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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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