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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRUONG V. DUONG
Appellant No. 788 EDA 2014
Appeal from the Judgment of Sentence February 28, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014151-2012
MC-51-CR-0019063-2012
BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MARCH 27, 2015
Appellant, Truong V. Duong, appeals from the judgment of sentence
entered February 28, 2014, by the Honorable Anne Marie B. Coyle, Court of
Common Pleas of Philadelphia County. We affirm.
Preliminarily, we note that our disposition of this case makes a
detailed factual and procedural history unnecessary. On appeal, Duong
challenges the sufficiency of the evidence and the admissibility of blood
alcohol content (“BAC”) test results following his conviction of Driving Under
the Influence, General Impairment.1 Our review of the record reveals that
Duong has failed to include the trial transcript from the trial de novo, held on
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*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. § 3802(a)(1).
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February 28, 2014. Our review of the certified record and of the docket
entries further shows that Duong failed to even request that the transcripts
in accordance with Pa.R.A.P. 1911(a).2 Duong’s failure to order the
transcripts mandates that we find his issue raised on appeal waived.
When the appellant … fails to conform to the requirements of
Rule 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. 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.
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)
(internal citations omitted).
Duong has included a transcript of the trial proceedings in the
reproduced record. The inclusion of a document in the reproduced record
alone, however, is insufficient for appellate review. Again, as we explained
in Preston:
[U]nder the Pennsylvania Rules of Appellate Procedure, any
document which is not part of the officially certified record is
deemed non-existent—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
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2
Although the record indicates that Duong served the court stenographer
with a copy of the Notice of Appeal, there is no Request for Transcript Form
attached to the Notice of Appeal, or contained elsewhere in the certified
record. See Pa.R.A.P. Rule 1911(c) Form.
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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.
Id., at 6-7 (internal citations and quotations omitted).
Accordingly, as Duong has failed to provide this Court with the trial
transcript necessary to consider his claims, we are constrained to find his
claim waived on appeal. See Preston, 904 A.2d at 7 (“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.”). See also
Commonwealth v. Murchinson, 899 A.2d 1159, 1162 (Pa. Super. 2006).
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Olson concurs in the result.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2015
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