Com. v. Gregg, A. ( 2022 )

J-S03013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDERSON DWAYNE GREGG :
:
Appellant : No. 12 WDA 2021
Appeal from the Judgment of Sentence Entered September 14, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002392-2019
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
JUDGMENT ORDER BY LAZARUS, J.: FILED: APRIL 11, 2022
Anderson Dwayne Gregg appeals from the judgment of sentence,
entered in the Court of Common Pleas of Fayette County, following his
conviction of possession of firearms prohibited.1 Upon review, we recognize
that the jury trial transcript is absent from the certified record and that it is
unclear who was responsible for this omission. Accordingly, we remand with
instructions.
On September 10, 2020, a jury convicted Gregg of the above-mentioned
crime as a result of a traffic stop that revealed a firearm in the vehicle, as well
as a subsequent investigation that revealed Gregg was not permitted to
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105(a)(1).
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possess a firearm. On September 14, 2020, the trial court sentenced Gregg
to a term of five to ten years’ imprisonment, and to pay costs and fines.
On September 16, 2020, Gregg filed a post-sentence motion, and
subsequently filed leave to amend his post-sentence motion, which the trial
court granted. Gregg filed a timely amended post sentence motion, and, on
December 2, 2020, the trial court denied Gregg’s motion.
Gregg, then represented by Peter J. Daley, Esquire, filed a timely notice
of appeal. The trial court ordered a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). However, before Attorney Daley
complied, he filed an application to withdraw due to a breakdown in the
attorney-client relationship. The trial court granted Attorney Daley’s
application to withdraw and, on January 8, 2021, appointed Michael P. Ford,
Esquire, to represent Gregg on appeal. Attorney Ford then filed a late Rule
1925(b) concise statement.
Prior to addressing Gregg’s claim on appeal,2 we observe that the record
before us contains no transcripts, and their absence impedes our review. See
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (matters not
in record may not be considered on appeal, and this Court may not consider
any documents not included in certified record). Generally, “the responsibility
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2 A review of Gregg’s appellate brief reveals he raises one challenge to the
sufficiency of the evidence, which we cannot review without the appropriate
transcripts. See Brief for Appellant, at 10-14.
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rests upon the appellant to ensure that the record certified on appeal is
complete . . . .” Id. at 7. However, we are mindful of the following:
Under [Pa.R.A.P.] 1926, an appellate court may direct that an
omission or misstatement shall be corrected through the filing of
a supplemental certified record. However, this does not alter the
fact that the ultimate responsibility of ensuring that the
transmitted record is complete rests squarely upon the appellant
and not the appellate courts. Pa.R.A.P. 1931.
With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any transcript
necessary to permit resolution of the issues raised on appeal.
Pa.R.A.P. 1911(a). . . . When the appellant . . . fails to conform
to the requirements of 1911, any claims that cannot be resolved
in the absence of the necessary transcript or transcripts must be
deemed waived for the purpose of appellate review.
[Commonwealth v. Williams, 715 A.2d 1101, 1105 (Pa. 1998)].
It is not proper for either the Pennsylvania Supreme Court or the
Superior Court to order transcripts nor is it the responsibility of
the appellate courts to obtain the necessary transcripts.
In the absence of specific indicators that a relevant document
exists but was inadvertently omitted from the certified record, it
is not incumbent upon this Court to expend time, effort and
manpower scouring around judicial chambers or the various
prothonotaries’ offices of the courts of common pleas for the
purpose of unearthing transcripts, . . . that may well have been
presented to the trial court but were never formally introduced
and made part of the certified record. Commonwealth v.
Blystone, … 617 A.2d 778, 783 n.4 ([Pa. Super.] 1992). If,
however, a copy of a document has been placed into the
reproduced record, or if notes of testimony are cited
specifically by the parties or are listed in the record inventory
certified to this Court, then we have reason to believe that such
evidence exists. [See Commonwealth v. O’Black, 897 A.2d,
1234, 1238 (Pa. 2006)]. In this type of situation, we might well
make an informal inquiry to see if there was an error in
transmitting the certified record to this Court. Id. We might also
formally remand the matter to the trial court to ascertain
whether notes of testimony or other documentation can be located
and transmitted. Id. If a remand is necessary, it is appropriate
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to direct the trial court to determine why the necessary
documentation was omitted from the certified record.
Williams, 715 A.2d at 1107. An appellant should not be denied
appellate review if the failure to transmit the entire record was
caused by an “extraordinary breakdown in the judicial process.”
Id. at 1106. However, if the appellant caused a delay or other
problems in transmitting the certified record, then he or she is not
entitled to relief and the judgment of the court below should be
affirmed.
Preston, 904 A.2d at 6-8 (Pa. Super. 2006) (emphases added) (some
citations omitted).
Instantly, neither Attorney Daley nor Attorney Ford filed a request for
transcripts. However, as the trial court notes in its opinion, it is unclear who
was responsible for this omission. See Trial Court Opinion, 4/15/21, at 1.
Nevertheless, both Gregg and the Commonwealth cite to the jury trial
transcript in their respective appellate briefs. Moreover, it is clear from our
review of the record that a jury trial was conducted, and the transcript of this
proceeding is merely absent from the certified record. Therefore, we have
“reasons to believe this evidence exists.” See O’Black, supra. Accordingly,
we remand to the trial court to determine whether the September 2020 jury
trial transcript exists, and to determine why it was absent from the record.
See Preston, supra. Further, if such a transcript does exist, we direct the
trial court to supplement the certified record within 30 days of the date of this
Order.
Case remanded with instructions. Panel jurisdiction retained.
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