J-S23001-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
CRAIG CARTER,                            :
                                         :
                 Appellant               : No. 2190 EDA 2008

           Appeal from the Judgment of Sentence May 17, 2006,
               Court of Common Pleas, Philadelphia County,
             Criminal Division at No. CP-51-CR-0300181-2005

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED MAY 15, 2015

      Appellant, Craig Carter (“Carter”), appeals from the judgment of

sentence entered on May 17, 2006, seeking a new trial based upon the

unavailability of trial transcripts necessary to prosecute an appeal. For the

reasons set forth herein, we affirm the judgment of sentence.

      At a bench trial in March 2006, the trial court found Carter guilty of

four counts of aggravated assault, 18 Pa.C.S.A. § 2702, five counts of

robbery, 18 Pa.C.S.A. § 3701, two counts of criminal conspiracy, 18

Pa.C.S.A. § 903, and a variety of lesser offenses.      In May 2006, the trial

court sentenced Carter to an aggregate term of incarceration of from eleven

to twenty-two years. Carter did not file a post-sentence motion or a notice

of appeal, but on April 25, 2007, he filed a pro se petition pursuant to the

Post Conviction Relief Act, 42 Pa. C.S.A. §§ 9541-46 (“PCRA”), seeking the




*Retired Senior Judge assigned to the Superior Court.
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reinstatement of his direct appeal rights nunc pro tunc.      The PCRA court

granted this petition and Carter (through counsel) filed a notice of appeal on

July 18, 2008.

      Carter’s appointed appellate counsel (Attorney Rodriguez) could not

obtain the trial transcripts necessary to complete the certified record on

appeal, and on October 11, 2011, the trial court conducted an evidentiary

hearing, after which it concluded that the trial transcripts were irretrievably

lost. On March 12, 2012, this Court entered an order directing the trial court

and the parties to prepare a statement in absence of transcript pursuant to

Rule 1923 of the Pennsylvania Rules of Appellate Procedure. In response,

on May 2, 2012, the trial court issued an order directing Attorney Rodriguez

to prepare a Rule 1923 statement.

      In September 2012, Attorney Rodriguez filed a motion to compel

Carter’s trial counsel (Attorney Coard) to file a statement of his recollection

of what transpired at trial, and the trial court entered an order directing

Attorney Coard to do so by November 2012. On January 7, 2013, the trial

court entered another order directing Attorney Coard to comply with its prior

order. On July 22, 2013, the trial court again ordered Attorney Rodriguez to

file a Rule 1923 statement. On February 5, 2014, the trial court issued a

third order to Attorney Coard, directing him to appear before the trial court

to explain why he had not complied with the prior orders.        On March 6,

2014, the trial court issued yet another order to Attorney Coard, directing



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him to appear on March 24, 2014 to explain his failure to comply with the

prior court orders and stating that if he failed to appear he would be held in

contempt and a bench warrant would be issued for his arrest.

      Also on March 6, 2014, Attorney O’Hanlon entered his appearance

replacing Attorney Rodriguez, who had been unable to attend hearings

because of medical problems. At the hearing on March 24, 2014, and as set

forth in an order dated March 25, 2014, the trial court ordered counsel for

the Commonwealth (Attorney Travassos) to reconstruct the record and

submit copies to the trial court, Attorney O’Hanlon, and Attorney Coard. On

April 21, 2014, Attorney Travossos filed the Commonwealth’s Proposed

Statement in Absence of Transcript under Pa.R.A.P. 1924, and on April 28,

2014, Attorney Travossos filed an amended statement.         In the proposed

statement, the Commonwealth set forth its version of events at trial “relying

on its internal case files and the recollection of the trial ADA.”   Amended

Statement, 4/29/2014, ¶ 6.       At a hearing on July 1, 2014, Attorney

O’Hanlon, on behalf of Carter, objected to the Commonwealth’s proposed

statement, contending that it did not accurately state “what took place at

trial.” N.T., 7/1/2014, at 4. Attorney O’Hanlon also read into the record two

letters written by Carter, in which he disagreed with the accuracy of the

proposed statement. Id. at 4-6. Overruling these objections, the trial court

concluded that the Commonwealth’s proposed statement was an accurate

summary of Carter’s trial. Id. at 7.



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      On appeal, Carter raises a single issue for our consideration, namely

whether the trial court erred in “certifying a reconstruction of the record

because the trial transcript was not available and could not feasibly and

meaningfully be reproduced.”     Carter’s Brief at 4.   In his appellate brief,

Carter contends that neither the trial court nor Attorney Coard had any

recollection of what transpired at trial, and that in the absence of trial

transcripts or a substantial equivalent, he must be granted a new trial. Id.

at 9-10.

      As rehearsed hereinabove, this Court ordered the trial court and the

parties to prepare and submit a statement in absence of transcript pursuant

to Pa.R.A.P. 1923, which provides as follows:

            If no report of the evidence or proceedings at a
            hearing or trial was made, or if a transcript is
            unavailable, the appellant may prepare a statement
            of the evidence or proceedings from the best
            available means, including his recollection.     The
            statement shall be served on the appellee, who may
            serve objections or propose amendments thereto
            within ten days after service.       Thereupon the
            statement and any objections or proposed
            amendments shall be submitted to the lower court
            for settlement and approval and as settled and
            approved shall be included by the clerk of the lower
            court in the record on appeal.

Pa.R.A.P. 1923.

     Whether the trial court should have “certified” the Commonwealth’s

proposed statement pursuant to Rule 1923 is questionable, for at least two

reasons.   First, nothing in the certified record on appeal supports the trial



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court’s conclusion that the proposed statement is an accurate representation

of what took place at Carter’s trial. The Commonwealth did not attach any

affidavits or other supporting evidence to its filing, and while Attorney

Travossos signed it, she was not the prosecutor who tried the case.      As

noted, Carter (the only other person who claims to have any recollection of

what took place) disputed the accuracy of the proposed statement.

     Second, the process employed by the trial court (to have the

Commonwealth prepare the proposed statement) is contrary to the process

set forth in Rule 1923.1 Pursuant to Rule 1923, the appellant must prepare

the statement and send it to the appellee for objections or proposed

amendments, and it is then submitted to the trial court for review and

approval. Pa.R.A.P. 1923. Parenthetically, we note that while this Court has

sometimes insisted on strict compliance with the process set forth in Rule

1923, see In re D.D., 597 A.2d 648 (Pa. Super. 1991) (en banc), on other

occasions we have not. See Commonwealth v. Hughes, 389 A.2d 1081

(Pa. Super. 1978); Smith v. Mason, 476 A.2d 1347 (Pa. Super. 1984).


1
   Perhaps recognizing this inconsistency, the Commonwealth cited to Rule
1924, rather than Rule 1923, when filing its proposed statement. Rule
1924, entitled “Agreed Statement of Record,” plainly has no application
here, as it provides a mechanism for the parties, by agreement, to exclude
from the certified record (and thus from appellate consideration) matters
before the trial court that are not essential to the issues presented on
appeal. See generally West’s Pennsylvania Practice, Vol. 20A, §1924.1.
Here there is no agreement between the parties regarding the
Commonwealth’s proposed statement, and (particularly in the absence of
any substantive issues raised at the present time) no reason for an
abbreviated certified record.


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     We    need    not      decide   whether   the   trial   court   erred   in

approving/certifying the Commonwealth’s proposed statement, however,

since in either instance we cannot grant Carter the relief he has requested

(i.e., a new trial). In Commonwealth v. Harvey, 32 A.3d 717 (Pa. Super.

2011), this Court recently summarized the relevant law with respect to the

grant of a new trial where missing transcripts cannot be overcome by

application of Rule 1923:

           Where meaningful review is impossible and appellant
           is free from fault, a new trial may be granted.
           Commonwealth v. Burrows, 379 Pa.Super. 548,
           550 A.2d 787 (1988). “Meaningful review does not
           require, per se, a complete trial transcript.” Id. at
           789. See Commonwealth v. Lesko, 609 Pa. 128,
           15 A.3d 345, 410–11 (2011) (“[T]he absence of
           notes does not generate some instantaneous,
           meritorious claim for relief.”). Rather, the court may
           provide either a complete trial transcript or an
           equivalent thereof. Burrows, supra. “Rule 1923
           does not contemplate that appellate counsel must
           single-handedly reconstruct the record.” Burrows,
           550 A.2d at 789. The theory that underlies Rule
           1923 is that a verbatim transcript of proceedings is
           not necessarily a condition precedent to meaningful
           appellate review, so long as the appellate court has
           an “equivalent picture” of what happened at trial.
           Commonwealth v. Anderson, 441 Pa. 483, 272
           A.2d 877 (1971). Further, no relief is due because
           counsel on appeal was not counsel at trial.
           Burrows, supra (the rules of appellate procedure
           do not require appellate counsel to have first-hand
           direct knowledge of what transpired at trial to
           prepare statement of evidence). Rather, appellate
           counsel is required to prepare a statement of the
           missing evidence from the best available means.
           See id.

Id. at 721-22.


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      Based upon the certified record before us, we cannot conclude that

Carter is “free from fault” regarding the lack of an acceptable Rule 1923

statement in absence of transcript. Contrary to the express requirements of

Rule 1923, Carter’s appellate counsel, including neither Attorney Rodriguez

nor Attorney O’Hanlon, never submitted a “statement of the evidence or

proceedings from the best available means, including his [the appellant’s]

recollection.” Pa.R.A.P. 1923. In Harvey, we refused to grant a new trial

because counsel failed to submit a Rule 1923 statement in absence of

transcript, noting that “there is no evidence [counsel] attempted to consult

with the district attorney’s office, the trial judge, or Appellant.              [T]he

information necessary to prepare a statement in absence of transcript can

come from any of the parties who were present, including the trial judge,

witnesses, the trial prosecutor, defendant’s trial attorney, and defendant.”

Harvey, 32 A.3d at 722 (citing Burrows, 550 A.2d at 787).

      Similarly, the certified record in the present case does not establish

that Carter’s appellate counsel exhausted all possible sources of information

in a good faith attempt to comply with the dictates of Rule 1923, including

consultation with the district attorney’s office and/or with Carter himself. In

Harvey,    we   noted    the   importance   of   utilizing   the   appellant’s    own

recollection of events at trial:

            It is understandable that [Appellant's] trial attorney
            does not remember the details of one case that
            occurred almost four years ago; the attorney has



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            most likely tried dozens of cases, if not more, since
            then. However, [Appellant] himself has not. His
            trial likely stands out in his mind. Whether or not
            [Appellant] remembers every detail of [the trial]
            testimony, it is likely that he remembers some of
            what occurred.

Id. at 723 (citing the trial court’s opinion). Carter’s letters objecting to the

Commonwealth’s proposed statement reflect that he had recollections of

what occurred at trial and could have been a resource to his appellate

counsel in preparing a Rule 1923 statement. We also note that the certified

record contains other materials that could have been helpful in this regard,

including the exhibits entered into evidence at trial and a transcript of a

plea2 and sentencing hearing (May 17, 2006).

      At his discretion, Carter may file a PCRA petition alleging that his

appellate counsel was ineffective in this regard.      We express no opinion

whatsoever regarding the merits (or lack thereof) of such a filing. Instead,

we conclude only that on direct appeal, no basis exists on the record before

us to grant Carter a new trial.

      Judgment of sentence affirmed.

      Shogan, J. joins the Memorandum.

      Strassburger, J. files a Concurring Memorandum.




2
  Carter pled guilty to a VUFA firearms violation, 18 Pa.C.S.A. § 6106. N.T.,
5/17/2006, at 6.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2015




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