J-S29025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 BRANDON GARLAND                          :
                                          :
                    Appellant             :   No. 2992 EDA 2017

          Appeal from the Judgment of Sentence August 11, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0002646-2016,
            CP-51-CR-0004724-2015, CP-51-CR-0004943-2015


BEFORE:    PANELLA, J., MURRAY, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:             FILED JUNE 28, 2018

      The Majority reviews the merits of Appellant’s challenge to the

discretionary aspects of his sentence even though the certified record in this

case does not contain transcripts from Appellant’s trial or sentencing hearing.

As a review of the certified record does not provide clarification on whether

defense counsel or the trial court was responsible for the transmittal of the

incomplete record to this Court, I would remand for an evidentiary hearing on

this issue. For this reason, I dissent.

      It is well-established that “the fundamental tool for appellate review is

the official record of what happened at trial, and appellate Courts are limited

to considering only those facts that have been duly certified in the record on

appeal.   Commonwealth v. Williams, 552 Pa. 451, 456, 715 A.2d 1101,

1103 (1998). This Court has emphasized that “[o]ur law is unequivocal that


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29025-18



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.” Commonwealth v.

Bongiorno, 905 A.2d 998, 1000 (Pa.Super. 2006) (en banc) (quoting

Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.Super. 2006) (en

banc)). In Bongiorno, this Court summarized the relevant law as follows:

      In Commonwealth v. Preston, 2006 PA Super 170, ¶ 7, 904
      A.2d 1 (en banc), 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, 2006 PA Super 170,
      at ¶ 7.

      An appellant should not be denied appellate review if the failure
      to transmit the entire record was caused by an “extraordinary
      breakdown in the judicial process.”           Commonwealth v.
      Williams, 552 Pa. 451, 715 A.2d 1101, 1106 (1998). However,
      if the appellant caused a delay or other problems in transmitting
      the certified record, then he or she is not entitled to relief and the


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      judgment of the court below should be affirmed. Id. See
      Commonwealth v. Barge, 560 Pa. 179, 743 A.2d 429, 429–30
      (1999) (directing that if documents are missing from the certified
      record because of a default by court personnel, an appellant is
      entitled to have his claims resolved on the merits, but if the
      absence of the evidence is attributable to the appellant's failure to
      comply with the relevant procedural rules, the claims will be
      deemed to have been waived).

      Nevertheless, the existence of Rule 1931(d) does not supplant the
      legal mandate that places responsibility on the appellant to ensure
      that a complete record reaches the appellate court. The purpose
      of Rule 1931(d) is to assist appellants by providing notice as to
      what was transmitted so that remedial action can be taken if
      necessary. Rule 1931(d) does not absolve the appellant from the
      duty to see that this Court receives all documentation necessary
      to substantively address the claims raised on appeal. We caution
      the bench and bar that if the clerk of court fails to satisfy the
      requirements of Rule 1931(d) by providing a list of record
      documents, it behooves the appellant to investigate the matter.
      The failure of counsel or of an unrepresented appellant to make
      inquiry does not constitute an “extraordinary breakdown in the
      processes of the court.” Whether a default with regard to the
      contents of the certified record warrants a finding of waiver is a
      question that must be evaluated under the particular facts and
      circumstances of a specific appeal.

Bongiorno, 905 A.2d at 1000-1001 (emphasis added).            In Williams, our

Supreme Court remanded for an evidentiary hearing to evaluate whether an

“extraordinary breakdown in the judicial process” occurred which prevented

the transmittal of a transcript from the appellant’s suppression hearing to this

Court. Williams, 552 Pa. at 463, 715 A.2d at 1107.

      In this case, the Commonwealth argues in its appellate brief that

Appellant’s sentencing claim should be found waived as Appellant failed to

ensure the complete record was transmitted to this Court. The trial court did

not address this issue in its Rule 1925(a) opinion. Appellant’s counsel did


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request the transcripts from Appellant’s sentencing hearing and given this

effort, we cannot definitively conclude whether the transmittal of the

incomplete record was caused by Appellant’s counsel or an “extraordinary

breakdown in the judicial process.”

      Accordingly, pursuant to Williams, I would remand this case to the trial

court to determine whether an “extraordinary breakdown in the judicial

process” caused the sentencing transcript to be excluded from the record. For

this reason, I dissent.




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