Com. v. Cintron, R. (memorandum)

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J-A06008-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RICHARD CINTRON, Appellant No. 1906 EDA 2012 Appeal from the Order Entered May 11, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0412411-1986 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RICHARD CINTRON, Appellant No. 1907 EDA 2012 Appeal from the Order Entered May 11, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0908661-1986 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RICHARD CINTRON, Appellant No. 1908 EDA 2012 Appeal from the Order Entered May 11, 2012 In the Court of Common Pleas of Philadelphia County J- A06008-14 Criminal Division at No(s): MC-51-CR-0833621-1987 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RICHARD CINTRON, Appellant No. 1909 EDA 2012 Appeal from the Order Entered May 11, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-1111161-1990 BEFORE: BENDER, P.J.E., PANELLA, J., and LAZARUS, J. MEMORANDUM BY BENDER, P.J.E. FILED MAY 01, 2014 Appellant, Richard Cintron, appeals from four orders reducing the -captioned cases. Because there is no transcript for the hear aside or remit the forfeitures, and because the trial court has determined that it is unable to reconstitute the record, we remand for a new hearing on those petitions. Four bail forfeitures were ordered due to Appell for court on several dates between September 17, 1986, and April 25, 1991. The Commonwealth did not seek payment on these forfeitures for nearly two decades. When the Commonwealth sought to collect, Appellant filed petitions to set aside or remit the forfeitures on December 27, 2011. A hearing on the petitions was held before Hearing Officer Dominic J. Rossi on -2- J- A06008-14 January 17, 2012. Appellant testified at the hearing and was represented by counsel. The Commonwealth was not represented at the hearing. Subsequently, on May 3, 2012, Mr. Rossi recommended reductions in the bail forfeitures. His recommendations were approved by President Judge Pamela Pryor Dembe. President Judge Dembe then issued the four orders implementing the recommended reductions on May 11, 2012.1 Appellant filed notices of appeal from the four orders on September 19, 2012.2 Soon thereafter, it became apparent that the transcript of the January 17, 2012 hearing could not be produced. On September 26, 2012, Judge Dembe filed an opinion pursuant to Pa.R.A.P. 1925(a), in which she recommended to this Court that the matter be remanded for a new hearing meaningful review of the cases with Trial Court Opinion, 9/26/12, at 1. This Court did not remand for a new hearing. Instead, this Court remanded for the production of a statement in ____________________________________________ 1 The bail forfeitures were reduced as follows: CP-51-CR-0412411-1986: reduced by 30% CP-51-CR-0908661-1986: reduced by 50% MC-51-CR-0833621-1987: reduced by 30% MC-51-CR-1111161-1990: reduced by 30% 2 Acting sua sponte, this Court consolidated these appeals by order dated June 6, 2013. -3- J- A06008-14 Appellant proposed Rule 1923 statements for each of the four cases and served them upon the Commonwealth. The Commonwealth prepared responses and both were filed with Judge Dembe for settlement and approval on August 30, 2012. On September 5, 2013, Judge Dembe filed a supplemental 1925(a) opinion, which read, in pertinent part: The lower court did not preside over [the January 17, 2012] hearing on the petitions to vacate bail judgments which are the subject of the instant appeal. The Commonwealth had not entered an appearance in the case at that point and [an] Assistant District Attorney was not present at the hearing. The lower court is not able to make a meaningful assessment of the objections. A new hearing is the easiest and fairest way to resolve this matter. In the interests of justice, the matter should be returned to the lower court for a new hearing and jurisdiction relinquished. Second Supplemental Opinion, 9/5/13, at 2. Appellant now presents the following question for our review: Where the transcript of hearings on petitions to set aside or remit bail judgments cannot be produced by the court reporter Transcript cannot be settled and approved under Pa.R.A.P. 1923, should the appeals be remanded to the trial court for new hearings on the merits? Here, both the trial court and Appellant are in accord that this matter should be remanded for a aside or remit bail forfeitures. Therefore, we need only consider the -4- J- A06008-14 The Commonwealth first contends that Appellant is not entitled to a new hearing due to his failure to comply with Rule 1923. The repare the statement as required by Rule 1923. See 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 th Commonwealth posits that because Appellant did not seek to augment his Appellant fell short of utilizing the best available means to reconstruct the hearing transcript. Consequently, the Commonwealth relies on Commonwealth v. Harvey, 32 A.3d 717 (Pa. Super. 2011), to suggest to comply with Rule 1923. We disagree. Harvey is misplaced as that case is easily distinguishable on many grounds. In Harvey, the appellant argued that he was entitled to a new trial because his own Rule 1923 statement was not an adequate substitute for the missing transcript. Harvey, 32 A.3d at 721. On appeal, Harvey admitted that the inadequacy of the Rule 1923 -5- J- A06008-14 recollection of events was vague and he took no trial notes. Appellate counsel [also admitted] that her review in preparing the statement in [the] absence of [a] transcript was limited to the case file, which consisted of correspondence with appellant, the available discovery, and the preliminary hearing notes of testimony. Id. The trial court in Harvey Id. This Court affirmed. The trial court in this case, however, has itself requested remand for a new hearing after finding that meaningful review is impossible without a transcript. Furthermore, the trial judge did not conduct the hearing from opinion and supplemental statements do not indicate any failure on Commonwealth did not enter its appearance at the January 17, 2012 hearing.3 Thus, the Commonwealth has no factual basis upon which to obj concerning what occurred at that hearing. None of the circumstances were present in Harvey; therefore, that case is inapposite and not controlling authority. ____________________________________________ 3 functioning bail system that discourages -6- defendants from failing to 2 J- A06008-14 Alternatively, the Commonwealth to focus his argument that remand is appropriate based on Rule 1923, and substantive claims have been waived. Given that the heart of this matter is the absence of a reliable record upon which to conduct meaningful appellate review, a position adopted by the trial court, this argument is without merit. We conclude, therefore, in accordance with the recommendation of the petitions to set aside or remit the bail forfeitures. Orders vacated. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/1/2014 -7-

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