Com. v. Moon, T.

J-S50016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
TROY L. MOON, :
:
Appellee : No. 1879 WDA 2013
Appeal from the Order Entered October 25, 2013,
In the Court of Common Pleas of Allegheny County,
Criminal Division, at No. CP-02-CR-0007420-2013.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 19, 2014
The Commonwealth appeals from the order of the trial court which
granted the Commonwealth’s motion to nolle prosse and withdraw charges,
but also dismissed with prejudice the charges filed against Appellee, Troy L.
Moon. We affirm.
We summarize the history of this case as follows. On March 17, 2013,
Appellee was stopped at a DUI checkpoint and exhibited signs of
intoxication. In addition, Appellee showed signs of impairment during three
field sobriety tests. Subsequent testing of his blood indicated that Appellee
had a blood alcohol level of .222%. On April 3, 2013, a criminal complaint
was filed charging Appellee with two counts of driving under the influence of
alcohol. The matter was scheduled to proceed to a nonjury trial on August
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6, 2013. Appointed counsel filed a motion for continuance seeking time to
explore Appellee’s eligibility for the ARD program. The case was then
scheduled for nonjury trial on September 4, 2013. On that date, Appellee,
along with additional defendants, entered a negotiated guilty plea.
However, during the plea hearing Appellee’s counsel requested the trial
court to review the district attorney’s rejection of Appellee from the ARD
program. In response to defense counsel’s request, the trial court
suggested that Appellee proceed to a nonjury trial, and set a trial date of
October 25, 2013. It appears that the Commonwealth, Appellee, and the
trial court are in agreement that the trial scheduled for October 25, 2013,
was to be a stipulated nonjury trial.
On October 17, 2013, after receiving notice that the arresting officer
was unavailable on October 25, 2013, the Commonwealth filed a motion for
continuance. On October 25, 2013, the trial court denied the motion for
continuance. Also on that date, the Commonwealth filed a motion for nolle
prosse.1 The trial court granted the motion for nolle prosse, and added the
language “dismissed with prejudice” to the proposed order.
1
“A nolle prosequi is a voluntary withdrawal by the prosecuting attorney of
proceedings on a particular bill or information, which can at anytime be
retracted to permit revival of proceedings on the original bill or information.”
Commonwealth v. Rega, 856 A.2d 1242, 1245 n.10 (Pa. Super. 2004)
(quoting Commonwealth v. Whiting, 500 A.2d 806, 807 (Pa. 1985)).
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On November 4, 2013, the Commonwealth filed a motion to reconsider
the denial of the requested continuance and dismissal with prejudice.
Appellee filed, on November 14, 2013, a response to the Commonwealth’s
motion to reconsider. On November 25, 2013, the Commonwealth filed this
appeal from the order of October 25, 2013, which granted the motion for
nolle prosse and dismissed with prejudice.
The Commonwealth presents the following issue for our review:
I. Whether the trial court abused its discretion by denying
the Commonwealth’s first request for a postponement after
having granted the defense the courtesy, and further, whether
the trial court abused its discretion by dismissing the case with
prejudice when the prosecutor asked to withdraw the charges for
the purpose of refilling [sic] the action?
Commonwealth’s Brief at 4. The Commonwealth contends the trial court
erred in granting its request for nolle prosequi with prejudice, which had
been entered at its request following the denial of a continuance.
With respect to nolle prosequi, Pa.R.Crim.P. 585 provides as follows:
Rule 585. Nolle Prosequi
(A) Upon motion of the attorney for the Commonwealth,
the court may, in open court, order a nolle prosequi of one or
more charges notwithstanding the objection of any person.
Pa.R.Crim.P. 585(A).
The standard of review for a grant of such a motion is stated as
follows:
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The grant of a petition for nolle prosequi, lies within the
sound discretion of the [trial] Court, and its action will not be
reversed in the absence of an abuse of discretion.
Judicial discretion requires action in conformity with
law, upon facts and circumstances judicially before
the court, after hearing and due consideration.
Consequently, the court abuses its discretion if, in resolving the
issue for decision, it misapplies the law or [rules] in a manner
lacking reason.
Commonwealth v. Rega, 856 A.2d 1242, 1244 (Pa. Super. 2004)
(citations and quotation marks omitted).2
Regarding continuances, this Court has stated the following:
“The grant or denial of a motion for a continuance is within
the sound discretion of the trial court and will be reversed only
upon a showing of an abuse of discretion.” Commonwealth v.
McAleer, 561 Pa. 129, 135, 748 A.2d 670, 673 (2000) (citation
omitted). “An abuse of discretion is not merely an error of
judgment. Rather, discretion is abused when the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence or the record . . . .”
Id. (citations and quotation marks omitted).
In Re A.J., 829 A.2d 312, 314 (Pa. Super. 2003).
Initially, we note that the proceedings that occurred in the trial court
on October 25, 2013, at the conclusion of which the trial court dismissed the
instant matter with prejudice, are not included in the certified record.
2
In Rega, this Court noted that there are two factors to consider when a
request for nolle prosequi is made: (1) that the reason given by the
Commonwealth for the request is valid and reasonable; and (2) whether a
defendant had a valid speedy trial claim at the time the request is made.
Rega, 856 A.2d at 1245.
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As this Court has explained:
The fundamental tool for appellate review is the official
record of the events that occurred in the trial court. 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. The law of Pennsylvania is well settled that
matters which are not of record cannot be considered on appeal.
Thus, an appellate court is limited to considering only the
materials in the certified record when resolving an issue. 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 nonexistent - a deficiency which cannot be remedied
merely by including copies of the missing documents in a brief or
in the reproduced record. The emphasis on the certified record
is necessary because, unless the trial court certifies a document
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.
This Court cannot meaningfully review claims raised on
appeal unless we are provided with a full and complete certified
record. 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.
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.
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Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (citations
omitted). See also Commonwealth v. Williams, 715 A.2d 1101, 1106
(Pa. 1998) (finding a critical distinction between whether the lower court
failed to transmit to this Court a complete record and whether the appellant
failed to complete the record in the lower court).
Our review of the certified record reflects that the transcript of the
October 25, 2013 proceedings was never prepared, and thus, was never
filed with the trial court. Indeed, the certified record contains a letter from
the court reporter to the assistant district attorney, which explains the lack
of transcript as follows:
I am in receipt of your Transcript Order Form dated May 12,
2014 for the Proceedings held in the Troy Moon case listed for
hearing on October 25, 2013 in front of Judge Kelly Bigley.
I have reviewed my stenographic notes for the Troy Moon case
listed to be heard that day, and there were “No Notes Taken” in
this case.
Court Reporter’s Letter to Assistant District Attorney, 5/23/13, at 1 (docket
entry 18).
Accordingly, the certified record indicates that the necessary
transcripts were not taken in the trial court, and the trial court could not
transmit them to this Court. Because the Commonwealth’s arguments are
based on facts adduced at the October 25, 2013 proceedings before the trial
court, the evidence upon which the Commonwealth must rely does not exist
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in the certified record. Thus, without a record of the October 25, 2013
proceedings, we are unable to address the merits of the Commonwealth’s
claims of error. Hence, we cannot grant relief on the Commonwealth’s
issues.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2014
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