dissenting.
This case requires us to consider the proper application of Rule 9015 of the Pennsylvania Rules of Criminal Procedure. Because I conclude that the trial court lacked the authority under Rule 9015 to conduct the pre-trial proceeding complained of in this appeal, I must respectfully dissent.
From the transcripts, it is established that a jury had already been selected in the case of Commonwealth v. Rizzo before any hearing purportedly under Rule 9015 was convened. Argument/Hearing Transcript, May 26, 1995 (from 9:05 a.m until 11:49 a.m.) at 6; Pretrial Hearing Transcript (P.H.T.), May 30,1995 (from 8:35 a.m. until 10:32 A.M.) at 30, R.R. at 179. The trial court acknowledged that the jury could be sworn and trial commenced as early as the afternoon of Tuesday, May 30th. P.H.T., supra, at 30, R.R. at 179. This occurred immediately after the trial court had adjudicated *325Mark Bradley Reighard and James Hyland in contempt and committed both of them to the Somerset County Jail. Id. at 13, 26-27, R.R. at 162, 175-76.
In its ex parte order entered May 22, 1995, the trial court expressly ruled that it would be considering preservation of Reighard’s and Hyland’s testimony as allowed by Rule 9015. In its order issued prior to 1:30 P.M. on May 26,1995, the trial court again expressly stated that the testimony of Reighard and Hyland “will be received pursuant to Pennsylvania Rule of Criminal Procedure 9015 and also generally.” We, therefore, must examine Rule 9015 to determine whether the hearings that resulted in Reighard and Hyland being found in contempt were lawfully held.
In pertinent part, the rule provides as follows:
Rule 9015. Preservation of Testimony After Institution of Criminal Proceedings
1. BY COURT ORDER.
(a) At any time after the institution of a criminal proceeding, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for trial or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness’ testimony be preserved.
(b) The court shall state on the record the grounds on which the order is based.
(e) The preserved testimony shall not be filed of record until it is offered into evidence at trial or other judicial proceeding.
The trial court filed two essentially identical Statements under Pa.R.A.P.1925 on July 21, 1995 (Statements). The only difference was in the name of the witness identified in each appeal. In both, the court stated:
The Court directed that the testimony be taken and preserved pursuant to Pa.R.Crim.P. 9015, and, alternatively, pursuant to the Court’s authority to control trial procedure *326and order of proof in order to ensure a fair trial and to eliminate the possibility of a miscarriage of justice. As stated in our Order, the Court considered the taking and preserving of the testimony necessary because of the Court’s determination that the interests of justice required preservation in view of the evidence that the witness would be unavailable for trial.
Statements, supra, at 2.
With this background, I turn to consideration of Rule 9015. I begin by noting the purpose and construction of the Rules of Criminal Procedure. Pa.R.Crim.P. 2 provides:
Rule 2. Purpose and Construction
These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay and as nearly as may be in consonance with the rules of statutory construction.
This Court has observed that the rules of statutory construction are incorporated into the Rules of Criminal Procedure. Commonwealth v. Hightower, 438 Pa.Super. 400, 401 n. 1, 652 A.2d 873 n. 1 (1995). The rule of strict and liberal construction requires that all provisions of a penal statute be strictly construed. 1 Pa.C.S. § 1928(b)(1). Here, where the result of the application of Rule 9015 is the incarceration of the witness for contempt, it seems only just that the rule be strictly construed in consonance with the rules of statutory construction. I turn then to the reasonable interpretation of Rule 9015.
I begin by focusing on the plain language of the rule. The rule is titled “Preservation of Testimony After the Institution of Criminal Proceedings”; in paragraph (l)(a) the rule states that “the court may order the taking and preserving of testimony.” Pa.R.Crim.P. 9015; see 1 Pa.C.S. § 1924 (“The title ... of a statute may be considered in the construction thereof.”). The rule provides two circumstances in which the court may take and preserve the testimony of a witness: (1) *327when the witness may be unavailable for trial; and (2) when, due to exceptional circumstances, it is in the interests of justice to preserve the witness’s testimony. Pa.R.Crim.P. 9015. It seems abundantly clear, based on the plain language of this rule, that the determination of whether a witness is unavailable or whether exceptional circumstances exist is a preliminary question that must be decided before the court can order the taking and preservation of testimony under the authority of Rule 9015. The structure of the rule affords no other interpretation.
The problem in this case is that the court ordered the taking and preserving of testimony without making the required preliminary determination. In fact, the record clearly indicates that the court ordered the May 26 hearing for the purpose of determining whether the witnesses would be available at trial. At the argument on May 22, at which the Commonwealth requested this unusual pre-trial proceeding, counsel for the Commonwealth stated, in regard to whether the witnesses would testify at trial, “there may be nobody, including the witnesses, who at this moment in fact know what they will ultimately do, which is one of the reasons I suggested] the procedure that I did.” Argument Transcript, May 22, 1992, at 14 (emphasis added). Based on this representation by the Commonwealth, without any factual development regarding the availability of the witnesses or the existence of exceptional circumstances, the trial court issued an order under the aegis of Rule 9015, requiring a hearing to determine whether Reighard and Hyland “intend to testify or refuse to testify.” Trial Court Order, May 22, 1995. Because the trial court did not make the preliminary determination required by Rule 9015, I conclude that this most unusual pretrial procedure was not authorized by that rule.
In addition, I also believe that the trial court erred in its interpretation of the phrase “may be unavailable,” as used in the rule. The comment to Rule 9015 speaks to the meaning of this phrase:
“May be unavailable,” as used in paragraph 1, is intended to include situations in which the court has reason to believe *328that the witness will be unable to be present or to testify at trial or other proceeding, such as when a witness is dying, or will be out of the jurisdiction, and therefore cannot be effectively served with a subpoena, or may become incompetent to testify for any legally sufficient reason.
Pa.R.Crim.P. 9015 cmt. While comments by the Supreme Court’s Criminal Rules Committee are not binding on the Superior Court, those comments may be considered as effective aids in interpreting' the meaning of a rule. Commonwealth v. Reeb, 406 Pa.Super. 28, 33, 593 A.2d 853, 856 (1991).
The comment may not have been intended to be all-inclusive in the examples set forth above, but its intent can be readily gleaned from the matters listed. One could scarcely argue that a dying witness, or one out of the jurisdiction and not amenable to subpoena, would not be available to testify at trial. In the same vein, a party who has suffered severe brain damage, thereby rendering the person incapable of verbal communication, might be said to be “unavailable.” In the situations enumerated in the comment and in the hypothetical that I have raised here, there might be but one fleeting opportunity to take the testimony of the witness; hence the need to preserve the testimony for use at trial. A different situation is present in this case.
The jury was selected on May 22, 1995, sometime shortly after 10:51 a.m. Argument Transcript, May 22, 1995 (from 10:00 a.m. until 10:51 a.m.) at 1, 32. William A. Jones, Deputy Attorney General, had subpoenaed Reighard on Friday, May 19, 1995, before selection of the jury. Id. at 2-3. Trial was scheduled to begin on Tuesday, May 30,1995. Id. at 3. The trial court stated that, although the jury was selected on May 22nd, it would not be sworn until the day the trial started, May 30th. Id. On May 22,1995, the trial court issued an order providing, in part:
IT IS FURTHER ORDERED THAT UPON REQUEST BY THE COMMONWEALTH’S COUNSEL, THE WITNESSES MARK BRADLEY REIGHARD AND JAMES HYLAND ARE DIRECTED TO APPEAR AT THE HEARING AT 9 O’CLOCK A.M. ON FRIDAY, MAY 26, *3291995, IN COURTROOM NO. 1 OF THE SOMERSET COUNTY COURTHOUSE, SOMERSET, PENNSYLVANIA.
Both Reighard and Hyland appeared and took the stand at the May 26,1995 hearing and at the continued hearing on May 30, 1995, the date set for trial. How then could it be argued that either witness was “unavailable”?
On May 22, 1995, Deputy Attorney General Jones first sought that the swearing of the jury be postponed, but he did not pursue this request when informed that the jury is not normally sworn in Somerset County until the day of trial. Id. at 3. Jones then advanced an “idea” which he admitted had only come to him the preceding Friday. Id. at 5. He suggested that the court:
schedule a hearing in open court for both Mr. Reighard and Mr. Hyland to offer testimony under cross-examination by counsel for the defendant. [Jones] will make — I will make available their Grand Jury testimony.
If the witnesses at that point, pre-trial, decide not to testify, we don’t have a problem with a Jury that’s already been sworn, sitting around, waiting for a trial to go forward; and the Court’s powers to compel their testimony or to coerce their testimony through the contempt power would be unfettered in that situation, unlike what I’ve suggested we’re on the road for right now.
On the other hand, if they do elect to testify in that hearing setting, there will then be evidence that is useable in a subsequent Jury trial.
That’s the request the Commonwealth is making. I recognize it’s at least an unusual request, possibly a unique request for this Court. I know it’s the first time I’ve been in a position to make such a request.
Id. at 5-6.
Defense counsel, Stanton D. Levenson, understandably declined to accept the Commonwealth’s offer. Id. at 6. Mr. Levenson observed that the suggested procedure was not *330recognized or sanctioned by either the rules of criminal procedure or any case law. I wholeheartedly agree. What the Commonwealth sought to do, and what the trial court unfortunately acceded to, was to hold a trial-before-a-trial at which time the witnesses would be examined by the prosecutor as to those substantive matters to be presented to the jury not five days later! Both of the witnesses were amenable to process and had never failed to be available in this or earlier proceedings involving the same defendant. One of the witnesses was already under subpoena for this very trial, scheduled to begin on Tuesday, May 30. What possible justification could exist for taking these witnesses’ testimony only two court days before the scheduled trial?
The Commonwealth’s argument in justification for its request is that if the testimony were delayed until after the jury had been sworn, and if the witness(es) refused to testify, jeopardy would have attached and the defendant, Dominick Rizzo, might escape conviction. If the Commonwealth’s position is sound, then nothing would prevent the Commonwealth from demanding and securing pre-trial “trials” on any occasion for the purpose of “preserving” testimony which might otherwise be “lost” through a witness exercising a right not to testify.
In support of his bizarre request, the deputy attorney general could cite only to contract law, which counsel conceded might be “a bit foggy” because it came from counsel’s law school days. Jones submitted to the trial court:
The contract law recognizes that, under certain circumstances, a party who is about to be aggrieved by being the victim of a broken contract doesn’t have to wait until the contract is actually in fact literally broken, that there are certain circumstances where communicated intentions or other signs that the other party intends, not to comply with the contract is sufficient for there to be a finding of breach of contract which trigger a number of things: one, the ability of seeking Court intervention to lessen damages; also triggers in the contract law a duty on the part of the aggrieved party to mitigate damages; all of which in the *331contract law is intended to lessen the damage from what is about to occur.
And that’s what I’m asking, that’s what the Commonwealth is asking this Court to do, is to avoid or lessen the damage and fall-out that may flow from what I have reason to anticipate may be a refusal to answer questions.
Id. at 15.
It is clear that the only “unavailability” contemplated by the Commonwealth was the possibility that either Reighard or Hyland, or both, might decline to testify on May 30,1995 when the trial had commenced. In my view, this showing is not sufficient to establish that a witness may be “unavailable for trial” within the meaning of Rule 9015. I recognize that in the context of certain exceptions to the hearsay rule we have held that an immunized -witness who refuses to testify is “unavailable.” See Commonwealth v. Smith, 436 Pa.Super. 277, 287, 647 A.2d 907, 911 (1994). I believe that the definition of unavailability which applies in the hearsay context, however, is inapposite in the context of Rule 9015.
Rule 9015 is concerned with the preservation of testimony; the term “unavailable” must be read in light of the rule’s purpose. In each of the examples of unavailability that are enumerated in the comment to the rule, there is a witness who, for some reason beyond the court’s control, may be unable to testify at trial. Thus, Rule 9015 provides a means by which the trial court can take the witness’s testimony before the trial and preserve it for later use. Here, the court was faced with a situation where it believed that Reighard and Hyland were going to refuse to testify at trial. Trial Court Order, May 26, 1995. If a court believes that a witness will refuse to testify, however, then the court cannot reasonably believe that there exists testimony to be preserved. I conclude, therefore, that the refusal of a witness to testify does not constitute “unavailability” under Rule 9015 because the refusal of a witness to testify leaves no testimony to be preserved.
*332In addition, I cannot accept the Commonwealth’s argument that “exceptional circumstances” are present in this case. The difficulty that I find in this argument is simply that the Commonwealth fears nothing more than the normal exigencies of trial that occur all the time. The desire of the Commonwealth to introduce the testimony of one or more persons facing prosecution into the trial of a third person being prosecuted does not pose “exceptional circumstances.” The interests of justice are not implicated every time a potential witness is expected to be uncooperative at some time in the future.
In its Rule 1925 Statement(s), the trial court, without citation to any authority, defends its action based on that court’s “authority to control trial procedure and order of proof in order to ensure a fair trial and to eliminate the possibility of a miscarriage of justice.” Statement Under Pa.R.A.P.1925 at 2. Trial procedure and order of proof, however, are matters which are controlled during trial and after the jury is sworn. The trial court does not explain how its attempt to handle a portion of the trial even before the trial begins falls within the court’s authority to govern trial procedure and orders of proof. Nor does the court indicate how this procedure promotes “fairness.” Moreover, to suggest that the failure of the prosecution’s witnesses to testify exactly the way the prosecution wants them to testify will result in a “miscarriage of justice” almost requires that one assume the guilt of Dominick Rizzo, an assumption that neither the trial court nor this Court is free to make on my understanding of constitutional principles.
As appellant Reighard points out in his brief, the result obtained by virtue of the trial court proceeding under Rule 9015 on these facts is absurd. Subsection 1(e) of Rule 9015, swpra, provides that any testimony taken under the rule “shall not be filed of record until it is offered into evidence at trial or other judicial proceeding.” The record certified to this Court did not, in fact, include the very testimony (or lack of testimony) upon which the trial court based its contempt finding! The certified transcript for Argument/Hearing held on Friday, May 26, 1995, from 9:05 a.m. until 11:49 a.m., and from 1:39 *333p.m. until 1:55 p.m., and from 5:45 p.m. until 5:47 p.m., includes this entry at pages 99-100:
(WHEREUPON, AT 1:55 P.M., JAMES HYLAND LEFT THE COURTROOM, AND PROCEEDINGS AND TESTIMONY WERE HELD WHICH HAVE BEEN SEPARATELY TRANSCRIBED AND SEALED FROM PUBLIC RECORD, AFTER WHICH THE FOLLOWING PROCEEDINGS WERE HELD.)
THE COURT: This 26th of May, 1995, the further pretrial conference and hearing is continued until 8:30 a.m. on Tuesday, May 30th 1995, at which time within the constraints imposed by this Court, we’ll hear further argument or testimony with respect to the contempt issues, with the intention that argument or hearing will not extend beyond the morning hours of Tuesday, May 30th.
Anything else from counsel?
MR JONES: Nothing for the Commonwealth, Your Hon- or.
THE COURT: I believe that’s all I have, too. Thanks very much.
MR. LEVENSON: Thank you, Your Honor.
— (5:47 P.M.) —
We acknowledge that counsel for Appellant Hyland has included a copy of the Rule 9015 Hearing, May 26, 1995 (from 1:55 p.m. until 5:45 p.m.), in the Reproduced Record. This, however, does not cure the fact that the original transcript had been withheld from this Court and was, therefore, unreviewable. We are limited to considering only those facts which have been duly certified in the record on appeal. Pa.R.A.P.1921; Possessky v. Diem, 440 Pa.Super. 387, 393 n. 1, 655 A.2d 1004, 1007 n. 1 (1995); Commonwealth v. Montalvo, 434 Pa.Super. 14, 28, 641 A.2d 1176, 1183 (1994). For purposes of appellate review, what is not of record does not exist. Montalvo, supra, at 28, 641 A.2d at 1183. Where the Commonwealth has sought to avail itself of a rule which, by its very terms, might hamper review, we should not permit that *334circumstance to prevent justice being done. Neither the Commonwealth nor the trial court can withhold a portion of the transcript and, at the same time, place its defense on concepts of a “fair trial” and “justice.”
Although the trial court speaks of “evidence that the witness would be unavailable for trial” I find no such evidence to support such an assertion anywhere in the record. The only thing the trial court had at its disposal when the Rule 9015 hearing was commenced on May 26, 1995 was the self-serving statement of the deputy attorney general that the witnesses might refuse to testify and that this would amount to a “breach of contract.”
My colleagues suggest that the language of Rule 9015, insofar as it permits invocation of the rule when “due to exceptional circumstances, it is in the interests of justice that the witness’ testimony be preserved,” allows broad discretion in the trial court concerning the decision to preserve testimony. I vigorously disagree. We are not here concerned with “preserving testimony.” The Rule 9015 hearing was on Friday, May 26th. The trial was scheduled to begin on Tuesday, May 30th. The jury had already been selected on May 22nd. The testimony would be preserved for three days when the witnesses were available and in court on May 30th, the day scheduled for trial and for the swearing of the jury?
One last point displays the error in what transpired, and the misuse of this rule. The rule is intended to preserve testimony for trial. On May 30,1995, after the May 26th hearing, the trial court held the witnesses in contempt and then dismissed the jury. The same trial court that thought it important to preserve the testimony of Reighard and Hyland pursuant to Rule 9015 announced its intention to dismiss the jury on the same afternoon that it found the witnesses in contempt. The transcript reveals:
MR. LEVENSON: Your Honor, I would just inquire as to whether or not the Court intends to make a decision today as to what to do with this particular jury?
*335THE COURT: I’m glad you brought that up. My intention would be to dismiss the jurors when they come in this afternoon.
P.H.T., May 30, 1995 (from 8:35 A.M. until 10:32 A.M.) at 47.
My colleagues’ focus on the reasons advanced by the witnesses for not testifying is misplaced. Reighard and Hyland can neither be required to express their testimony, nor to give reasons for not testifying, until they are properly before the court. That one witness might be in fear of his life, or that another witness chooses to invoke the Fifth Amendment, is irrelevant to the issue presented on this appeal: the necessary cause needed to be demonstrated in order to convene a Rule 9015 proceeding. To argue, as do my colleagues, that the exercise of a constitutional right against self incrimination in a proceeding which has been unlawfully convened somehow renders that proceeding “lawful” and the witness “unavailable” ignores, in my view, basic principles of fundamental due process.
I cannot accept my colleagues’ assertion that both witnesses had been served with subpoenas that they would not honor. Maj. Op. at 318. On the contrary, the certified record demonstrates just the opposite. In the Argument/Hearing Transcript, May 26, 1995 (from 9:05 a.m. until 11:49 a.m.), the following appears:
MR. SIMMERING: ... Mr. Hyland is available. He was served at by a subpoena. He’s available. He’s here today. He hasn’t decided what he’s going to do when he’s called before a Jury in this case, and the reason he hasn’t decided is because he’s aware that he may be in a position that he cannot be compelled to testify.
Transcript, supra, at 32. Similarly, at the other transcript page cited by my colleagues in the Majority, the following appears:
MS. LAZZARI: If it is merely that Mr. Reighard may refuse to testify at trial and face contempt proceedings, I— that just — that reasoning eludes me. As Attorney Leven*336son stated, that’s not an unusual situation. In fact, Pennsylvania has a wealth of case law when that happens at trial.
Mr. Reighard has been served a subpoena. He has been advised that the Commonwealth has been advised by his counsel immediately after that subpoena was served that he would appear. He has appeared at every proceeding for the last five years, I would say this is going on, including Grand Jury proceedings without fail. To say that he is unavailable according to the rule would be an error.
Id. at 37. I am unable to read either of these citations as indicating that the witnesses would not honor the subpoenas, as my colleagues have suggested.
I agree with counsel’s observation that the Commonwealth here was attempting to try their case first by deposition, and then decide whether or not to proceed to trial. And this is borne out by the speed with which the trial, court dismissed the jury, while “preserving” the testimony of Reighard and Hyland for a trial that may never occur.
Rule 9015(l)(b) mandates that the court state on the record the grounds on which the order directing the taking of testimony is based. This subsection is intended to prevent precisely the type of miscarriage of justice that occurred here. Because I conclude that the trial court failed to place on the record any grounds sufficient to support a Rule 9015 deposition, and committed fundamental error in proceeding with a Rule 9015 hearing without any evidence to support it, I would reverse the orders of May 30, 1995 that found Reighard and Hyland in contempt and order that both parties be discharged. Since I conclude that there was absolutely no basis for the proceedings held, pretrial, on May 26 and May 30, 1996, I need not consider Appellant Hyland’s argument that the trial court erred, on January 18, 1995 in granting use immunity purportedly under 42 Pa.C.S. § 5947.
Based on all of the above, I must respectfully dissent.