Com. v. Perez, V.

J-S35039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR PEREZ :
:
Appellant : No. 1950 EDA 2019
Appeal from the Judgment of Sentence Entered May 22, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004137-2017
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
JUDGMENT ORDER BY COLINS, J.: FILED OCTOBER 20, 2020
Appellant, Victor Perez, appeals from the aggregate judgment of
sentence of 10 to 20 years of confinement, which was imposed after his jury
trial convictions for: manufacture, delivery, or possession with intent to
manufacture or deliver a controlled substance by a person not registered
(“PWID”); intentionally possessing a controlled or counterfeit substance by a
person not registered; use of or possession with intent to use drug
paraphernalia; persons not to possess, use, manufacture, control, sell or
transfer firearms; possession of firearm with altered manufacturer’s number;
and criminal conspiracy to commit PWID.1 We remand for correction of the
record.
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (16), (32); 18 Pa. C.S. §§ 6105(a)(1),
6110.2(a), and 903 (to commit 35 P.S. § 780-113(a)(30)), respectively.
J-S35039-20
In its opinion pursuant to Pa.R.A.P. 1925(b), the trial court fully and
correctly set forth the relevant facts of this case. See Trial Court Opinion,
dated October 15, 2019, at 1-3. Therefore, we have no reason to restate
them.
On June 6, 2017, Sergeant Michael Regan of the Cheltenham Township
Police Department executed a written criminal complaint against Appellant.2
On October 11, 2018, Appellant filed a Motion to Dismiss Charges Pursuant to
PA Rule of Criminal Procedure 600 (“Rule 600 Motion”), contending that the
Commonwealth had violated Pa.R.Crim.P. 600(A)(2).3 Rule 600 Motion,
10/11/2018, at ¶ 6. The Rule 600 Motion pleaded that, as of the date that it
was filed, “the case has been pending for 493 days,” because the
Commonwealth “did not exercise due diligence” in bringing Appellant’s case
to trial. Id. at ¶¶ 8, 13. On October 15, 2018, the Commonwealth filed an
Answer to the Rule 600 Motion. On October 15 and 24, 2018, the trial court
held hearings on the Rule 600 Motion. No notes of testimony appear in the
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2 The handwritten date on the complaint was June 5, 2017. The docket lists
the “Initiation Date” as June 6, 2017. The date-stamp on the complaint is
June 7, 2017. In their briefs, both parties state that criminal charges were
filed against Appellant on June 6, 2017, and we will accept this date as the
“start date” for this action. Appellant’s Brief at 11; Commonwealth’s Brief at
4.
3 Pa.R.Crim.P. 600(A)(2) lists five “time periods” by which “[t]rial shall
commence[.]” The only one applicable to Appellant is Pa.R.Crim.P.
600(A)(2)(a): “Trial in a court case in which a written complaint is filed
against the defendant shall commence within 365 days from the date on which
the complaint is filed.”
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certified record for the second hearing on the Rule 600 Motion held on
October 24, 2018.
On appeal, Appellant contends, inter alia, that the trial court erred by
denying his Rule 600 Motion. Appellant’s Brief at 10. The Commonwealth
answers that said claim is waived due to the absence from the certified record
of a transcript for the hearing October 24, 2018. Commonwealth’s Brief at 8.
While the Commonwealth is correct that the notes of testimony from
this second hearing are essential for us to determine the propriety of the trial
court’s denial of the Rule 600 Motion, Pa.R.A.P. 1926(b)(1) allows for
correction of such omissions from the record as follows:
If anything material to a party is omitted from the record by error,
breakdown in the processes of the court, or accident or is
misstated therein, the omission or misstatement may be corrected
by . . . the appellate court . . . on its own initiative at any time; in
the event of correction or modification by the trial court, that court
shall direct that a supplemental record be certified and
transmitted if necessary[.]
Pa.R.A.P. 1926(b)(1).
For the current appeal, there is no transcript order attached to the notice
of appeal in the certified record. However, our review confirms that every
other relevant transcript is present and accounted for in the certified record
aside from this one. As such, it seems inexorable that Appellant must have
ordered transcripts under Pa.R.A.P. 1911. It beggars our belief that Appellant
would request all the transcripts in a case, save the one most crucial to his
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appellate arguments. Even assuming that Appellant’s counsel4 did fail to order
a transcript of the October 24, 2018, hearing, we are permitted to remand
under Rule 1926 for correction.5
Case remanded for correction of the record. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2020
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4 We note that Appellant’s defense counsel was replaced contemporaneously
to the filing of an appeal in his case, i.e., during the period of time when
defendants are required to obtain and transmit transcripts.
5 As we remand for correction of the record, we need not address Appellant’s
remaining issues at this time.
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