J-S64012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1958 MDA 2016
ROY ALLEN BAGLEY
Appeal from the Order Entered November 4, 2016
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000267-2016
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD*, J.
JUDGMENT ORDER BY PANELLA, J. FILED DECEMBER 14, 2017
The Commonwealth of Pennsylvania asks this Court to reverse a
suppression court’s order suppressing all evidence collected pursuant to the
execution of an overly broad search warrant. Despite its claim that the
suppression court erred in determining that the search warrant was overly
broad, the Commonwealth has failed to ensure the presence of the warrant in
the certified record. We cannot review the merits of this claim without
reviewing the search warrant. Thus, the Commonwealth has waived all claims
on appellate review.
Based upon a tip that Appellee was illegally in possession of a firearm,
Trooper Caroline Rayeski applied for, and presumably received, a warrant to
search Appellee’s home. Following the execution of the search warrant and
the discovery of firearms, the police charged Appellee with two counts of
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* Former Justice specially assigned to the Superior Court.
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persons not to possess firearms. Appellee filed a motion to suppress, alleging
the search warrant was overly broad and therefore infringed upon his
constitutionally protected rights. Following a hearing, the suppression court
agreed with Appellee, holding that its review of the affidavit of probable cause
attached to the search warrant indicated that the warrant itself did not
“describe on its face the item as nearly as may be, which is necessary under
Article 1[,] Section 8 of the Pennsylvania Constitution.” Trial Court Amended
Opinion, 12/14/16, at 4. This appeal follows.
The success or failure of the Commonwealth’s claim clearly rests upon
our interpretation of the language contained within the search warrant.
However, the search warrant is not part of the certified record. “The
fundamental tool for appellate review is the official record of events that
occurred in the trial court.” Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.
Super. 2006) (en banc) (citation omitted). And “[o]ur law is unequivocal that
the responsibility rests upon the appellant to ensure that the record certified
on appeal is complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty.” Id., at 7 (citation
omitted).
Here, our review of the docketing statement indicates the search
warrant was never filed, either independently, or as an exhibit to the
suppression hearing. Furthermore, the list of record documents transmitted
pursuant to Pa.R.A.P. 1931(d) and served upon the Commonwealth does not
contain a notation, or any other indication, that the search warrant was a part
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of the certified record transmitted on appeal.1 Additionally, the
Commonwealth filed a reproduced record. Bafflingly, a copy of the search
warrant is not even included in that record.
Our review of the Commonwealth’s claim is hamstrung by our inability
to review the terms of the search warrant. Thus, we find the Commonwealth’s
claim that the suppression court incorrectly granted Appellee’s suppression
motion waived. See, e.g., Commonwealth v. Barge, 743 A.2d 429, 429-
430 (Pa. 1999) (holding if the absence of the evidence is attributable to the
appellant's failure to comply with the relevant procedural rules, the claims will
be deemed to have been waived); Commonwealth v. B.D.G., 959 A.2d 362,
373 (Pa. Super. 2008) (finding claim waived for failure to include relevant
document in the certified record).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2017
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1 “The purpose of Rule 1931(d) is to assist appellants by providing notice as
to what was transmitted so that remedial action can be taken if necessary.
Rule 1931(d) does not absolve the appellant from the duty to see that this
Court receives all documentation necessary to substantively address the
claims raised on appeal.” Commonwealth v. Bongiorno, 905 A.2d 998,
1001 (Pa. Super. 2006) (en banc) (emphasis in original).
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