J-A20016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.B., A MINOR :
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: No. 1412 WDA 2016
Appeal from the Order Entered August 23, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-JV-0001836-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED AUGUST 3, 2018
A.B. appeals from the disposition order of the Court of Common Pleas
of Allegheny County following his adjudication of delinquency on charges of
involuntary deviate sexual intercourse with a child, aggravated indecent
assault of a child, and sexual assault. After our review, we remand with
instructions.
Following adjudication, trial counsel did not file post-dispositional
motions and, instead, filed a motion to withdraw on September 9, 2016; the
court denied the motion, ordered counsel to file a notice of appeal and then
seek substitution. Counsel filed a timely appeal on A.B.’s behalf, as well as a
court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Counsel again sought to withdraw, and this Court granted counsel’s
request and remanded for appointment of counsel.
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Upon remand, the public defender entered his appearance in this Court
and, on February 21, 2017, the public defender sought remand for the filing
of post-dispositional motions nunc pro tunc, raising trial counsel’s
ineffectiveness and a hearing on that matter. This Court remanded the
matter, and the trial court held an ineffectiveness hearing on October 17,
2017. At the conclusion of that hearing, the court stated that it would take
the matter under advisement and schedule a subsequent proceeding. At that
subsequent proceeding, held on February 20, 2018, the court pronounced its
findings of fact and conclusions of law, ultimately denying A.B.’s
ineffectiveness claim.
Now, in this appeal, A.B. challenges that ruling. However, our review of
the briefs and the record indicate that the notes of testimony from the
February 20, 2018 proceeding, to which both parties and the trial court refer
and which are required for our review, have not been included in the certified
record on appeal. The Commonwealth’s appellee’s brief, filed on June 4, 2018,
sought dismissal on grounds the record was incomplete. Thereafter, on June
13, 2018, Appellant filed a Stipulation to Supplement Certified Record on
Direct Appeal, signed by both the assistant district attorney and the assistant
public defender, to include “[t]he transcript of the ineffectiveness hearing held
on October 17, 2017, which is marked and attached as Exhibit A.” Stipulation
to Supplement Record, 6/13/18, at 2. The October 17, 2017 transcript,
however, had already been made part of the record.
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By finding waiver for failure to request transcription, which the
Commonwealth argues for in its brief, we invite collateral relief and frustrate
the interests of justice and judicial economy. We caution appellant, however,
that 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 upon the appellate courts.
Accordingly, we remand this case to the court of common pleas with
directions that omissions from the record be corrected and a supplemental
record, if available, be certified and transmitted within fourteen (14) days.
See Pa.R.A.P. 1926(b)(1); see also Commonwealth v. Preston, 904 A.2d
1, 6–7 (Pa. Super. 2006) (en banc) (under Rule 1926, appellate court may
direct omission or misstatement be corrected through filing of a supplemental
certified record).
Remanded. Panel jurisdiction retained.
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