Com. v. Butler, C.

• Court: Superior Court of Pennsylvania
• Decided: January 10, 2017
• Docket: 251 MDA 2016
• Status: Unpublished

Opinion

J-S80012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CASSIUS BUTLER

Appellant No. 251 MDA 2016

Appeal from the Judgment of Sentence December 7, 2015 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000137-2014

BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED JANUARY 10, 2017

Cassius Butler appeals from the judgment of sentence, entered in the

Court of Common Pleas of Dauphin County, after he was convicted, following

a stipulated waiver trial, of theft by deception1 and conspiracy to commit

retail theft.2 Specifically, Butler challenges the trial court’s denial of his

motion to dismiss pursuant to Pa.R.Crim.P. 600. For the reasons that follow,

we affirm.

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), citing Commonwealth v. Williams, 715 A.2d

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1 18 Pa.C.S.A. § 3922(a)(1). 2 18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 3929(a)(3). J-S80012-16

1101, 1103 (Pa. 1998). The law of Pennsylvania is well-settled that matters

which are not of record cannot be considered on appeal. Id. See also

Commonwealth v. Bracalielly, 658 A.2d 755, 763 (Pa. 1995);

Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992);

Commonwealth v. Quinlan, 412 A.2d 494, 496 (Pa. 1980). In the

absence of an adequate certified record,3 there is no support for an

appellant’s arguments and, thus, there is no basis on which relief could be

granted. Preston, 904 A.2d at 7.

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). 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). When the appellant fails to conform to the

requirements of Rule 1911, any claims that cannot be resolved in the

absence of the necessary transcripts must be deemed waived for the

purpose of appellate review. Williams, 715 A.2d at 1105. It is not proper

3 The certified record consists of the “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.

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for an appellate court to order transcripts, nor is it the responsibility of this

Court to obtain the necessary transcripts. Id.

Here, Butler filed a motion for transcription of notes of testimony in

which he requested “the notes of testimony from Defendant’s Stipulated

Waiver Trial[,] Plea Agreement and Sentencing held on December 7, 2015.”

Motion for Transcription, 2/3/16, at ¶ 3. However, the motion failed to

request transcription of the Rule 600 motion hearing that occurred

immediately prior to his waiver trial. The sole issue Butler raises on appeal

is that the trial court erred in denying his Rule 600 motion. Because we are

unable to conduct a meaningful review of Butler’s claim without the

transcript of the motion hearing, and because the absence of the transcript

is not attributable to a breakdown in the judicial process, we are constrained

to find Butler’s claim to be waived. See Williams, supra (appellate review

will not be denied if failure to transmit record was caused by extraordinary

breakdown in judicial process).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/10/2017

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