Com. v. Banko, D. ( 2021 )

J-S26002-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DYLAN RAY BANKO
Appellant No. 1564 MDA 2020
Appeal from the Judgment of Sentence entered November 25, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0000352-2018
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
JUDGMENT ORDER BY STABILE, J.: FILED: OCTOBER 14, 2021
Appellant, Dylan Banko, appeals from the judgment of sentence
imposed in the Court of Common Pleas of Dauphin County on November 25,
2020, following Appellant’s conviction of various charges stemming from his
operation of a motor vehicle on October 19, 2017. Several of the convictions
include a component of driving under the influence. In his Rule 1925(b)
statement, Appellant raised a Confrontation Clause issue stemming from his
inability to confront the analyst who performed the blood test establishing that
Appellant’s BAC was over the legal limit. He also claimed insufficiency of
evidence to support his convictions, but has abandoned the sufficiency claims
on appeal. See Appellant’s Brief at 6 n.1.
The trial court determined Appellant waived his issues on appeal
because he failed to order trial transcripts and make them part of the certified
J-S26002-21
record on appeal. See Trial Court Opinion, 2/11/21, at 2-5. Although
Appellant’s counsel subsequently ordered trial transcripts, he did not make
them part of the certified record with this Court, electing instead to include
them in the reproduced record filed with this Court on June 4, 2021, when he
also filed Appellant’s brief.
Appellant suggests this Court should review the merits of his
Confrontation Clause issue because the trial transcripts are now part of the
record before us. However, Appellant ignores the fact that the transcripts are
not part of the certified record.1
The Commonwealth asks us to remand to the trial court for preparation
of a Rule 1925(a) opinion, “now that trial transcripts have been lodged.”
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1 “[W]e can only repeat the well established principle that ‘our review is limited
to those facts which are contained in the certified record’ and what is not
contained in the certified record ‘does not exist for purposes of our review.’”
Commonwealth v. [Gregory] Brown, 161 A.3d 960, 968 (Pa. Super. 2017).
While we do not condone Appellant’s failure to comply with the procedural
rules regarding the request for trial transcripts or the obligation to ensure that
all necessary materials for review are included in the certified record, we also
recognize our Supreme Court’s willingness to consider materials included in a
reproduced record. As this Court reiterated in Commonwealth v. Holston,
211 A.3d 1264 (Pa. Super. 2019) (en banc), “in certain circumstances, we
may consider an item included in the reproduced record that has been omitted
from the certified record. Specifically, where the accuracy of a document is
undisputed and contained in the reproduced record, we may consider it.” Id.
at 1276 (some citations omitted) (quoting Commonwealth v. [Dwayne]
Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)). See also Pa.R.A.P. 1921 Note
(stating “that where the accuracy of a pertinent document is undisputed, the
Court could consider that document if it was in the Reproduced Record, even
though it was not in the record that had been transmitted to the Court.” Id.(citing [Dwayne] Brown, supra, 52 A.3d at 1145 n.4).
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J-S26002-21
Commonwealth Brief at 3. In light of the circumstances, and recognizing that
we do have access to the transcripts—although not as part of the certified
record, we agree that a remand is appropriate. Therefore, we remand with
instruction for Appellant to lodge the transcripts with the trial court within ten
(10) days of this Order so they are available to the trial court and so they can
be transmitted as part of the certified record when the case returns to this
Court. Further, within thirty (30) days of the filing of the transcripts, the trial
court shall issue a Rule 1925(a) opinion addressing Appellant’s Confrontation
Clause issue only.
Case remanded. Jurisdiction retained.
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