Com. v. Brown, K. ( 2018 )

J-S76013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
KELVIN D. BROWN :
: No. 3309 EDA 2016
Appellant :
Appeal from the Judgment of Sentence October 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000355-2010
CP-51-CR-0001513-2010
CP-51-CR-0001514-2010
BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.
JUDGMENT ORDER BY PANELLA, J. FILED MARCH 27, 2018
Appellant raises four issues on appeal. See Appellant’s Brief, at 7. He
addresses all four in just 4½ pages of argument. In the entire brief, there is
not a single citation to the notes of testimony from either the trial or
sentencing.
Apart from the woefully deficient legal arguments supporting each issue,
there is a glaring problem with our ability to review these issues—the trial
transcripts (from the multi-day trial) and the sentencing transcript are not in
the certified record.
It is an appellant’s responsibility to ensure the certified record contains
all the items necessary to review his claims. See, e.g., Commonwealth v.
Tucker, 143 A.3d 955, 963 n.3 (Pa. Super. 2016). The Rules of Appellate
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* Retired Senior Judge assigned to the Superior Court.
J-S76013-17
Procedure mandate this. See Pa.R.A.P. 1911(a) (mandating that an “appellant
shall request any transcript required”). And Rule 1911 even provides a
suggested form for an appellant to use. See id., at (c).
Furthermore, the Court of Common Pleas of Philadelphia County had a
local rule of judicial administration that, at the time Appellant filed his notice
of appeal, provided an appellant must request a transcript using a “Transcript
Order Form.” See Phila. R.J.A. No. 5000.5(a).1 When a litigant is requesting
the transcript for the purpose of an appeal, the form must be filed with the
trial court as well as with the Prothonotary of the appropriate appellate court.
See id., at (c)(1),(2)(i, x). See also The Philadelphia Courts, Court Reporter
and Interpreter Services,
https://www.courts.phila.gov/departments/courtreporters.asp (last visited
3/6/18).
Regarding missing transcripts, this Court has stated that it “is not proper
for … the Superior Court to order transcripts nor is it the responsibility of the
appellate courts to obtain the necessary transcripts.” Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc). And “any claims that
cannot be resolved in the absence of the necessary transcript or transcripts
must be deemed waived for the purpose of appellate review.” Id. (citation
omitted). See also Commonwealth v. Petroll, 696 A.2d 817, 836 (Pa.
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1 The applicable rule has since been revised and renumbered, effective
January 6, 2018. See Phila. R.J.A. No. 4007. Requests for Transcripts.
-2-
J-S76013-17
Super. 1997) (“When a claim is dependent on materials not provided in the
certified record, that claim is considered waived.”)
There is no indication in the certified record that Appellant2 made any
effort to comply with Rule 1911 or the requirements imposed by the local
rule.3 And there is no indication in the docket sheets that the transcripts were
ever filed of record. Accordingly, we find Appellant’s issues waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/18
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2The trial court appointed Robert J. Dixon, Esquire, to represent Appellant on
appeal.
3In his notice of appeal, Appellant includes the statement “Notice of Appeal
and Proof of service to be served on the following: … COURT STENOGRAPHER,
100 South Broad Street, 2nd Floor, Phila., PA 19110[.]” This is insufficient to
establish compliance with the applicable rules.
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