In the Int. of: A.B., Appeal of: A.B.

• Court: Superior Court of Pennsylvania
• Decided: August 3, 2018
• Docket: 1412 WDA 2016
• Status: Unpublished

Opinion

J-A20016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.B. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.B., A MINOR : : : : : : No. 1412 WDA 2016

Appeal from the Order Entered August 23, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-JV-0001836-2015

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED AUGUST 3, 2018

A.B. appeals from the disposition order of the Court of Common Pleas

of Allegheny County following his adjudication of delinquency on charges of

involuntary deviate sexual intercourse with a child, aggravated indecent

assault of a child, and sexual assault. After our review, we remand with

instructions.

Following adjudication, trial counsel did not file post-dispositional

motions and, instead, filed a motion to withdraw on September 9, 2016; the

court denied the motion, ordered counsel to file a notice of appeal and then

seek substitution. Counsel filed a timely appeal on A.B.’s behalf, as well as a

court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Counsel again sought to withdraw, and this Court granted counsel’s

request and remanded for appointment of counsel. J-A20016-18

Upon remand, the public defender entered his appearance in this Court

and, on February 21, 2017, the public defender sought remand for the filing

of post-dispositional motions nunc pro tunc, raising trial counsel’s

ineffectiveness and a hearing on that matter. This Court remanded the

matter, and the trial court held an ineffectiveness hearing on October 17,

2017. At the conclusion of that hearing, the court stated that it would take

the matter under advisement and schedule a subsequent proceeding. At that

subsequent proceeding, held on February 20, 2018, the court pronounced its

findings of fact and conclusions of law, ultimately denying A.B.’s

ineffectiveness claim.

Now, in this appeal, A.B. challenges that ruling. However, our review of

the briefs and the record indicate that the notes of testimony from the

February 20, 2018 proceeding, to which both parties and the trial court refer

and which are required for our review, have not been included in the certified

record on appeal. The Commonwealth’s appellee’s brief, filed on June 4, 2018,

sought dismissal on grounds the record was incomplete. Thereafter, on June

13, 2018, Appellant filed a Stipulation to Supplement Certified Record on

Direct Appeal, signed by both the assistant district attorney and the assistant

public defender, to include “[t]he transcript of the ineffectiveness hearing held

on October 17, 2017, which is marked and attached as Exhibit A.” Stipulation

to Supplement Record, 6/13/18, at 2. The October 17, 2017 transcript,

however, had already been made part of the record.

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By finding waiver for failure to request transcription, which the

Commonwealth argues for in its brief, we invite collateral relief and frustrate

the interests of justice and judicial economy. We caution appellant, however,

that 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.

Accordingly, we remand this case to the court of common pleas with

directions that omissions from the record be corrected and a supplemental

record, if available, be certified and transmitted within fourteen (14) days.

See Pa.R.A.P. 1926(b)(1); see also Commonwealth v. Preston, 904 A.2d

1, 6–7 (Pa. Super. 2006) (en banc) (under Rule 1926, appellate court may

direct omission or misstatement be corrected through filing of a supplemental

certified record).

Remanded. Panel jurisdiction retained.

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