A blog of the Philadelphia Bar Association’s Criminal Justice Section

seal_colorBy Burt Rose

Click for Opinion

This case was before Judges GANTMAN, JENKINS and MUSMANNO. Judge Jenkins wrote the Opinion for the Panel.


On direct appeal, Gonzalez was contending that the trial court had erred in admitting into evidence an audiotape of the rape victim’s statement to the police made several days after the incident. The trial court held that the audiotape was admissible under Pa.R.E. 613(c) as a prior consistent statement and permitted the Commonwealth to play the tape during trial. Gonzalez contended that the audiotape did not qualify as a prior consistent statement and that the audiotape prejudiced him because the victim’s sobbing voice made the jury sympathize with her and become inflamed against him.


The Panel held that this claim was waived. As the appellant, Gonzalez had the duty to ensure that the record was complete for purposes of appellate review. However, the record in this case did not include the audiotape or even a transcript of the victim’s statement. Judge Jenkins wrote that this omission was “thwarting review of Gonzalez’s argument”. For this reason, the Panel did not address the merits of this argument.


Reminder for practitioners: Under the Pennsylvania Rules of Appellate Procedure, any document which is not part of the officially certified record “is deemed non-existent—a deficiency which cannot be remedied merely by including copies of the missing documents in a brief or in the reproduced record”. 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 decide the issue. Under Pa.R.A.P.1931(d), the clerk of the lower court “shall, at the time of the transmittal of the record to the appellate court, mail a copy of the list of record documents to all counsel of record, or if unrepresented by counsel, to the parties at the address they have provided to the clerk. The clerk shall note on the docket the giving of such notice.” If counsel discovers that anything material has been omitted from the certified record, the omission can be corrected pursuant to the provisions of Rule of Appellate Procedure 1926. Under that Rule, an appellate court may direct that an omission or misstatement shall be corrected through the filing of a supplemental certified record.


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