Commonwealth v. Preston

904 A.2d 1, 2006 Pa. Super. 170, 2006 Pa. Super. LEXIS 1609
CourtSuperior Court of Pennsylvania
DecidedJuly 13, 2006
StatusPublished
Cited by523 cases

This text of 904 A.2d 1 (Commonwealth v. Preston) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Preston, 904 A.2d 1, 2006 Pa. Super. 170, 2006 Pa. Super. LEXIS 1609 (Pa. Ct. App. 2006).

Opinion

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 [6]*6was 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 [7]*7document 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.

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Bluebook (online)
904 A.2d 1, 2006 Pa. Super. 170, 2006 Pa. Super. LEXIS 1609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-preston-pasuperct-2006.