Com. v. Carter, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTOINE CARTER
Appellant No. 311 EDA 2014
Appeal from the PCRA Order entered January 8, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0005989-2007
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 12, 2015
Appellant, Antoine Carter, appeals from the January 8, 2014 order of
the Philadelphia County Court of Common Pleas denying his petition
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Upon review, we affirm.
The trial court summarized the facts and the procedural history of the
case in its Rule 1925(a) opinion, which we incorporate here by reference.
Trial Court Opinion, 4/3/14, 1-2. See also Commonwealth v. Carter, No.
2600 EDA 2008, unpublished memorandum at 1-3 (Pa. Super. filed July 1,
2011). Briefly, the trial court found Appellant guilty of aggravated assault,
robbery, and recklessly endangering another person as of result of Appellant
assaulting the victim over a twelve-hour period because he failed to
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purchase beer with $10 Appellant had previously given to him. Appellant
was sentenced, inter alia, to 25 to 50 years’ incarceration.
On direct appeal, counsel filed a timely Rule 1923 statement because
the trial transcript was not available.1 Counsel also filed a timely Rule
1925(b) statement challenging the sufficiency of the evidence supporting his
convictions. Subsequently, direct appeal counsel filed an Anders2 brief with
this Court along with a petition to withdraw. On July 1, 2011, we affirmed
the judgment of sentence and granted counsel’s petition to withdraw. 3 On
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1
Rule 1923 reads as follows:
If no report of 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 the
best available means, including his recollection. The statement
shall be served on the appellee, who may serve objections or
propose amendments thereto within ten days after service.
Thereupon the statement and any objections or proposed
amendments shall be submitted to the lower court for settlement
and approval and as settled and approved shall be included by
the clerk of the lower court in the record on appeal.
Pa.R.A.P. 1923.
2
See Anders v. California, 386 U.S. 738 (1967).
3
It is worth noting that, Appellant, on direct appeal, challenged the
adequacy of the record based on the absence of the trial transcript. In
response, we noted:
Following the filing of counsel’s Anders brief on July 2, 2010,
appellant filed an application to strike his attorney’s brief and
remand to the Court of Common Pleas to reconstruct the record.
On August 9, 2010, this [C]ourt denied the motion but ordered
(Footnote Continued Next Page)
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December 14, 2011, our Supreme Court denied Appellant’s petition for
allowance of appeal. Commonwealth v. Carter, 34 A.3d 825 (Pa. 2011).
On January 27, 2012, Appellant timely filed a PCRA petition. The trial
court appointed counsel, who filed an amended PCRA petition on December
4, 2012, alleging direct appeal counsel was ineffective for not requesting a
new trial in the absence of trial transcript. The trial court dismissed the
petition, finding direct appeal counsel was not ineffective. This appeal
followed.
Appellant argues the trial court erred in not finding direct appeal
counsel ineffective for failing to request a new trial based on the
unavailability of the trial transcript, as opposed to filing a Rule 1923
statement. We disagree.
In reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination “is supported by the record and free
of legal error.” Commonwealth v. Rainey, [928 A.2d 215, 223
(Pa. 2007)] (citations omitted). To be entitled to PCRA relief,
appellant must establish, by a preponderance of the evidence,
his conviction or sentence resulted from one or more of the
enumerated errors in 42 Pa.C.S. § 9543(a)(2) . . . .
_______________________
(Footnote Continued)
appellant’s counsel to provide appellant with transcripts of the
court proceedings and/or any Pa.R.A.P. 1923 statements, and
allowed appellant 60 days to file pro se response. Appellant
failed to file a response.
Carter, 2600 EDA 2008, at 3 n.2. In addition to addressing counsel’s
petition to withdraw, this Court also addressed the sufficiency of the
evidence claims with regard to his convictions. Id. at 4-9. We concluded
the evidence was sufficient to support Appellant’s convictions. Id.
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Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
Here, Appellant argues he is entitled to relief based on direct appeal
counsel’s ineffective assistance. We review ineffective assistance claims
according to the following standard:
To prevail on an ineffectiveness claim, appellant
must establish:
(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s actions or
failure to act; and (3) [appellant] suffered prejudice
as a result of counsel’s error such that there is a
reasonable probability that the result of the
proceeding would have been different absent such
error.
Commonwealth v. Lesko, [15 A.3d 345, 373-74 (Pa. 2011)]
(citing Commonwealth v. Pierce, [527 A.2d 973, 975 (Pa.
1987)]). Failure to prove any prong of this test will defeat an
ineffectiveness claim. Commonwealth v. Basemore, [744
A.2d 717, 738 n.23 (Pa. 2000)] (citation omitted). “[I]f a claim
fails under any necessary element of the Strickland [v.
Washington, 466 U.S. 668 (1984)], test, the court may
proceed to that element first.” Lesko, at 374 (citations
omitted). When an appellant fails to meaningfully discuss each
of the three ineffectiveness prongs, “he is not entitled to relief,
and we are constrained to find such claims waived for lack of
development.” Commonwealth v. Steele, 961 A.2d 786, 797
(Pa. 2008); see also Commonwealth v. Walter, 966 A.2d
560, 566 (Pa. 2009) (citation omitted).
Id. at 804.
Regarding the issue of the unavailability of trial transcript,
[t]he U.S. Supreme Court has recognized that adequate and
effective appellate review is impossible without a trial transcript
or adequate substitute and has held that the States must
provide trial records to indigent inmates. See Bounds v.
Smith, 430 U.S. 817 [] (1977) (citing Griffin v. Illinois, 351
U.S. 12 [] (1956)). [Our Supreme Court] has similarly
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concluded that a criminal defendant is entitled to “a full
transcript or other equivalent picture of the trial proceedings” in
order to engage in meaningful appellate review.
[Commonwealth v. Marshall, 812 A.2d 539, 551 (Pa. 2002)]
(quoting Commonwealth v. Shields, [383 A.2d 844, 846 (Pa.
1978)). However, in order to “establish entitlement to relief
based on the incompleteness of the trial record, [appellant] must
first make some potentially meritorious challenge which cannot
be adequately reviewed due to the deficiency in the transcript.”
Id.
Commonwealth v. Sepulveda, 55 A.3d 1108, 1149 (Pa. 2012).
Appellant baldy asserts that the Rule 1923 statement was inadequate
because: (i) it provided extremely short summaries of complainant’s
testimony, provided little other information about the trial, and failed to
provide the names of the testifying officers, and (ii) “did not detail the cross-
examination of the complainant and the inconsistent statements he made at
trial.” Appellant’s Brief at 7. Appellant concludes that “[a] 1923 statement
that does not even contain the names of the witnesses is not ‘equivalent
picture of the trial proceedings.’” Id. (quoting Shields).
Appellant miscomprehends the import of Rule 1923 and Shields. In
Appellant’s view, in essence, anything less than the transcript is insufficient
for purposes of appellate review. Neither Rule 1923, nor Shields or any
other authority supports such interpretation.
Even if we were to agree that failure to mention the witnesses by
name affected Appellant’s entitlement to “a full transcript or other equivalent
picture of the trial proceedings,” Shields, 383 A.2d at 846, Appellant fails to
recognize that to establish entitlement to relief based on the incompleteness
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of the record, Appellant “must first make some potentially meritorious
challenge which cannot be adequately reviewed due to the deficiency in the
transcript.” Id. Appellant identifies as potentially meritorious challenges
the sufficiency of the evidence to support his convictions, and the credibility
of victim. These claims, however, were adequately presented to and
addressed by this Court on direct appeal. In fact, in addition to denying
Appellant’s sufficiency of the evidence claims on its merits, this Court denied
Appellant’s application to remand the matter to the trial court to reconstruct
the record. Nonetheless, we granted Appellant the opportunity to address
any deficiency in the record, but Appellant failed to do so. See Carter, No.
2600 EDA 2008, at 3 n.2.
With regard to the credibility of victim, Appellant fails to recognize that
this Court does not make credibility determinations, nor can we substitute
our judgment with that of the trial court. See, e.g., Commonwealth v.
Emler, 903 A.2d 1273, 1277 (Pa. Super. 2006). Accordingly, this Court
could not, and would have not, reversed the trial court based on our
assessment of victim’s credibility. See Carter, No. 2600 EDA 2008, at 5.
In light of the foregoing, we find Appellant failed to specify any
potential meritorious claim that could not be developed or reviewed because
the trial transcript was not available. Accordingly, we conclude Appellant’s
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claim that direct appeal counsel was ineffective fails because the underlying
claim has no arguable merit.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2015
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4
Because we conclude Appellant’s claim does not have arguable merit, we
need not address the other two prongs of standard for ineffective assistance
claims. Basemore, 744 A.2d at 738 n.23 (Pa. 2000).
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