Commonwealth v. Kane, 052820 PASUP, 2509 EDA 2018

Docket Nº:2509 EDA 2018
Opinion Judge:STRASSBURGER, J.
Judge Panel:BEFORE: PANELLA, P.J., STRASSBURGER, J. and COLINS, J. Judge Colins joins this memorandum. President Judge Panella concurs in the result.
Case Date:May 28, 2020
Court:Superior Court of Pennsylvania



ROBERT KANE, Appellant

No. 2509 EDA 2018

Superior Court of Pennsylvania

May 28, 2020


Appeal from the Judgment of Sentence Entered July 19, 2018 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006611-2015




Robert Kane (Appellant) appeals from his judgment of sentence of 15 to 30 years' imprisonment imposed on July 19, 2018, following his convictions of rape of a child, involuntary deviate sexual intercourse (IDSI) with a child, aggravated indecent assault of a child, unlawful contact with a minor, corruption of minors, endangering the welfare of a child (EWOC), and indecent assault on a person less than 13 years of age. We affirm.

Appellant is the stepfather of E.S., a minor. From 2011 to 2015, when E.S. was between the ages of six to ten years old, Appellant sexually abused E.S. at their home in Philadelphia. Specifically, Appellant placed his penis in E.S.'s vaginal area, anus, and mouth. He made her swallow his ejaculated semen on several occasions and placed his finger and tongue on E.S.'s vaginal area. Appellant also showed E.S. pornographic images on his cell phone depicting naked women performing oral sex on naked men. On April 8, 2015, a family member contacted the Philadelphia Department of Human Services (DHS) to report the sexual abuse. DHS investigated the report, led by the investigating caseworker Jercina Butler. Caseworker Butler visited the family at their home, and E.S. subsequently disclosed the abuse at a forensic interview.

On May 21, 2015, Appellant was arrested and charged with the aforementioned crimes. The trial court granted the Commonwealth's pretrial motion to revoke bail on February 12, 2016. Appellant appealed, and this Court affirmed the order revoking bail. See Commonwealth v. Kane, 179 A.3d 599 (Pa. Super. 2017) (unpublished memorandum).1

Prior to trial, the trial court twice denied Appellant's motions to dismiss all charges based upon alleged violations of the speedy trial rule, Pa.R.Crim.P. 600(A)(2). After several continuances, Appellant's trial proceeded before a jury in December 2017. The jury found Appellant guilty of all charges. After another series of continuances, Appellant was sentenced on July 19, 2018, to an aggregate sentence of 15 to 30 years of incarceration, followed by 10 years of probation. Appellant timely filed a post-sentence motion, which was denied.

This timely filed appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925. On appeal, Appellant presents three issues. I. Did the trial court err in denying Appellant's motions for dismissal for violation of Pennsylvania Rule of Criminal Procedure 600?

II. Did the Commonwealth deny Appellant his right to due process by making false statements to the [trial] court and the Superior Court that Appellant was still living at home after the sexual allegations between Appellant and E.S. were made known, thus, resulting in Appellant being denied bail, when the facts were that he was living with his mother after the allegations, and a safety assessment was done to show that E.S. was in no danger?

III. Did the [trial] court err in allowing the [DHS] investigator to testify concerning the meaning of an "indicated" report?

Appellant's Brief at 3 (unnecessary articles and capitalization omitted).

Appellant's first issue challenges the denial of his Rule 600 motions. "In evaluating Rule [600] issues, our standard of review of a trial court's decision is whether the trial court abused its discretion." Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en banc). "The proper scope of review ... is limited to the evidence on the record of the Rule [600] evidentiary hearing, and the findings of the [trial] court." Id.

The case at issue here was initiated on May 21, 2015; thus, Rule 600 required that the trial commence within 365 days, or before May 20, 2016. See Pa.R.Crim.P. 600(A)(2)(a). After a series of continuances, Appellant's trial commenced on December 12, 2017. The Rule provides that "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 the time within which trial must commence. Any other periods of delay shall be excluded from the computation." Pa.R.Crim.P. 600(C)(1).

Appellant focuses on two periods of delay he contends should be attributable to the Commonwealth: from September 26, 2016, to May 16, 2017, and from May 16, 2017, to December 11, 2017. Appellant's Brief at 11-14. He claims that the Commonwealth caused the trial to be continued on September 26, 2016, and again on May 16, 2017, by providing discovery to the defense twice on the eve of trial. Id. Therefore, Appellant contends the Commonwealth failed to use due diligence in bringing the case to trial, and the trial court abused its discretion in twice refusing to grant his motions to dismiss. Id.

After review of the record, we conclude that Appellant has waived this issue by failing to ensure that the necessary information for appellate review was included in the certified record. Appellant claims he filed two motions to dismiss pursuant to Rule 600(D)(1): one on January 14, 2016, and a second on August 23, 2017. Only his August 23, 2017 motion appears in the record. The January 14, 2016 motion to which Appellant refers in his brief does not request dismissal based upon Rule 600(D)(1); instead, it is a motion requesting release on nominal bail pursuant to Rule 600(D)(2).2

Most significantly, Appellant failed to request the transcript of any evidentiary hearing on the issue. Appellant refers in his brief to "the evidentiary hearing," but does not provide a citation to notes of testimony of such hearing or even a date. Appellant's Brief at 11. Our review of the certified record does not reveal notes of testimony from any Rule 600 evidentiary hearing, and Appellant's notice of appeal does not include a request to transcribe any such hearing.

"The fundamental tool for appellate review is the official record of the events that occurred in the trial court." Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc) (citation omitted). The certified record consists of "original papers and exhibits filed in the lower court, paper copies of legal papers filed with the prothonotary by means of electronic filing, 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. This Court cannot consider on appeal any items that are not part of the certified record. Preston, 904 A.2d at 6. Our rules place the responsibility of ensuring the record on appeal is complete "squarely upon the appellant and not upon the appellate courts." Id. at 7 (citing Pa.R.A.P. 1931).

Specifically, our rules require that an appellant order and pay for any transcript necessary to permit resolution of the issues the appellant raises on appeal. See Pa.R.A.P. 1911(a). When an appellant fails to order all necessary transcripts in compliance with Rule 1911(a), "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." Preston, 904 A.2d at 7.

Appellant's notice of appeal does not attach a request for a transcript. See Pa.R.A.P. 904(c) (requiring same). Given our standard and scope of review for Rule 600 issues, we are unable to conduct meaningful review of Appellant's Rule 600 claim without the transcript(s) of the evidentiary hearing(s). Since Appellant failed to request any transcripts, the absence of the transcript falls squarely on Appellant and is not attributable to any breakdown in judicial process. Therefore, we deem Appellant's Rule 600 claim to be waived.

Appellant's second issue involves a vague argument surrounding an alleged violation of his due process rights in relation to his bail. Prior to trial, the Commonwealth filed a motion to revoke Appellant's bail. In support of this motion, the Commonwealth averred that when an investigating detective arrived at the family's home, the detective observed Appellant and children in their underwear. In the instant appeal, Appellant insists the averment in the motion was false, and the Commonwealth knowingly relied upon this false statement in support of its motion to revoke bail and in Appellant's appeal from the grant of that motion. Appellant claims he was living with his mother, and not in the family's home with E.S. Appellant suggests certain evidence introduced by the Commonwealth at trial disproves the statement, and contends the Commonwealth violated his due process rights by allowing him to remain incarcerated prior to trial. Appellant argues that this alleged due process violation should result in the vacation of his judgment of sentence.

The lone case Appellant cites in support of his argument, Napue v. Illinois, 360 U.S. 264 (1959), is completely inapposite to both the facts and procedural posture of Appellant's case. Moreover, since Appellant has already been tried and convicted, and is now serving his sentence, we cannot grant Appellant substantive relief on his pretrial claim that his bail should not have been revoked, rendering his claim moot. See Commonwealth v. Dixon, 907 A.2d 468 (Pa. 2006). While sometimes appellate courts will decide similar issues based upon the capable-of-repetition-but-evading-review exception to the mootness doctrine, we decline to do so here. This Court has determined already that the trial...

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