J-S68005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN FREEMAN,
Appellant No. 2889 EDA 2008
Appeal from the Judgment of Sentence Entered September 3, 2008
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1114501-1999
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 04, 2015
Appellant, Kevin Freeman, appeals from the judgment of sentence of
one to three years’ imprisonment, imposed on September 3, 2008, after the
trial court revoked his parole based on a technical violation. Appellant
argues that this Court should remand for a new revocation/sentencing
hearing because the transcript of the September 3, 2008
revocation/resentencing hearing is unavailable and, consequently, he has
been deprived of his right to meaningful appellate review that proceeding.
After careful review, we affirm.
The trial court summarized the facts and procedural history of
Appellant’s case, as follows:
[Appellant] pled guilty to possession with intent to deliver
a controlled substance on August 7, 2000[,] before the
Honorable Eugene J. Maier, who imposed a sentence of 3½ to 7
years’ imprisonment. After [Appellant] was paroled on this
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sentence, [he] was charged with a new offense. [Appellant] filed
the instant appeal when the Lower Court found him in direct and
technical violation of his parole and imposed a 1 to 3 year
sentence of imprisonment on September 3, 2008.1 The sentence
was ordered to be served consecutively to any sentence he was
then serving.
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1
The matter was transferred to the undersigned judge
because Judge Maier was no longer on the bench.
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[Appellant] filed a pro se petition to modify sentence on
September 12, 2008 arguing that he was never granted a
Gagnon I hearing or the right to waive the hearing, and that
more than 9 months passed before he received a Gagnon [II]
hearing.[1] [Appellant] also alleges that counsel at his Gagnon
[II] hearing failed to “consider whether steps should be taken to
improve his chances of rehabilitation,” and that the Lower Court
did not “consider improving [Appellant’s] chances of
rehabilitation and, instead, impos[ed] a sentence of total
confinement.”
Trial Court Opinion (TCO), 11/26/10, at 1.
On September 26, 2008, the trial court denied Appellant’s motion to
reconsider his sentence.2 He filed a timely notice of appeal, and the court
subsequently filed a Pa.R.A.P. 1925(a) opinion, despite not ordering
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1
See Gagnon v. Scarpelli, 411 U.S. 778 (1973) (directing that when a
parolee or probationer is detained pending a revocation hearing, due process
requires a determination at a pre-revocation, Gagnon I hearing, that
probable cause exists to believe that a violation has been committed; when
a finding of probable cause is made, a second, more comprehensive Gagnon
II hearing is required before a final revocation decision can be made).
2
We note that Appellant’s motion for reconsideration of his sentence was
not docketed or included in the certified record. However, the docket states
that the court issued an order denying that motion on September 26, 2008.
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Appellant to file a Rule 1925(b) concise statement of errors complained of on
appeal.
Pertinent to the issue that Appellant raises herein is the following
procedural history of his appeal before this Court. On May 29, 2009,
Appellant filed with this Court an application to vacate, asking us to remand
his case to the trial court for it to complete the record with the transcript of
the September 3, 2008 revocation/resentencing hearing. On June 17, 2009,
this Court issued a per curiam order granting Appellant’s application to
vacate and directing the trial court to certify and transmit to this Court,
within 30 days, a supplemental record consisting of that transcript. Our
docket indicates that no such supplemental record was supplied by the trial
court, despite multiple ‘follow-ups’ by our Court’s Prothonotary’s Office.
Ultimately, on February 3, 2014, this Court issued a per curiam order
stating that the transcript of Appellant’s September 3, 2008
revocation/resentencing hearing was unavailable, and directing the trial
court and parties to recreate the record of that proceeding by preparing a
Pa.R.A.P. 1923 ‘statement in absence of a transcript’ (hereinafter “Rule 1923
statement”). See Per Curiam Order, 2/3/14. On March 24, 2014, this Court
received Appellant’s “Statement in Absence of Transcript Pursuant to
Pa.R.A[].P 1923,” which was served upon the Commonwealth and the trial
court. It does not appear that the Commonwealth filed any objections or
proposed amendments to that document, and Appellant’s statement in
absence of the transcript was made part of the certified record.
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On appeal, Appellant presents one question for our review:
Where the notes of testimony could not be transcribed
through no fault of [A]ppellant, and [A]ppellant raised issues in a
post-sentence motion that cannot be fully briefed because the
Pa.R.A.P. 1923 Statement in Absence of Transcript is insufficient
to address those issues, is not [A]ppellant entitled to a new
violation of probation hearing?
Appellant’s Brief at 2.
Before addressing Appellant’s argument, we note that:
The burden of obtaining transcripts from the proceedings falls
squarely on the appellant. Pa.R.A.P. 1911(a). When the unusual
situation arises where there is no transcript for a particular day
available, Pennsylvania Rule of Appellate Procedure 1923
provides:
If no report of the evidence or proceedings at a hearing or
trial was made, or if a transcript is unavailable, the
appellant may prepare a statement of the evidence or
proceedings from the best available means, including his
recollection. The statement shall be served on the
appellee, who may serve objections or propose
amendments thereto within ten days after service.
Thereupon the statement and any objections or proposed
amendments shall be submitted to the lower court for
settlement and approval and as settled and approved shall
be included by the clerk of the lower court in the record on
appeal.
Pa.R.A.P. 1923. See Commonwealth v. McCardle, 446
Pa.Super. 564, 667 A.2d 751, 752 (1995) (holding where notes
of testimony cannot be located or do not exist, it is incumbent
upon the defendant to file a statement in the absence of a
transcript).
Commonwealth v. Harvey, 32 A.3d 717, 721 (Pa. Super. 2011).
Here, it is undisputed that the notes of testimony from the September
3, 2008 Gagnon II revocation/resentencing hearing are unavailable, and
that Appellant filed a Rule 1923 statement in absence of a transcript
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(hereinafter “Rule 1923 statement”). However, on appeal, Appellant’s
counsel contends that the Rule 1923 statement – drafted by counsel herself
– is inadequate to permit her to meaningfully develop any of the arguments
Appellant seeks to assert on appeal.3 See Appellant’s Brief at 15 (“The
[Rule] 1923 statement is insufficient to address the issues on appeal that
were raised in the post-sentence motion. The [Rule] 1923 statement is not
an equivalent report of the events at the hearing from which [Appellant’s]
contentions arise.”). Appellant’s counsel further avers that “no blame for
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3
Specifically, Appellant desires to raise the following claims:
1) [Appellant] was never granted a Gagnon I hearing or the
right to waive the hearing, and more than nine months passed
before [Appellant] received a Gagnon II hearing;
…
[2]) The lower court did not consider [Appellant’s] chances of
rehabilitation and instead imposed a sentence of total
confinement.
Appellant’s Brief at 10 (citing TCO at 1). Appellant also presented a third
issue in his post-sentence motion that involved a claim of ineffective
assistance of counsel. However, he has abandoned that claim herein,
acknowledging that it must be raised in a petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. See Appellant’s
Brief at 10 n.4; see also Commonwealth v. Holmes, 79 A.3d 562, 576
(Pa. 2013) (reaffirming the prior holding in Commonwealth v. Grant, 813
A.2d 726 (Pa. 2002), that, absent certain circumstances, claims of
ineffective assistance of counsel should be deferred until collateral review
under the PCRA).
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the absence of a transcript can be ascribed to [Appellant]” and, because the
Rule 1923 statement is insufficient, Appellant is entitled to a new
revocation/sentencing hearing. Id.
In Commonwealth v. Harvey, 32 A.2d 717 (Pa. Super. 2011), we
addressed a similar argument. There, the notes of testimony from a portion
of Harvey’s trial were unavailable, and his attorney filed a Rule 1923
statement. Counsel constructed that statement by reviewing “the case file,
which consisted of correspondence with [Harvey], the available discovery,
and the preliminary hearing notes of testimony.” Id. at 721. On appeal,
Harvey’s counsel (the same attorney who drafted the Rule 1923 statement)
argued that “the statement [was] insufficient and [was] not an adequate
substitute for the missing transcripts….” Id. Accordingly, counsel
contended that Harvey was entitled to a new trial.
In assessing this claim, we initially noted:
Where meaningful review is impossible and appellant is free from
fault, a new trial may be granted. Commonwealth v. Burrows,
379 Pa.Super. 548, 550 A.2d 787 (1988). “Meaningful review
does not require, per se, a complete trial transcript.” Id. at 789.
See Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345,
410–11 (2011) (“[T]he absence of notes does not generate
some instantaneous, meritorious claim for relief.”). Rather, the
court may provide either a complete trial transcript or an
equivalent thereof. Burrows, supra. “Rule 1923 does not
contemplate that appellate counsel must single-handedly
reconstruct the record.” Burrows, 550 A.2d at 789. The theory
that underlies Rule 1923 is that a verbatim transcript of
proceedings is not necessarily a condition precedent to
meaningful appellate review, so long as the appellate court has
an “equivalent picture” of what happened at trial.
Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877
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(1971). Further, no relief is due because counsel on appeal was
not counsel at trial. Burrows, supra (the rules of appellate
procedure do not require appellate counsel to have first-hand
direct knowledge of what transpired at trial to prepare statement
of evidence). Rather, appellate counsel is required to prepare a
statement of the missing evidence from the best available
means. See id.
Id. at 721-722.
In Harvey, we ultimately concluded that Harvey’s appellate counsel
had failed to utilize the best available means to formulate her Rule 1923
statement. We emphasized that counsel,
limited her attempt to recreate an account of trial to discussions
with trial counsel and a review of the case file. That is, there is
no evidence she attempted to consult with the district attorney's
office, the trial judge, or Appellant. However, the information
necessary to prepare a statement in absence of transcript can
come from any of the parties who were present, including the
trial judge, witnesses, the trial prosecutor, defendant's trial
attorney, and defendant. Burrows, supra.
Id. at 722. Because Harvey’s counsel had failed to utilize the best available
means to reconstruct the record, we concluded that Harvey was not entitled
to a new trial due to the missing transcripts. Id.
Here, appellate counsel’s efforts to reconstruct the record of the
September 3, 2008 hearing were comparable, at best, to the attorney’s
inadequate efforts in Harvey. As Appellant’s counsel concedes, in drafting
her Rule 1923 statement, she relied only on the information contained in
“the court docket and the probation department’s summary report….”
Appellant’s Brief at 8. Counsel acknowledges that “this information
provide[d] mostly a procedural posture of the matter,” but did not “address
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any argument that may have been made” at the September 3, 2008 hearing
regarding the ostensible failure of the court to conduct a Gagnon I hearing
or a ‘speedy’ Gagnon II hearing. Id. Counsel also states that the
information on which she relied provided no documentation of “what
occurred at sentencing.” Id. Nevertheless, counsel does not explain why
she did not ask Appellant, the presiding judge, district attorney, or prior
defense counsel(s) for their recollections of, and/or notes from, that
proceeding.
Thus, in accordance with Harvey, we conclude that Appellant’s
counsel failed to utilize the best available means to reconstruct the record of
the September 3, 2008 revocation/resentencing hearing. Accordingly, we
must reject counsel’s argument that Appellant is entitled to a new hearing
because of the unavailable transcript and the inadequacy of her own Rule
1923 statement.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2015
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