Com. v. Garland, B. ( 2018 )

J-S29025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON GARLAND :
:
Appellant : No. 2992 EDA 2017
Appeal from the Judgment of Sentence August 11, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002646-2016,
CP-51-CR-0004724-2015, CP-51-CR-0004943-2015
BEFORE: PANELLA, J., MURRAY, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 28, 2018
The Majority reviews the merits of Appellant’s challenge to the
discretionary aspects of his sentence even though the certified record in this
case does not contain transcripts from Appellant’s trial or sentencing hearing.
As a review of the certified record does not provide clarification on whether
defense counsel or the trial court was responsible for the transmittal of the
incomplete record to this Court, I would remand for an evidentiary hearing on
this issue. For this reason, I dissent.
It is well-established that “the fundamental tool for appellate review is
the official record of what happened at trial, and appellate Courts are limited
to considering only those facts that have been duly certified in the record on
appeal. Commonwealth v. Williams, 552 Pa. 451, 456, 715 A.2d 1101,
1103 (1998). This Court has emphasized that “[o]ur law is unequivocal that
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29025-18
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.
Bongiorno, 905 A.2d 998, 1000 (Pa.Super. 2006) (en banc) (quoting
Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.Super. 2006) (en
banc)). In Bongiorno, this Court summarized the relevant law as follows:
In Commonwealth v. Preston, 2006 PA Super 170, ¶ 7, 904
A.2d 1 (en banc), we explained that to facilitate an appellant's
ability to comply with this requirement, our Supreme Court
adopted the following procedural rule effective 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. Preston, 2006 PA Super 170,
at ¶ 7.
An appellant should not be denied appellate review if the failure
to transmit the entire record was caused by an “extraordinary
breakdown in the judicial process.” Commonwealth v.
Williams, 552 Pa. 451, 715 A.2d 1101, 1106 (1998). However,
if the appellant caused a delay or other problems in transmitting
the certified record, then he or she is not entitled to relief and the
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judgment of the court below should be affirmed. Id. See
Commonwealth v. Barge, 560 Pa. 179, 743 A.2d 429, 429–30
(1999) (directing that if documents are missing from the certified
record because of a default by court personnel, an appellant is
entitled to have his claims resolved on the merits, but if the
absence of the evidence is attributable to the appellant's failure to
comply with the relevant procedural rules, the claims will be
deemed to have been waived).
Nevertheless, the existence of Rule 1931(d) does not supplant the
legal mandate that places responsibility on the appellant to ensure
that a complete record reaches the appellate court. The purpose
of Rule 1931(d) is to assist appellants by providing notice as to
what was transmitted so that remedial action can be taken if
necessary. Rule 1931(d) does not absolve the appellant from the
duty to see that this Court receives all documentation necessary
to substantively address the claims raised on appeal. We caution
the bench and bar that if the clerk of court fails to satisfy the
requirements of Rule 1931(d) by providing a list of record
documents, it behooves the appellant to investigate the matter.
The failure of counsel or of an unrepresented appellant to make
inquiry does not constitute an “extraordinary breakdown in the
processes of the court.” Whether a default with regard to the
contents of the certified record warrants a finding of waiver is a
question that must be evaluated under the particular facts and
circumstances of a specific appeal.
Bongiorno, 905 A.2d at 1000-1001 (emphasis added). In Williams, our
Supreme Court remanded for an evidentiary hearing to evaluate whether an
“extraordinary breakdown in the judicial process” occurred which prevented
the transmittal of a transcript from the appellant’s suppression hearing to this
Court. Williams, 552 Pa. at 463, 715 A.2d at 1107.
In this case, the Commonwealth argues in its appellate brief that
Appellant’s sentencing claim should be found waived as Appellant failed to
ensure the complete record was transmitted to this Court. The trial court did
not address this issue in its Rule 1925(a) opinion. Appellant’s counsel did
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request the transcripts from Appellant’s sentencing hearing and given this
effort, we cannot definitively conclude whether the transmittal of the
incomplete record was caused by Appellant’s counsel or an “extraordinary
breakdown in the judicial process.”
Accordingly, pursuant to Williams, I would remand this case to the trial
court to determine whether an “extraordinary breakdown in the judicial
process” caused the sentencing transcript to be excluded from the record. For
this reason, I dissent.
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