Com. v. Cohick, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TIMOTHY ALLEN COHICK :
:
Appellant : No. 927 MDA 2018
:
:
Appeal from the Judgment of Sentence May 16, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000662-2017,
CP-41-CR-0001350-2017, CP-41-CR-0001929-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TIMOTHY ALLEN COHICK :
:
Appellant : No. 1497 MDA 2018
:
:
Appeal from the Judgment of Sentence May 16, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000662-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TIMOTHY ALLEN COHICK :
:
Appellant : No. 1506 MDA 2018
:
:
Appeal from the Judgment of Sentence May 16, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001350-2017
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
* Retired Senior Judge assigned to the Superior Court.
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CONCURRING MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 13, 2019
As my learned colleagues faithfully apply precedent in disposing of this
appeal, I join the Majority Memorandum. I write separately to note my belief
that, if Appellant was informed that he could obtain appellate review of his
judgment of sentence by filing “an” appeal, or “a” notice of appeal when he
was advised of his appellate rights pursuant to Pa.R.Crim.P. 708(D)(3), such
would warrant a finding of a breakdown of court processes excusing his lack
of compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),
and its progeny. Accord Commonwealth v. Flowers, 149 A.3d 867, 872
(Pa.Super. 2016) (holding breakdown in court operation granted this Court
jurisdiction over untimely appeal where trial court failed to correct counsel’s
misstatement about deadline for filing appeal and incorrectly provided that
the appellant had an additional thirty days to appeal from order denying
motion for reconsideration of sentence imposed upon revocation of
intermediate punishment); Commonwealth v. Parlante, 823 A.2d 927, 929
(Pa.Super. 2003) (“[W]e decline to quash this appeal because [the late
appeal] resulted from the trial court’s misstatement of the appeal period,
which operated as a breakdown in the court’s operation.”) (quotation marks
omitted); Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa.Super.
2001) (same).
However, I am unable to discern from the record in the instant case
whether such a breakdown occurred because the transcript from Appellant’s
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resentencing was not ordered or included in the certified record. Since
Appellant bore the burden of securing all necessary documents for the certified
record, the absence of proof that no breakdown occurred here does not
warrant relief.1
Therefore, I join the Majority Memorandum.
____________________________________________
1 In light of the missing transcript, if this Court had jurisdiction over this
appeal, the result would be the denial of counsel’s petition to withdraw and
remand for the completion of the record and the filing of a new brief. See
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.Super. 2015)
(denying petition to withdraw and remanding for counsel to obtain missing
notes of testimony).
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