Com. v. Williams, J. ( 2015 )

J-S56034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY MACK WILLIAMS,
Appellant No. 509 MDA 2015
Appeal from the Judgment of Sentence March 3, 2015
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0000873-2013
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 10, 2015
Appellant, Jeffrey Mack Williams, appeals from the judgment of
sentence entered on March 3, 2015, following his non-jury conviction of two
counts of driving under the influence (DUI)1 and related offenses. On
appeal, Appellant claims that the trial court erred in denying his Rule 600
motion. For the reasons discussed below, we affirm.
We take the underlying facts and procedural history in this matter
from the trial court’s December 31, 2013 opinion and our independent
review of the certified record.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(a)(1) and (b).
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On March 4, 2012, Trooper Matthew Lada conducted a
traffic stop of a vehicle [Appellant] was driving. Although
[Appellant’s] operator’s license listed an address of 2010 N. 25 th
Street, Philadelphia, [Appellant] told Trooper Lada that he was
living at 639 Park Avenue in Williamsport. Trooper Lada filed a
criminal complaint against [Appellant] on April 3, 2012, charging
him with [DUI] and summary traffic offenses. A summons was
issued on April 10, 2012, but it was returned unclaimed, and an
arrest warrant was issued on April 19, 2012.
On April 25, 2012, Trooper Lada went to Park Avenue to
attempt to serve the arrest warrant, but he discovered that the
specific address 639 Park Avenue did not exist. Trooper Lada
forwarded the warrant to the Pennsylvania State Police (PSP)
barracks closest to 2010 N. 25th Street in Philadelphia, the
address listed on [Appellant’s] operator’s license.
On July 11, 2012, a corporal at the PSP barracks made a
record entry of the warrant in their file. An attempt to serve the
warrant was made on November 13, 2012, but was not
successful. On January 13, 2013, a warrant letter was mailed to
2010 N. 25th Street. No further efforts were made to locate
[Appellant] until he was arrested on May 16, 2013.[a].
[a] Trooper Lada testified that Williamsport police
apprehended [Appellant] on July 20, [2013], but the
docket transcript from the Magisterial District Judge
indicates that [Appellant’s] preliminary arraignment
was held on May 16, 2013, and he was confined in
the Lycoming Count Prison because he was unable to
post bail until May 28, 2013.
On July 22, 2013, [Appellant] filed his motion to dismiss,
in which he asserted that the Commonwealth failed to exercise
due diligence to locate [him] and to prosecute this matter within
365 days from the date the criminal complaint was filed.
[Appellant] asserted, and at the hearing on his motion provided
documents, that he was charged with DUI on August 27, 2012 in
case 1939-2010 under the name Rashwan Jeffrey Williams, and
incarcerated in the Lycoming County Prison from October 22,
2012 until November 8, 2012. In addition, he was sentenced on
December 4, 2012 and has remained under the supervision of
the Lycoming County Adult Probation office since that date. The
name Rashwan Jeffrey Williams also appears as one of
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[Appellant’s] aliases on his JNET criminal history. Defense
counsel contends that if the police had searched any databases,
they would have discovered that [Appellant] was incarcerated
and under supervision under the alias Rashwan Jeffrey Williams.
(Trial Court Opinion, 12/31/13, at 1-2).
Following a hearing, the trial court denied Appellant’s Rule 600 motion.
On October 13, 2014, the trial court convicted Appellant of the above-
mentioned offenses. On March 3, 2015, the trial court sentenced Appellant
to a term of incarceration of not less than thirty days nor more than six
months. The instant, timely appeal followed. On March 18, 2015, the trial
court ordered Appellant to file a concise statement of errors complained of
on appeal. See Pa.R.A.P. 1925(b). On April 2, 2015, Appellant filed his
Rule 1925(b) statement. On May 14, 2015, the trial court issued a
statement adopting the December 31, 2013 opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following question for our review:
Did the court err when it denied [Appellant’s] motion to
dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600
since the Commonwealth failed to exercise due diligence to
locate [Appellant] when [he] was under the supervision of the
Lycoming County Adult Probation [O]ffice and incarcerated at
the Lycoming County Prison?
(Appellant’s Brief, at 11).2
Appellant claims the trial court erred in denying his motion to dismiss
pursuant to Pennsylvania Rule of Criminal Procedure 600. In evaluating Rule
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2
We note that the Commonwealth elected not to file a brief in this matter.
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600 issues, our standard of review is whether the trial court abused its
discretion. See Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa.
2012). The proper scope of review in determining the propriety of the trial
court’s ruling is limited to the evidence on the record of the Rule 600
evidentiary hearing and the findings of the trial court. See id. In reviewing
this determination, “[a]n appellate court must view the facts in the light
most favorable to the prevailing party.” Commonwealth v. Ramos, 936
A.2d 1097, 1100 (Pa. Super. 2007) (en banc), appeal denied, 948 A.2d 803(Pa. 2008) (citation omitted).
For the reasons discussed below, we find that this claim is waived.
The record reflects that Appellant filed his motion to dismiss on July 22,
2013 and the trial court denied it on December 31, 2013. A hearing took
place sometime between these dates. (See Trial Ct. Op., at 1-2; Appellant’s
Brief, at 14). Neither the trial court nor Appellant ever specifies the date of
the hearing. While the trial court summarizes the evidence elucidated at the
hearing, it does not cite to either the record or any notes of testimony in its
opinion. (See Trial Ct. Op., at 1-6). In his brief, Appellant cites, without
specificity, to notes of testimony and exhibits, none of which are included in
the certified record. (See Appellant’s Brief, at 12-23).3 There are no notes
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3
We note that, in an appendix to his brief, Appellant appends various
documents listed as “Defense Exhibits ## 1-11.” None of those documents
are part of the certified record. “It is well settled that, [f]or purposes of
(Footnote Continued Next Page)
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of testimony included in the certified record and there is no reproduced
record.4 Thus, we are unable to substantiate Appellant’s contentions. 5
It is the appellant’s responsibility to make certain that the certified
record contains all items necessary to ensure that this Court is able to
review his claims. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.
Super. 2008) (en banc) (holding that claim that victim’s execution of general
release barred imposition of restitution was waived where appellant failed to
include release in certified record). This Court has stated:
It is black letter law in this jurisdiction that an appellate
court cannot consider anything which is not part of the record in
the case. It is also well-settled in this jurisdiction that it is
Appellant’s responsibility to supply this Court with a complete
record for purposes of review. A failure by Appellant to insure
that the original record certified for appeal contains sufficient
_______________________
(Footnote Continued)
appellate review, what is not of record does not exist. Further, this Court
has regularly stated that copying material and attaching it to a brief does not
make it a part of the certified record.” Commonwealth v. Holley, 945
A.2d 241, 246 (Pa. Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008)
(citations omitted).
4
We note that, while Appellant included a request for transcripts with his
notice of appeal, he did not specify which transcripts he sought and did not
include the dates in question. (See Request for Transcripts, 3/17/15, at
unnumbered page 1).
5
In an attempt to ascertain whether trial court personnel had inadvertently
failed to forward the transcript, this Court contacted the trial court and
requested that they search for it. This Court’s request was hampered by the
lack of a specific date for the hearing. The trial court searched for a period
of approximately one month and was unable to locate any transcript or even
confirm that a speedy trial hearing took place between August and
December 2013.
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information to conduct a proper review constitutes waiver of the
issue sought to be examined.
Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007), appeal
denied, 940 A.2d 363 (Pa. 2008) (citations and quotation marks omitted).
In Commonwealth v. O’Black, 897 A.2d 1234 (Pa. Super. 2006), we noted
that the trial transcript was not in the reproduced or certified record and that
our attempt to find the transcript had been unavailing. In finding waiver, we
stated,
We note that this is a far different situation than where there are
notes of testimony in the reproduced record, or the notes are
referred to by the parties or listed in the record inventory sent to
this Court, when we know the transcript or notes of testimony
exist but are not in the certified record. In those situations, we
well might make an informal inquiry to the trial court to see if
there was an error in transmission to this Court or otherwise
remand to see if the transcript or notes of testimony can be
located and transmitted. Indeed, this is not a situation where
[the appellant] alleged error on the part of the clerk in
transmitting the record.
Id. at 1238.
Here, we have been unable to ascertain even the date of the speedy
trial hearing. It is not listed in the docket and the trial court does not cite to
any notes of testimony. The notes of testimony are not listed in the record
inventory. While Appellant does cite to notes of testimony in his brief, his
citation format is so vague that we are unable to ascertain what notes of
testimony he refers to. Our attempts to locate the missing transcript have
been so unsuccessful that we are unable to receive confirmation from the
trial court that it held a speedy trial hearing within the specific period. Given
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this, we have no hesitation in finding that Appellant waived his speedy trial
claim. See B.D.G., supra at 372; Martz, supra at 525; O’Black, supra at
1238.
Accordingly, for the reasons discussed above, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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