J-A28020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

JOHN JAMES SUCCI,

                            Appellant                      No. 480 EDA 2015


           Appeal from the Judgment of Sentence January 16, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0002732-2014


BEFORE: PANELLA, SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JANUARY 05, 2017

        John James Succi (“Appellant”) appeals from the judgment of sentence

entered on January 16, 2015, following his conviction of twelve counts of

theft by deception, twelve counts of deceptive business practices, two counts

of home improvement fraud, and one count of insurance fraud.                     After

review, we remand the matter to the trial court with instructions and retain

panel jurisdiction.

        Appellant was a residential and commercial contractor.         Beginning in

2005 and continuing through 2013, Appellant entered into thirteen contracts

to build, remodel, or construct additions on certain properties located in

Bucks    County,      Pennsylvania,     Philadelphia   County,   Pennsylvania,    and
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Margate, New Jersey. In each instance, Appellant either failed to finish the

work, failed to obtain necessary permits, failed to perform under the

contract, claimed he was insured when he was not, or provided fraudulent

receipts. It was also typical for Appellant to quote a price for a particular

project and then increase the costs.         If the homeowner challenged

Appellant’s work practices, he threatened them with legal proceedings that

would financially cripple the homeowners.        In at least two instances,

Appellant placed mechanic’s liens on homeowners’ properties.

      On February 10, 2014, Appellant was charged with multiple counts of

home improvement fraud, 73 P.S. § 517.8(a)(2), theft by deception,

18 Pa.C.S. § 3922, and deceptive business practices, 18 Pa.C.S. § 4107.

On June 16, 2014, Appellant was charged in a separate criminal complaint

with additional counts of deceptive business practices and theft by

deception, and insurance fraud, 18 Pa.C.S. § 4117(b)(4). On November 14,

2014, the Commonwealth filed a “Motion for Consolidation of Informations

for Single Trial” and a “Motion to Admit Prior Bad Acts.” Appellant then filed

“Defendant’s Omnibus Pre-Trial Motion,” which included, inter alia, a motion

to dismiss for improper venue, a motion to dismiss for improper jurisdiction,

and a motion to dismiss pursuant to 42 Pa.C.S. § 5552—Statute of

Limitations.

      On December 2, 2014, and December 4, 2014, the trial court

conducted hearings on the pretrial motions.        At the conclusion of the


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hearings, the trial court granted the Commonwealth’s motions and denied

Appellant’s motions.

      On December 4, 2014, Appellant proceeded with a jury trial, and on

December 12, 2014, he was found guilty of twenty-seven counts of the

consolidated criminal information.    On January 16, 2015, Appellant was

sentenced to an aggregate term of incarceration of fourteen to twenty-eight

years in a state correctional institution.   On February 17, 2015, Appellant

filed a timely notice of appeal.

      On March 11, 2015, Appellant filed a Pa.R.A.P 1925(b) statement.

Additionally, Appellant’s trial counsel filed a “Motion to Proceed In Forma

Pauperis” on behalf of Appellant as well as a “Motion to Withdraw as

Counsel.” After a hearing on April 21, 2015, the trial court granted counsel’s

motion to withdraw.     The trial court then entertained testimony from the

Appellate Coordinator from the Bucks County Public Defender’s Office. The

Coordinator informed the trial court that Appellant’s finances rendered him

ineligible for public defender representation. N.T., 4/21/15, at 14. Based

upon this testimony, the trial court denied Appellant’s motion to proceed in

forma pauperis and informed him of his options:

            [Appellant], you now have a choice. You may represent
      yourself. If you choose to do so, you are going to have to pay
      for whatever it is that you need for testimony transcribed from
      the criminal proceedings. You are going to have to make a
      request of the court reporters and you are going to have to pay
      for those—that transcript.




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N.T., 4/21/15, at 24. The trial court also explained to Appellant that he had

the right to retain private counsel. Id.

      Despite the trial court’s recital of Appellant’s responsibilities if he chose

to represent himself, as of the time the trial court filed its Pa.R.A.P 1925(a)

opinion on June 12, 2015, Appellant failed to obtain any transcripts.          The

trial court thus declared:

             Rule 1911(a) of the Rules of Appellate Procedure requires
      an appellant to make a written request for any transcript
      required by the rules and make any necessary payment or
      deposit for the transcript within the time prescribed by the
      Pennsylvania Rules of Judicial Administration. Pa.R.J.A. No.
      5000.1 et seq. If an appellant fails to do so, the appellate court
      may dismiss the appeal. Pa.R.A.P. 1911(d). An appellate court
      may only consider facts which have been duly certified in the
      record on appeal. Where review depends upon facts not present
      in the record, the claim is waived. Commonwealth v. Williams,
      552 Pa. 451, 715 A.2d 1101 (1998); Commonwealth v. Preston,
      904 A.2d 1 (Pa. Super. 2006). In the instant case, resolution of
      all issues [Appellant] has raised on appeal would require a
      thorough review of the procedural and factual record. Such a
      review is not possible due to [Appellant’s] failure to obtain a
      transcript of the proceedings. This court therefore finds that any
      claims by the [Appellant] on appeal have been waived.

Trial Court Opinion, 6/12/15 at 2–3.

      On August 19, 2015, Appellant filed a pro se petition to proceed in

forma pauperis with this Court.      The Superior Court Prothonotary’s Office

forwarded the petition to trial counsel, who remained listed as Appellant’s

representative despite the trial court’s order permitting him to withdraw.

      On October 20, 2015, Appellant’s appeal was dismissed for failure to

file an appellate brief.     That same day, appellate counsel entered his


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appearance on behalf of Appellant. On November 2, 2015, Appellant filed a

motion for reconsideration of the October 20, 2015 order dismissing the

instant appeal; the motion for reconsideration was granted, and the appeal

was reinstated.

     Sometime in October of 2015, the relevant notes of testimony were

transcribed and the required payment was submitted. The majority of the

requested transcripts were transmitted to this Court by December 10, 2015;

however, Appellant was concerned that certain transcripts remained missing

from the official record.    Accordingly, pursuant to Pa.R.A.P. 1926(b),

Appellant asked this Court to order supplementation of the record with all

the requested transcripts and for certification and transmission of the

supplemental record.   Appellant’s Application for Order for Supplemental

Record to be Certified and Transmitted, 4/15/16, at 2. On May 5, 2016, this

Court issued a per curiam order directing the trial court to certify and

transmit a supplemental record to the Superior Court Prothonotary.

     Despite the fact that the record on appeal now includes the necessary

transcripts, we deem it prudent to remand this matter to the trial court for

preparation of a supplemental Pa.R.A.P. 1925(a) opinion.           Although

Appellant urges that the issues raised on appeal concern purely legal

questions over which we exercise de novo review, we are convinced that the

trial court, who presided over and adjudicated pretrial motions, an involved

jury trial, and Appellant’s sentencing proceeding is obligated to analyze


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Appellant’s issues in the first instance.   For this reason, we remand the

matter and direct the trial court to prepare and submit a supplemental Rule

1925(a) opinion to address the issues raised in Appellant’s Pa.R.A.P. 1925(b)

statement on their merits. The trial court shall have sixty days within which

to comply with this directive.

      Case remanded. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2017




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