                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marcus Profic,                                  :
                        Appellant               :
                                                :    No. 1164 C.D. 2017
                v.                              :
                                                :    Submitted: July 27, 2018
Berks County District                           :
Attorney’s Office                               :




OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                      FILED: August 15, 2018


                Marcus Profic (Appellant) appeals, pro se, from the June 15, 2017 order
of the Court of Common Pleas of Berks County (trial court) denying his petition for
writ of mandamus and/or extraordinary relief.1
                The following facts are garnered from the trial court’s opinion and the
original record in this matter. On January 8, 2017, Appellant, an inmate at the State
Correctional Institution – Mahanoy, submitted a request under the Right-to-Know Law
(RTKL)2 with the Berks County District Attorney’s Office (DA) for records related to
the guilty plea and sentencing transcript for a January 23, 2007 trial court proceeding




       1
         The trial court’s order was dated June 15, 2017, but not entered into the record until the
following day.

       2
           Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
in the matter of Commonwealth v. Hernandez, CP-06-CR-0002443-2004.3 By letter
dated January 18, 2017, the DA denied Appellant’s RTKL request, stating that it did
not possess any responsive records.4 Appellant filed a timely appeal with the Office of
Open Records (OOR). The OOR invited both parties to supplement the record. The
DA submitted a position statement, along with an affidavit from Alisa Hobart, Esquire,
its Open Records Officer, stating that a search was conducted and the hearing that was
the subject of Appellant’s request was not transcribed; therefore, no records existed in
the DA’s possession. Relying upon this affidavit, the OOR denied Appellant’s appeal.
               Appellant subsequently filed an appeal with this Court,5 but we transferred
the matter to the trial court by order dated March 28, 2017.6 Nevertheless, on May 11,
2017, Appellant filed his petition for writ of mandamus and/or extraordinary relief with
the trial court.     In this petition, Appellant described his RTKL request and the
proceedings leading up to the OOR’s final determination denying his appeal. Appellant
alleged that, by saying that the records do not exist, the DA is denying him access to
the courts. Appellant also alleged that he and other individuals attempted to obtain the
records on his behalf and were willing to pay for the same, but all of these attempts

       3
         In its brief, the DA notes that Ceferino Hernandez was a confession witness who testified
against Appellant during Appellant’s murder trial. (DA’s Brief at 3.) Appellant believes that
Hernandez fabricated the story of Appellant’s murder confession in order to obtain favorable relief
on pending criminal charges.

       4
       Appellant had previously sought to obtain the requested records directly from the trial court.
However, by order dated November 14, 2016, the trial court denied his request.

       5
         Appellant’s appeal to this Court actually consisted of a petition for writ of mandamus and/or
extraordinary relief that was directed to the trial court.

       6
         In this order, we noted that Appellant was appealing a determination of the OOR relating to
a local agency’s denial of access to public records and, as such, the appeal should have been filed
with the trial court in accordance with section 1302(a) of the RTKL, 65 P.S. §67.1302(a). See Profic
v. Berks County District Attorney’s Office (Pa. Cmwlth., No. 322 C.D. 2017, filed March 28, 2017).


                                                  2
were unsuccessful. Appellant sought an order directing the trial court to transcribe the
hearing and provide him with a copy of the transcript. The DA filed an answer
reiterating that a transcript of the hearing as requested by Appellant does not exist. The
DA noted that the RTKL does not require an agency to create a record that does not
otherwise exist and that two different judges of the trial court had denied Appellant’s
request for transcription. Shortly thereafter, the trial court issued its June 15, 2017
order denying Appellant’s petition.
               On August 2, 2017, Appellant filed an appeal with this Court, which again
was captioned as a petition for writ of mandamus and/or extraordinary relief. By order
dated September 5, 2017, the trial court directed Appellant to file a concise statement
of errors complained of on appeal. The original record does not include such a filing
by Appellant. Nevertheless, on October 20, 2017, the trial court issued an opinion in
support of its order. The trial court noted that two other judges had denied Appellant’s
request for transcription, once in connection with the Hernandez criminal proceedings
and again in connection with Appellant’s own criminal case. With respect to the latter,
the trial court noted that the denial was based upon Appellant’s failure to detail the
relevance of the requested transcript. Additionally, the trial court noted that during
Appellant’s criminal trial, Hernandez was extensively questioned regarding his own
pending charges and the possible favorable treatment he might receive in exchange for
his testimony against Appellant.
               Further, the trial court noted that Appellant had specifically raised an
allegation that Hernandez fabricated testimony in order to receive favorable treatment
on pending criminal charges in his fourth Post Conviction Relief Act (PCRA)7 petition,
which was dismissed by the PCRA court and then affirmed by our Superior Court.


      7
          42 Pa.C.S. §§9541-9546.


                                            3
Moreover, the trial court noted that it contacted the court reporter to determine the
length of the notes of testimony requested by Appellant and was informed that all notes
of testimony for all court actions filed before 2010 had been destroyed in a purging
process. Hence, the trial court concluded that it was now impossible for anyone to
grant Appellant’s request.
               On appeal to this Court,8 Appellant argues that he has a common law right
of access to public judicial records and that the DA should not be permitted to hide and
falsify the existence of the requested records. However, before we reach the merits of
Appellant’s arguments, we must address the DA’s contention that Appellant’s appeal
should be quashed as untimely. We agree with the DA.
               Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 903(a) provides
that a “notice of appeal . . . shall be filed within 30 days after the entry of the order
from which the appeal is taken.” In this case, the trial court’s order denying Appellant’s
petition for writ of mandamus and/or extraordinary relief was dated June 15, 2017, and
entered on the docket the following day. Thus, Appellant had 30 days from June 16,
2017, or until July 17, 2017, since July 16 fell on a Sunday, to file his appeal. However,
Appellant did not file his appeal with this Court until August 2, 2017, more than two


       8
           The matter that we transferred to the trial court related to Appellant’s appeal of a final
determination of the OOR denying his appeal. Our scope of review where, as here, the common pleas
court is the reviewing court, is limited to determining whether the trial court committed an error of
law and whether the findings of fact are supported by substantial evidence. Office of the District
Attorney of Philadelphia v. Bagwell, 155 A.3d 1119, 1123 (Pa. Cmwlth. 2017). To the extent that
the trial court was rendering a decision on Appellant’s petition for mandamus, we note that our scope
of review in a mandamus action is limited to determining whether the trial court abused its discretion
or committed an error of law, or whether sufficient evidence exists to support the trial court's findings.
Philadelphia Firefighters’ Union, Local 22 v. City of Philadelphia, 78 A.3d 16, 19 (Pa. Cmwlth.
2013).




                                                    4
weeks beyond the 30-day deadline, thereby rendering Appellant’s appeal untimely.9
Hence, we are constrained to quash Appellant’s appeal.
               Even if not quashed, we note that Appellant’s appeal would fail. The
OOR credited the affidavit of Attorney Hobart, the DA’s Open Records Officer, stating
that the hearing that was the subject of Appellant’s request was not transcribed.
Further, as the trial court noted in its October 20, 2017 opinion, even if the hearing had
been transcribed, the court reporter advised that all notes of testimony for all court
actions filed before 2010, which includes the January 23, 2007 guilty plea and
sentencing transcript sought by Appellant, had been destroyed in a purging process.
               Accordingly, for the reasons stated above, Appellant’s appeal is quashed
as untimely.




       9
         We note that Appellant’s appeal, which consisted of a revised version of his original petition
for writ of mandamus and/or extraordinary relief, was only signed by Appellant on July 26, 2017,
nine days after expiration of the 30-day deadline.


                                                  5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marcus Profic,                        :
                  Appellant           :
                                      :   No. 1164 C.D. 2017
            v.                        :
                                      :
Berks County District                 :
Attorney’s Office                     :



PER CURIAM
                                   ORDER


            AND NOW, this 15th day of August, 2018, the appeal of Marcus Profic
is hereby quashed as untimely.
