Com. v. Hawk

• Decision Date: 26 July 1989
• Citation: 386 Pa.Super. 183,562 A.2d 858
• Parties: COMMONWEALTH of Pennsylvania, v. Baxter J. HAWK, Appellant. 520 PHILA. 1987
• Court: Pennsylvania Superior Court

Page 858

562 A.2d 858

386 Pa.Super. 183

COMMONWEALTH of Pennsylvania, v. Baxter J. HAWK, Appellant.

520 PHILA. 1987

Superior Court of Pennsylvania.

Argued Dec. 20, 1988.

Filed July 26, 1989.

Appeal Number 520 Philadelphia 1987 from the Judgment of Sentence of the Court of Common Pleas of Philadelphia [386 Pa.Super. 184] County, Criminal Division 722, 723, 725, 726, 727 and 729 April T., 1984; Eugene H. CLARK, Judge.

Stanley E. Gever, Philadelphia, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and BROSKY, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.

ORDER OF COURT

PER CURIAM.

AND NOW, to wit, this 26th day of July it is hereby ORDERED that the prior Order of this Court denying the Commonwealth's petition to supplement the record and file the notes of testimony of the hearing held on July 8, 1985 before the Honorable Eugene H. Clarke is vacated. The Commonwealth is hereby granted leave to file the transcript of the hearing of July 8, 1985, within twenty (20) days of the date hereof.

CIRILLO, President Judge, files a dissenting opinion.

BROSKY and TAMILIA, JJ., dissent.

CIRILLO, President Judge, dissenting.

I respectfully dissent from the majority's order because I do not believe that, in this case, the Commonwealth has the burden to ensure that the record on appeal is complete. Moreover, I submit that once the Commonwealth has been granted an extension of time in which to bring the defendant to trial, its responsibility to show that it acted with due diligence is complete; this responsibility to act with due diligence does not follow the Commonwealth so as to nullify the rules of appellate procedure governing preparation and transmission of the record. See Pa.R.A.P. 1911-35.

This case is before us pursuant to the per curiam order dated April 15, 1988, wherein this court granted en banc reargument of a panel decision dated February 1, 1988. Hawk was arrested on March 18, 1984, and charged with numerous offenses. Accordingly, the mechanical run date under Pa.R.Crim.P. 1100(a)(2) was September 14, 1984. ¹ On August 23, 1984, the Commonwealth filed a petition for extension under Pa.R.Crim.P. 1100(c) or (d). ² Prior to September 14, 1984, the run date, no hearing had been held. On October 10, 1984, Hawk filed a motion to dismiss under Pa.R.Crim.P. 1100(f). ³ According to a handwritten notation on the record, made by the trial court, a hearing was held on July 8, 1985, at which time the trial court granted the Commonwealth's petition, extended the time in which the Commonwealth had to bring Hawk to trial until November 21, 1985, and denied Hawk's motion to dismiss. On June 12, 1986, Hawk was tried and convicted of robbery, theft by unlawful taking, theft by receiving stolen papers, simple assault, possession of instruments of crime, and unlawful restraint. Post-trial motions were filed, denied by the court, and Hawk was sentenced. Hawk then filed a direct appeal.

Hawk appealed from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County, sentencing him to concurrent terms of imprisonment of five to ten years for robbery, five to twenty-five months for simple assault, and eight to sixty months for unlawful restraint. A panel of this court addressed Hawk's claim that the Commonwealth failed to use due diligence in bringing him to trial and, as a result, he was denied his right to a speedy trial. Specifically, Hawk stated that the hearing on the Commonwealth's petition to extend and on his motion to dismiss was not held until 298 days following the mechanical run date and thus the provisions of Rule 1100 were violated. The panel noted that this court has consistently disapproved of delays in the holding of hearings on petitions for extensions. See e.g. Commonwealth v. Yant, 314 Pa.Super. 442, 461 A.2d 239 (1983). A delay, however, will not be grounds for discharging a defendant absent a showing of prejudice. See Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983). The panel found that Hawk did not suffer any prejudice, notwithstanding Hawk's allegations that if his trial had been held earlier and if his motion to dismiss had been acted upon more expeditiously, he might have been acquitted.

Hawk also claimed that the Commonwealth did not establish a record showing that it acted with due diligence and that the trial was scheduled for the earliest date consistent with the court's business. The panel noted that the Commonwealth has the burden of proving it met the aforementioned requirements, by a preponderance of the evidence. After reference to applicable case law, the panel concluded that because the notes of testimony from the July 8, 1985 hearing were not included in the original record and because the Pa.R.A.P. 1925 opinion filed by the Honorable Eugene H. Clarke could not constitute record judicial notice of the testimony presented at that hearing, the Commonwealth had not sustained its burden of proof and the petition for extension had been improperly granted.

As evidenced by its order, the majority, like the panel, has misconstrued the Commonwealth's burden of proof required to demonstrate compliance with Rule 1100(c), and has incorrectly applied it to matters relating to the preparation and transmission of the record, thereby supplanting Pa.R.A.P. 1911-35. Prior to my review of the applicable rules, however, I note that the standard of review of a trial court's grant of an extension of time pursuant to Pa.R.Crim.P. 1100 has been set forth in Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983). In Lohr, our supreme court stated that "This determination is within the realm of discretion of the trial court and absent an abuse of discretion, a grant of extension of time will not be overruled on appeal". Id. at 139-40, 468 A.2d at 1380.

A review of the rules governing the preparation and transmission of the original record for appellate review and an application of those rules to the present case illustrates that Hawk, and not the Commonwealth, was responsible for ensuring the record was complete. Rule 1911 states in pertinent part (a) General rule. The appellant shall order any transcript required under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 5000.1 et seq., of the Pennsylvania Rules of Judicial Administration (court reporters).

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(d) Effect of failure to comply. If the appellant fails to take the action required by these rules and the Pennsylvania Rules of Judicial Administration for the preparation of the transcript, the appellate court may take such action as it deems appropriate, which may include dismissal of the appeal.

Pa.R.A.P. 1911(a), (d).

Prior to the promulgation of Rule 1911 there was uncertainty about who had the duty to order the transcript from the court reporter as well as who was responsible for payment of the costs of transcription. See Revocation of Restaurant Liquor License v. Commonwealth, Pennsylvania Liquor Control Bd., 64 Pa.Commw. 566, 570, 441 A.2d 491, 493 (1982) (where court held that the "trial judge must compel the court reporter to transcribe the notes of testimony ... without prejudice to his right to recover his fee"); see also 1 Pennsylvania Appellate Practice § 1911:2 (1986). The language of the rule unequivocally places the burden of ordering any transcript required for appellate review upon the appellant:

Rule 1911 now makes clear that it is the duty of the appellant to take all steps necessary to secure preparation of the transcript on appeal. Subsection (d) of the rule reinforces the gravity of this duty, in that it allows the appellate court to take such action as it deems appropriate, including dismissal of the appeal, "[i]f the appellant fails to take the action required by these rules and the Pennsylvania Rules of Judicial Administration for the preparation of the transcript."

1 Pennsylvania Appellate Practice § 1911:2 n. 7 (1986); see also Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986).

Thus, I believe that it is clear that Hawk, as the appellant in this case was responsible for ordering the transcription of the July 8, 1985 hearing from the court reporter. His failure to do so would permit "the appellate court ... [to] take such action as it deems appropriate, ... includ[ing] dismissal of the appeal." Pa.R.A.P. 1911(d). ⁴ A review of the parties' briefs indicates that there was a transcription of the hearing conducted on July 8, 1985; both the Commonwealth and Hawk have made reference to specific pages of this transcript in their briefs. ⁵

Rule 1921 embraces the fundamental principle that an appellate court may consider only the facts that appear in the official record. See Official Note, Pa.R.A.P. 1921; see also Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974); 1 Pennsylvania Appellate Practice § 1921:1 (1986). The rule states the following:

Rule 1921. Composition of Record on Appeal.

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 shall constitute the record on appeal in all cases.

Pa.R.A.P. 1921.

As an added precaution it has been recommended that appellant's counsel request the trial court clerk to review the record before it is transmitted to the appellate court. Further, counsel for appellant may request the original record on appeal as certified by the trial court pursuant to Rule 3114. ⁶ If the appellate court grants such a request, appellant's counsel will be certain the record is complete. See 1 Pennsylvania Appellate Practice § 1921:3 (1986).

Further, the official record is comprised only of those documents which were "filed" in the trial court; that is, filed with the clerk of the court of common pleas or the office of...