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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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