruction, it is the function of this Court to determine whether 

the record supports the trial court’s decision.” Commonwealth v. 

Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) (citation omitted). 
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“The defense of diminished capacity, whether grounded in mental defect 

or voluntary intoxication, is an extremely limited defense available only to 

defendants who admit criminal liability but contest the degree of culpability 

based upon an inability to formulate the specific intent to kill.” 

Commonwealth v. Sanchez, 82 A.3d 943, 977 (Pa. 2013). The mere fact 

of intoxication does not give rise to a diminished capacity defense. See 

Commonwealth v. Blakeney, 946 A.2d 645, 653 (Pa. 2008) (requiring that 

a defendant show that he was “overwhelmed to the point of losing his faculties 

and sensibilities” to prove a voluntary intoxication defense) (citation omitted). 

“To establish a diminished capacity defense, a defendant must prove that his 

cognitive abilities of deliberation and premeditation were so compromised, by 

mental defect or voluntary intoxication, that he was unable to formulate the 

specific intent to kill.” Commonwealth v. Hutchinson, 25 A.3d 277, 312 

(Pa. 2011). Further, “[e]vidence that the accused ingested alcohol or other 

intoxicating drug—without more—does not warrant a voluntary intoxication 

instruction.” Commonwealth v. Padilla, 80 A.3d 1238, 1363 (Pa. 2013). 

Moreover, if “a defendant does not admit that he killed the victim, but rather 

advances an innocence defense, then evidence on diminished capacity is 

inadmissible.” Sanchez, 82 A.3d at 977. 

The trial court denied Appellant’s request for a voluntary intoxication 

jury instruction because the instruction did not apply to the facts presented at 

trial. Trial Ct. Op., 9/6/23, at 12. As set forth above, notwithstanding 

Appellant’s admission that he used a combination of heroin and alcohol on the 
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day of the murder, Appellant unequivocally denied killing Ms. Rowden. For 

this reason alone, the trial court properly denied his request for a voluntary 

intoxication instruction. Moreover, our review of the record reflects that 

Appellant did not provide any evidence that his use of drugs and alcohol 

compromised his cognitive abilities to any degree, let alone a degree that 

would warrant a voluntary intoxication instruction. Accordingly, we discern 

no abuse of discretion in the trial court’s refusal to provide the jury with a 

voluntary intoxication instruction. 

D.

 Having found each of Appellant’s lacking merit, we affirm his judgment 

of sentence. 

Judgment of sentence affirmed. 

Date: 6/20/2024