Com. v. Dempsey, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHAEL DEMPSEY : No. 104 MDA 2020
Appeal from the Order Entered December 18, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000793-2019
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 06, 2020
The Commonwealth appeals from the order granting the suppression
motion of Michael Dempsey (Dempsey).1 After careful consideration, we
affirm.
The suppression court summarized the procedural posture as follows:
On September 19, 2019, a motion to suppress evidence was
filed on behalf of [] Dempsey. The motion filed on behalf of
[Dempsey] challenged the search of his vehicle, residence and
person which occurred on February 20, 2019. A suppression
hearing was scheduled for November 19, 2019. Rather than
present any testimony, the Commonwealth submitted the Sealing
Order, Application for Search Warrant and Probable Cause
Affidavit as an exhibit.
Findings of Fact and Conclusions of Law, 12/17/19, at 1.
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1 The Commonwealth has certified their right to appeal because the
suppression motion will terminate or substantially handicap the prosecution.
Pa.R.A.P. 311(d).
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The parties submitted briefs after the hearing. Thereafter, the court
found that the search warrant was defective because it was “not properly
executed by the issuing authority,” and in particular, “was not signed by the
issuing authority.” Id. Relying on Commonwealth v. Vaughan, 789 A.2d
261, 265 (Pa. Super. 2001), the court concluded that “a warrant without the
signature of the issuing authority lacks the required prior judicial
determination of probable cause and does not constitute a written order.”
Findings of Fact and Conclusions of Law, 12/17/19, at 2. The court noted that
the Sealing Order signed by the issuing authority was not sufficient to
establish probable cause. Id. For these reasons, the court entered the
December 17, 2019 order granting Dempsey’s suppression motion. The
Commonwealth timely appealed.2
The Commonwealth presents a single issue:
Whether a contemporaneous finding of probable cause in a sealing
order, signed by the Judge, satisfies the signature requirement on
the face of the search warrant application?
Commonwealth Brief at 4.
The Commonwealth recognizes that there must be a finding, by written
order from the issuing authority, that probable cause exists to justify a
warrant. The Commonwealth asserts:
The signature of the issuing authority evidencing that they have
reviewed the facts set forth by the affiant, and that those facts
establish probable cause, satisfies the on the record finding by
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2Both the trial court and the Commonwealth have complied with Pennsylvania
Rule of Appellate Procedure 1925.
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written order requirement. While there is a specific place for
the issuing authority to sign the warrant, it is not an
absolute requirement to sign on the correct line, as long as
the record, i.e. the documents, show the issuing authority
has made a finding of probable cause that can be reviewed
by a reviewing court.
In this case, the record, [including] the documents
presented to the issuing authority, show that a determination of
probable cause was made. All of the documents, the warrant and
the Application for Sealing, were presented to the issuing
authority at the same time. The issuing authority then completed
the warrant, albeit without a signature, but then immediately
signed the sealing order, which contained language demonstrating
that she had made a finding of probable cause. Thus, the record
contains a written order showing that probable cause justified the
search for, and seizure of, evidence in this case.
Commonwealth Brief at 7 (emphasis added).
Dempsey counters that a “signature on a specific line officially
authorizes the Search Warrant Application into a Search Warrant. Other
signature lines do not indicate approval of the warrant.” Dempsey’s Brief at
6.
The suppression court shares Dempsey’s view. The court found that
although the judge signed the sealing order, she did not sign the warrant “in
the proper place.” Suppression Court Opinion, 3/16/20, at 2. The court
explained:
The sealing order for the search warrant affidavit was
signed by a judge. Although the sealing order does indicate a
finding of probable cause, it is not the search warrant and a
sealing order is not required to obtain a search warrant. A review
of the search warrant reveals that it was not signed by the issuing
authority.
A search warrant without the signature of the issuing
authority lacks the required prior judicial determination of
probable cause and does not constitute a written order.
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Commonwealth v. Vaughan, 789 A.2d 261, 265 (Pa. Super.
2001). A search warrant not signed by the issuing authority has
not been issued. Id. An unsigned search warrant is not sufficient
to establish probable cause and the evidence seized pursuant
thereto must be suppressed. Id. “Each search warrant shall be
signed by the issuing authority...” Pa.R.Crim.P. 205(A).
The search warrant authorizing the search of [Dempsey’s]
vehicle and residence was not signed by the issuing authority so
there was no determination of probable cause.
Suppression Court Opinion, 3/16/20, at 2.
In proceeding to the merits of the Commonwealth’s claim, we recognize:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa. Super. 2016) (citations
omitted).
Pennsylvania Rule of Criminal Procedure 205(A) states that a search
warrant “shall be signed by the issuing authority.” Here, after conducting a
hearing, listening to the parties’ respective arguments, and considering post-
hearing briefs, the court granted Dempsey’s motion. The court’s order states
in pertinent part:
Upon consideration of the Motion to Suppress Evidence . . . as
well as the Sealing Order, Application for Search Warrant
and Probable Cause Affidavit marked as Commonwealth’s
Exhibit 1 . . . the Motion is GRANTED.
Order, 12/17/19 (emphasis added).
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Our review of the record confirms that the Commonwealth introduced
the search warrant at the hearing as Exhibit 1. See N.T., 11/19/19, at 3.
However, our review further reveals that the exhibit is not in the certified
record.3
“For purposes of appellate review, what is not of record does not exist.”
Woskob v. Woskob, 843 A.2d 1247, 1257 (Pa. Super. 2004), quoting,
Rosselli v. Rosselli, 750 A.2d 355, 359 (Pa. Super. 2000). “It remains the
appellant’s responsibility to ensure that a complete record is produced for
appeal.” Kessler v. Broder, 851 A.2d 944, 950 (Pa. Super. 2004) (citation
omitted).
This Court recently detailed prevailing case law, as well as Pennsylvania
Rule of Appellate Procedure 1921, which addresses the composition of the
record on appeal. We explained:
Before we may review the Commonwealth’s claim, we
observe that the fundamental tool for appellate review is the
official record of the events that occurred in the trial court.
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006)
(citing Commonwealth v. Williams, 552 Pa. 451, 715 A.2d
1101, 1103 (1998)). The law of Pennsylvania is well settled that
matters which are not of record cannot be considered on appeal.
[]
A certified record consists of the “original papers and
exhibits filed in the lower court, paper copies of legal papers
filed with the prothonotary by means of electronic filing, 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
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3 Nor are there copies of the exhibit in the Commonwealth’s reproduced
record, or appended to the parties’ briefs.
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“We 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. Brown, 161
A.3d 960, 968 (Pa. Super. 2017).
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. [] In Preston, 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,
[904 A.2d] at 7.
Commonwealth v. Bongiorno, 905 A.2d 998, 1000-1001 (Pa.
Super. 2006) (en banc).
In addition, in Commonwealth v. Brown, 617 Pa. 107, 52
A.3d 1139 (2012), our Supreme Court indicated that, 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
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1145 n.4. 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” (citing Brown, 52 A.3d at 1145 n.4)).
Commonwealth v. Holston, 211 A.3d 1264, 1275–76 (Pa. Super. 2019) (en
banc) (some citations omitted) (emphasis added).
Rule 1921 expressly includes exhibits as constituting part of “the record
on appeal in all cases.” Here, Exhibit 1 is not in the certified record or the
reproduced record. We emphasize the language of the court’s order granting
suppression, stating that it was doing so “upon consideration” of, inter alia,
“Commonwealth’s Exhibit 1.” Order, 12/17/19. Exhibit 1 is the cornerstone
of this appeal. Although the parties do not dispute the content of the exhibit,
our standard of review requires that we examine whether the record supports
the suppression court’s findings of fact. See Korn, supra. Because our
review of the Commonwealth’s suppression issue is impeded by the absence
of Exhibit 1 from the certified record, we are constrained to find the issue
waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/06/2020
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