Com. v. Preston

• Decision Date: 13 July 2006
• Citation: 904 A.2d 1
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jameel PRESTON, Appellant.
• Court: Pennsylvania Superior Court

Page 1

904 A.2d 1

COMMONWEALTH of Pennsylvania, Appellee v. Jameel PRESTON, Appellant.

Superior Court of Pennsylvania.

Argued April 27, 2006.

Filed July 13, 2006.

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L. Roy Zipris, Public Defender, Philadelphia, for appellant.

Max Kaufman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: DEL SOLE, P.J.E. and HUDOCK, JOYCE, STEVENS, LALLYGREEN, TODD, GANTMAN, McCAFFERY and PANELLA, JJ.

OPINION BY HUDOCK, J.:

¶ 1 This is an appeal from an order that denied Appellant's petition to the court of common pleas for a writ of certiorari. We affirm.

¶ 2 On July 31, 2003, Appellant was arrested and charged with possession of a controlled substance (crack cocaine).¹ The preliminary arraignment was conducted on August 1, 2003, and the matter was held for trial in the Philadelphia Municipal Court. The Commonwealth was scheduled to turn over discovery documents on September 10, 2003, but the file was incomplete, and the case was continued. The Commonwealth handed over the discovery documents on October 9, 2003, and trial was set for November 6, 2003. However, the Commonwealth was not ready to proceed on the scheduled date because one of its witnesses was unavailable. It also was ascertained that the previously provided discovery was incorrect. Therefore, trial was continued until December 9, 2003. On that date, the Commonwealth once again was unable to provide the proper discovery materials. Finally, on January 5, 2004, the Commonwealth provided appropriate discovery, and trial was set for February 5, 2004.

¶ 3 Thereafter, Appellant presented a motion to dismiss pursuant to Rule of Criminal Procedure 1013(A)(2), as well as a motion for suppression. Both motions were heard on February 5, 2004, by the municipal court judge. The motions were denied and the matter immediately proceeded to trial. Appellant was found guilty and sentenced to serve three to six months of incarceration. Appellant filed a timely petition to the Court of Common Pleas of Philadelphia County seeking a writ of certiorari and requesting a discharge based on the purported violation of Rule 1013. A judge of the court of common pleas heard argument on Appellant's petition on July 19, 2004, and denied relief. This timely appeal followed. The trial court ordered Appellant to file a concise statement of issues raised on appeal pursuant to Rule of Appellate Procedure 1925(b). Appellant timely complied, identifying the following claim: whether the trial court erred in denying the writ of certiorari. See Statement of Matters Complained of on Appeal, 8/13/04, at 1.

¶ 4 On August 24, 2005, a three-judge panel of this Court affirmed the decision of the court of common pleas. However, the panel held that it was unable to reach the merits of Appellant's argument because he had neglected to provide a copy of a transcript needed to ascertain whether the court of common pleas correctly determined that no violation of Rule 1013 occurred in this case. Thereafter, Appellant filed a petition seeking panel reconsideration and/or reargument en banc. We granted reargument and directed the parties to brief and argue the following issue: whether the Superior Court may find a claim to be waived based on counsel's failure to provide a necessary transcript when that transcript was ordered, produced, and incorporated as part of the certified record—but was not transmitted to the appellate court because of a "breakdown in the court system"?

¶ 5 The fundamental tool for appellate review is the official record of the events that occurred in the trial court. Commonwealth v. Williams, 552 Pa. 451, 715 A.2d 1101, 1103 (1998). To ensure that an appellate court has the necessary records, the Pennsylvania Rules of Appellate Procedure provide for the transmission of a certified record from the trial court to the appellate court. Id. The law of Pennsylvania is well settled that matters which are not of record cannot be considered on appeal. Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755, 763 (1995); Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663, 672 (1992); Commonwealth v. Quinlan, 488 Pa. 255, 412 A.2d 494, 496 (1980); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). Thus, an appellate court is limited to considering only the materials in the certified record when resolving an issue. Commonwealth v. Walker, 878 A.2d 887, 888 (Pa.Super.2005). In this regard, our law is the same in both the civil and criminal context because, under the Pennsylvania Rules of Appellate Procedure, any document which is not part of the officially certified record is deemed non-existent—a deficiency which cannot be remedied merely by including copies of the missing documents in a brief or in the reproduced record. Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa.Super.2005); Lundy v. Manchel, 865 A.2d 850, 855 (Pa.Super.2004). The emphasis on the certified record is necessary because, unless the trial court certifies a document as part of the official record, the appellate judiciary has no way of knowing whether that piece of evidence was duly presented to the trial court or whether it was produced for the first time on appeal and improperly inserted into the reproduced record. Simply put, if a document is not in the certified record, the Superior Court may not consider it. Walker, 878 A.2d at 888.

¶ 6 This Court cannot meaningfully review claims raised on appeal unless we are provided with a full and complete certified record. Commonwealth v. O'Black, 897 A.2d 1234, 1240 (2006). This requirement is not a mere "technicality" nor is this a question of whether we are empowered to complain sua sponte of lacunae in the record. In the absence of an adequate certified record, there is no support for an appellant's arguments and, thus, there is no basis on which relief could be granted.

¶ 7 The certified record consists of the "original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court." Pa.R.A.P.1921. Our law is unequivocal that the responsibility rests upon the appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty. Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.Super.2006) (en banc). To facilitate an appellant's ability to comply with this requirement, our Supreme Court adopted the following procedural rule effective as of June 1, 2004:

The clerk of the lower court shall, at the time of the transmittal of the record to the appellate court, mail a copy of the list of record documents to all counsel of record, or if unrepresented by counsel, to the parties at the address they have provided to the clerk. The clerk shall note on the docket the giving of such notice.

Pa.R.A.P.1931(d). As the explanatory comment to Rule 1931 indicates, if counsel (or a party) discovers that anything material has been omitted from the certified record, the omission can be corrected pursuant to the provisions of Rule of Appellate Procedure 1926. Under Rule 1926, an appellate court may direct that an omission or misstatement shall be corrected through the filing of a supplemental certified record. However, this does not alter the fact that the ultimate responsibility of ensuring that the transmitted record is complete rests squarely upon the appellant and not upon the appellate courts. Pa.R.A.P.1931.

¶ 8 With regard to missing transcripts, the Rules of Appellate Procedure require an appellant to order and pay for any transcript necessary to permit resolution of the issues raised on appeal. Pa.R.A.P.1911(a). If a cross-appeal has been taken, the cross-appellant shares the duty to order and pay for the necessary transcripts. Pa.R.A.P.1911(b). When the appellant or cross-appellant fails to conform to the requirements of Rule 1911, any claims that cannot be resolved in the absence of the necessary transcript or transcripts must be deemed waived for the purpose of appellate review. Williams, 715 A.2d at 1105. It is not proper for either the Pennsylvania Supreme Court or the Superior Court to order transcripts nor is it the responsibility of the appellate courts to obtain the necessary transcripts. Id.

¶ 9 In the absence of specific indicators that a relevant document exists but was inadvertently omitted from the certified record, it is not incumbent upon this Court to expend time, effort and manpower scouting around judicial chambers or the various prothonotaries' offices of the courts of common pleas for the purpose of unearthing transcripts, exhibits, letters, writs or PCRA petitions that well may have been presented to the trial court but never were formally introduced and made part of the certified record. Commonwealth v. Blystone, 421 Pa.Super. 167, 617 A.2d 778, 783 n. 4 (1992). If, however, a copy of a document has been placed into the reproduced record, or if notes of testimony are cited specifically by the parties or are listed in the record inventory certified to this Court, then we have reason to believe that such evidence exists. O'Black, 897 A.2d at 1238. In this type of situation, we might well make an informal inquiry to see if there was an error in transmitting the certified record to this Court. Id. We might also formally remand the matter to the trial court to ascertain whether notes of testimony or other documentation can be located and transmitted. Id. If a remand is necessary, it is appropriate to direct the trial court to determine why the necessary documentation was omitted from the certified record. Williams, 715 A.2d at 1107. An appellant should not be denied appellate review if the failure to transmit the entire record was caused by an "extraordinary breakdown in the judicial process." Id. at 1106. However, if the appellant caused a delay or other...