Com. v. Powell, O. ( 2019 )

J-S11012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR POWELL :
:
Appellant : No. 1749 EDA 2018
Appeal from the Order May 29, 2018
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002378-2006
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED JULY 1, 2019
Appellant, Omar Powell, appeals the May 29, 2018 order denying his
request for transcripts. We affirm.
The trial court summarized the factual and procedural history of this
case in its opinion pursuant to Pa.R.A.P. 1925(a), as follows:
[Appellant] has filed this appeal from the denial of his pro
se “Request for Transcripts.” It is alleged that [Appellant] was
“deprived...of his right to an effective appeal,” and “deprived...of
a meaningful review of the record requested...” as a result of the
court denying his motion.1 These claims are unfounded.
1 See Concise Statement.
[Appellant] was found guilty by jury of Murder of the First
Degree on March 29, 2007. This conviction resulted from the
murder of Christine Kennedy, which occurred on March 10, 1997.
Thereafter, [Appellant] was sentenced to life imprisonment on
April 17, 2007. Since that date, [Appellant] has had his Murder
of the First Degree conviction examined by the Superior Court at
least six (6) times, and he has not been entitled to any relief.2
Currently, no matters are pending with this [c]ourt.
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2 Commonwealth v. Omar Powell, 2285 EDA 2007
(Pa.Super. July 14, 2008); Commonwealth v. Omar
Powell, 2083 EDA 2010 (Pa.Super. August 22, 2011);
Commonwealth v. Omar Powell, 3199 EDA 2012
(Pa.Super. June 19, 2013); Commonwealth v. Omar
Powell, 1317 EDA 2014 (Pa.Super. December 1,
2014); Commonwealth v. Omar Powell, 1364 EDA
2017 (Pa. Super. February 12, 2018); Commonwealth
v. Omar Powell, 1799 EDA 2017 (Pa. Super. February
22, 2018).
Previously, counsel was appointed to represent [Appellant]
both at trial and in Post Conviction Relief Act (hereinafter PCRA)
proceedings. Most recently, on September 12, 2016, Attorney
Matthew Rapa was appointed to represent [Appellant] in regards
to his fourth PCRA petition. Counsel’s independent inquiry
revealed no basis for relief, and he filed a Motion to Withdraw and
a Finley3 no-merit letter indicating the same. This [c]ourt entered
an order denying the PCRA petition, and [Appellant] appealed.
The Superior Court affirmed the denial of [Appellant’s] fourth
PCRA petition on February 22, 2018.
3Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988).
On May 8, 2018, [Appellant] attempted to revive his case
yet again by filing a Request for Transcripts, with a supporting
affidavit alleging indigent status and requesting the cost of the
transcripts be waived. In response, this [c]ourt issued an order
denying the request for transcripts on May 29, 2018, emphasizing
that [Appellant] had no matters pending for which transcripts
would be required, and that all the materials he requested had
previously been provided. [Appellant] filed a Notice of Appeal
challenging that order on June 13, 2018, and he was directed to
comply with Pa.R.A.P. 1925(b) on June 14, 2018. On June 29,
2018, [Appellant] filed a “Concise Statement Pursuant to
Pa.R.A.P. 1925(b)(1)” (hereinafter Concise Statement), making
five (5) allegations regarding the denial of his request.
Trial Court Opinion, 7/27/18, at 1-2.
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Appellant presents the following issues for our review, which we set forth
verbatim:
Did the Common Pleas Court Fail to Provide Proof that a copy of
the requested record has in fact been provided to the defendant
(Not counsel)?
Did the Common Pleas Court deprive defendant of the right to an
effective appeal by denying him access to the trial transcript, and
PCRA Hearing Transcript in the past and present?
Did the Common Pleas Court deprive defendant of a meaningful
review of the record requested insuring that he will be unable to
avail the perfection of an adelquate appeal of his conviction?
Did the Common Pleas Court error when it fail to provide an
alternative to obtain the record thedefendant requested?
Did the Common Pleas Court deprive defendant of a meaningful
review of the requested record insuring that he will never have a
equal opportunity in litigating any issues fairly in the future, as it
did in the past, and also preventing him from discovering any
issues within the record?
Appellant’s Brief at 2-3.
Appellant does not separate the argument portion of his brief into five
distinct sections corresponding to his statement of the questions involved.
Instead, he presents one undivided discussion, contending that the common
pleas court erred when it denied him access to transcripts. Appellant’s Brief
at 4-5. Appellant asserts that “even though trial counsel was provided with a
copy [counsel] never turned over a copy to [Appellant].” Id. at 4. Appellant
further argues that:
because he was never provided with a copy of the requested
transcript by counsel and the court it was impossible for him to
prepare a meaningful ap[p]eal for the court to review, and that
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for whatever reason [Appellant] is not at fault for not having
essential transcripts in his possession.
Id.
In Commonwealth v. Martin, 705 A.2d 1337 (Pa. Super. 1998), under
circumstances similar to those presented in the instant case, we affirmed the
trial court’s denial of such a request for the following reasons:
The resolution of this appeal is governed by this Court’s
holding in Commonwealth v. Ballem, 482 A.2d 1322
(Pa.Super.1984). Like the appellant in that case, the instant
appellant asserts that the requested documents are necessary in
order for him to pursue relief in post-conviction proceedings. As
such, the reasoning that was affirmed in Ballem applies directly
to this matter. That is, despite the validity of the asserted
necessity for a Post Conviction Relief Act motion,
no such action is currently pending. Consequently,
the lower court, confronted only with the instant
petition, was in no position to assess appellant’s
claims to determine whether they constituted
compelling reasons warranting a grant of his petition.
In such a case, and until a proceeding to question the
record is commenced, we find no abuse of the lower
court’s discretion in denying appellant’s request.
Id. at 1324.
Martin, 705 A.2d at 1338 (footnotes omitted).
This Court again addressed the issue in Commonwealth v. Crider, 735
A.2d 730, 733 (Pa. Super. 1999). In Crider, the defendant filed a motion
seeking, inter alia, a copy of the certified record and the transcripts of his
guilty plea and sentencing hearings in order to pursue PCRA relief. Id. at 731.
In upholding the trial court’s denial of Crider’s motion, this Court explained:
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The trial court correctly observed that a court is not required
to comply with a defendant’s request for transcripts in order to
pursue relief in a PCRA proceeding where no such action is
pending. [Martin, 705 A.2d 1337]; Ballem, [482 A.2d 1322]. In
Martin, this Court rejected the appellant’s argument that the
documents requested through defendant’s pro se motion were
necessary in order for the defendant to pursue relief in post-
conviction proceedings. Martin, 705 A.2d at 1338. We adopted
the reasoning in Ballem that a trial court, confronted only with a
petition for production of documents where no action is pending,
is in no position to assess a petitioner’s claims to determine
whether they constitute compelling reasons warranting a grant of
the petitioner’s petition. Id. Here, as in Martin, we decline to
find an abuse of discretion in denying the petitioner’s request until
a proceeding to question the record is commenced. See id.
Crider, 735 A.2d at 733.
In addressing Appellant’s claims herein, the trial court cited Martin and
Crider in concluding that it was not required to grant a request for transcripts
when the request was not connected to a pending action. Trial Court Opinion,
7/27/18, at 3. The court also stated the following in furtherance of its
decision:
Aside from the absence of a pending matter, [Appellant] has
failed to identify the specific transcripts he is seeking.4 He also
ignores the fact that all of [the] transcripts have already been
provided to him on numerous occasions.5 Despite having multiple
opportunities to review these materials during the course of the
appeal process, he has been unable to produce a claim that would
entitle him to relief. Even when counsel was appointed to
represent [Appellant’s] interests, they were unable to substantiate
any legitimate claims for relief on his behalf. It is unlikely that
there is anything left to be discovered in the record if [Appellant’s]
motion is granted. This most recent filing is nothing more than a
thinly veiled attempt to re-litigate issues that have previously
[been] deemed meritless.
4 [Appellant’s] failure to specify which transcripts he
is requesting suggests that he has not yet established
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a new basis for challenging his conviction. [Appellant]
is really engaging in a fishing expedition, hoping to
find a new issue to raise by reviewing the entire record
yet again. This is not a basis for granting his request.
5 Throughout the history of this case, all of the
transcripts have been provided to [Appellant] at one
point or another for his review, and he utilized them
in crafting his series of appeals. Nothing in the record
has changed since the last time the Superior Court
denied relief on February 22, 2018, so there is no
reason to provide [Appellant] with the transcripts
once more.
Trial Court Opinion, 7/27/18, at 3-4.
Instantly, Appellant had not filed a PCRA petition or initiated any other
pending matter when he requested copies of the transcripts. Consequently,
pursuant to Martin, Crider, and Ballem, the trial court did not err in denying
Appellant’s request. Furthermore, Appellant provides no argument directly
addressing our holdings in Martin, Crider and Ballem. Moreover, as the
common pleas court observed, Appellant has not identified which transcript
he is seeking or the basis for the request; thus, his claim lacks specificity and
could be waived on that basis.1 Lastly, evidence of record reflects that
Appellant has received these transcripts previously. Accordingly, we conclude
that Appellant is not entitled to relief on his claims.
____________________________________________
1 “The failure to develop an adequate argument in an appellate brief may
result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth v.
Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007). We shall not develop an
argument for an appellant, nor shall we scour the record to find evidence to
support an argument; instead, we will deem issue to be waived. Id.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/19
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