Com. v. Olshan, G. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GINA MARIE OLSHAN :
:
Appellant : No. 2005 MDA 2018
Appeal from the Judgment of Sentence Entered October 10, 2018
In the Court of Common Pleas of Susquehanna County Criminal Division
at No(s): CP-58-CR-0000366-2016
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: MAY 24, 2019
Gina Marie Olshan (Appellant) appeals from the judgment of sentence
imposed after she pled guilty to aggravated assault, simple assault, and
resisting arrest.1 Upon review, we affirm.
On October 17, 2016, two Pennsylvania State Troopers and three
Susquehanna County Probation Officers responded to a residence in
Susquehanna County to serve Appellant with a bench warrant. After being
handcuffed and placed inside a probation transport vehicle, Appellant became
combative and began kicking the rear passenger-side window of the vehicle.
Appellant was warned she would be placed in leg restraints if her kicking did
not cease, but nevertheless continued. As a result, probation officers Nick
Conigliaro and Allen Smith removed Appellant from the vehicle.
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1 18 Pa.C.S.A. §§ 2702(a)(3), 2701(a)(1), and 5104.
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While being removed from the vehicle, Appellant kicked Officer Smith in
the right leg. After being placed in leg restraints, Appellant began to spit at
Officer James Gulbin. In an attempt to prevent further spitting, Officer
Conigliaro placed his left hand over Appellant’s mouth. In response, Appellant
bit Officer Conigliaro’s left pinky finger. Appellant was eventually placed back
inside the vehicle and transported to the Susquehanna County Jail.
As a result of Appellant’s actions on October 17, 2016, the
Commonwealth filed a criminal complaint on November 2, 2016. After
multiple continuances, Appellant appeared before the trial court on August 23,
2018 and pled guilty to the above crimes.
On October 10, 2018, the trial court sentenced Appellant to a total of 4
to 10 years of incarceration. Appellant filed a timely post-sentence motion,
which the trial court denied on November 21, 2018. Appellant filed this timely
appeal on December 6, 2018, and a concise statement of errors complained
of on appeal on January 2, 2019. The trial court filed its opinion in compliance
with Pennsylvania Rule of Appellate Procedure 1925 on January 14, 2019.
Appellant presents two issues for our review:
A. WHETHER THE SENTENCING JUDGE ERRED IN SENTENCING
APPELLANT TO BOTH AGGRAVATED ASSAULT AND SIMPLE
[ASSAULT] WHEN THE COUNTS OF SIMPLE ASSAULT AND
AGGRAVATED ASSAULT SHOULD HAVE MERGED FOR
[SENTENCING] PURPOSES.
B. WHETHER THE S[EN]TENCING JUDGE ERRED IN FAILING TO
ALLOW APPELLANT CREDIT FOR TIME SERVED PRIOR TO THE
DATE OF SENTENCING.
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Appellant’s Brief at 6 (emphasis omitted).
In her first issue, Appellant claims that the trial court erred in failing to
merge her simple assault and aggravated assault convictions. Appellant
argues that because “all of the statutory elements of simple assault are
included in aggravated assault[,]” the convictions were required to merge
because, as set forth in the information filed by the Commonwealth, both
arose from the same criminal act: the kicking of Officer Smith’s leg.
Appellant’s Brief at 16, 17-19.
In response, the Commonwealth argues against merger, stating that the
facts “do not support merger of [Appellant’s] sentences” because “there were
two victims of her criminal conduct,” and “each act of assault was a separate
act as it related to each victim; one victim was kicked and one victim was
bitten.” Commonwealth Brief at 2.
The trial court agrees, stating it did not merge the convictions for
sentencing purposes “because there were two separate victims.” Trial Court
Opinion, 1/14/19, at 3. “More specifically, [Appellant] was sentenced to
Simple Assault as a result of the injuries caused to Susquehanna County
Probation Officer Allen Smith and [Appellant] was sentenced to Aggravated
Assault as a result of [Appellant] biting Susquehanna County Probation Officer
Nick Con[i]gliaro.” Id. at 3-4.
Upon review, we are unable to reach the merits of Appellant’s merger
claim because she has neglected to ensure that the notes of testimony from
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her guilty plea hearing appear in the certified record. We are thus constrained
to find waiver. This Court has explained:
The fundamental tool for appellate review is the official record of
the events that occurred in the trial court. To ensure that an
appellate court has the necessary records, the Pennsylvania Rules
of Appellate Procedure provide for the transmission of a certified
record from the trial court to the appellate court. The law of
Pennsylvania is well settled that matters which are not of record
cannot be considered on appeal. Thus, an appellate court is
limited to considering only the materials in the certified record
when resolving an issue.
* * *
This Court cannot meaningfully review claims raised on appeal
unless we are provided with a full and complete certified record.
This requirement is not a mere “technicality” nor is this a question
of whether we are empowered to complain sua sponte of lacunae
in the record. In the absence of an adequate certified record,
there is no support for an appellant’s arguments and, thus, there
is no basis on which relief could be granted.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc)
(citations omitted).
“The Rules of Appellate Procedure provide that, after filing a notice of
appeal, an appellant is responsible for requesting ‘any transcript required’ and
making the necessary payment to the court reporter.” Commonwealth v.
Almodorar, 20 A.3d 466, 467 (Pa. 2011) (citing Pa.R.A.P. 1911(a)) (some
citations omitted). “When the appellant . . . fails to conform to the
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requirements of Rule 1911,2 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.” Preston, 904 A.2d at 7 (citing
Commonwealth v. Williams, 715 A.2d 1101, 1105 (Pa. 1998)).3 “It is not
proper for either the Pennsylvania Supreme Court or the Superior Court to
order transcripts nor is it the responsibility of the appellate courts to obtain
the necessary transcripts.” Id.“While the duty is on the appellant to initiate the action necessary to
provide the appellate court with all the documents necessary to allow a
complete and effective appellate review, once the appellant has discharged
that duty, court personnel are charged with assembling and transmitting the
official record to the appellate court.” Almodorar, 20 A.3d at 467 (citing
Williams, 715 A.2d at 1104). As such, “[a]n appellant should not be denied
appellate review if the failure to transmit the entire record was caused by an
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2 Rule 1911(a) reads: “The appellant shall request any transcript under this
chapter in the manner and make any necessary payment or deposit therefor
in the amount and within the time prescribed by Rules 4001 et seq. of the
Pennsylvania Rules of Judicial Administration.” Pa.R.A.P. 1911(a).
3 “Of course, if a party is indigent, and is entitled to taxpayer-provided
transcripts or portions of the record, [she] will not be assessed costs.”
Commonwealth v. Lesko, 15 A.3d 345, 411 (Pa. 2011). “But, that does not
absolve the appellant and [her] lawyer of [her] obligation to identify and order
that which [she] deems necessary to prosecute [her] appeal. The plain terms
of the Rules contemplate that the parties, who are in the best position to know
what they actually need for appeal, are responsible to take affirmative actions
to secure transcripts and other parts of the record.” Id. (citing cases).
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‘extraordinary breakdown in the judicial process.’” Williams, 715 A.2d at
1106.
However, “[i]n the absence of specific indicators that a relevant
document exists but was inadvertently omitted from the certified record, it is
not incumbent upon this Court to expend time, effort and manpower scouting
around judicial chambers or the various prothonotaries’ offices of the courts
of common pleas for the purpose of unearthing transcripts[.]” Preston, 904
A.2d at 7-8 (citation omitted).4
Our review of the certified record reveals that on December 6, 2018,
Appellant filed her notice of appeal with the trial court. Appellant’s Notice of
Appeal, 12/6/18. Attached to Appellant’s notice of appeal is a “Request for
Transcript Pursuant to Pa. R.A.P. 1911,” which reads: “A notice of appeal
having been filed in this matter, the official court reporter is hereby requested
to produce, certify and file the transcript in this matter in conformity with Rule
1933 of the Pennsylvania Rules of Appellate Procedure.” Appellant’s Request
for Transcripts, 12/6/18. Also attached is a completed Administrative Office
of Pennsylvania Courts “Request for Transcript or Copy” form.
From reviewing the Request for Transcript or Copy Form, it is clear that
Appellant’s counsel ordered the transcript of Appellant’s sentencing
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4 See also Lesko, 15 A.3d at 411 (citation omitted) (“[Appellant] cannot fault
the trial court for [her] own failures. Instead, it is only when an appellant can
show that a request was made and erroneously denied . . . that such a claim
would have merit. And that sort of claim ripens, and should be pursued upon,
the very appeal that supposedly was impeded by a missing portion of the
record[.]”).
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proceeding that occurred on October 10, 2018. Appellant’s Request for
Transcript or Copy Form, at 1. Accordingly, the transcript from Appellant’s
October 10, 2018 sentencing appears in the certified record. N.T., 10/10/18,
at 1-21.
However, there exists no evidence of a request for the transcript of
Appellant’s August 23, 2018 guilty plea hearing within the Request for
Transcript or Copy Form. Appellant’s Request for Transcript or Copy Form, at
1-3. Nor is there any other evidence within the certified record indicating that
Appellant ordered, or attempted to order, her guilty plea transcript. Also,
neither the trial court in its opinion, nor either party in their briefs, cites to the
guilty plea transcript, leading us to believe that the transcript was not ordered.
Thus, in reviewing Appellant’s merger claim, we are unable to discern
the factual basis established prior to Appellant pleading guilty to simple assault
and aggravated assault at the August 23, 2018 hearing. 5 While the criminal
information filed by the Commonwealth references the kicking of Officer Smith
in both the simple assault and aggravated assault counts, the aggravated
assault count also includes the biting of Officer Conigliaro. See Criminal
Information, 12/1/16, at 1. Appellant references the information and argues
that it proves a single criminal act was used as the basis for both convictions,
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5 “Before accepting a plea of guilty, the trial court must satisfy itself that there
is a factual basis for the plea.” Commonwealth v. Stenhouse, 788 A.2d
383, 384 (Pa. Super. 2001) (citation omitted). “A factual basis for the plea is
universally required.” Id. (citation omitted).
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and they therefore merge for sentencing purposes. Appellant’s Brief at 17-
19. However, both the Commonwealth and the trial court counter that the
basis for Appellant’s simple assault conviction was the act of kicking Officer
Smith, and the basis for her aggravated assault conviction was the biting of
Officer Conigliaro. Commonwealth Brief at 2; Trial Court Opinion, 1/14/19, at
3-4.
In light of the foregoing, we find Appellant’s first issue to be waived
because there is no transcript of the August 23, 2018 guilty plea hearing in
the certified record to facilitate appellate review. The record indicates that
Appellant did not request the transcript of her guilty plea, and there is no
evidence that the absence of the transcript was caused by any breakdown in
the judicial process. Without the transcript of Appellant’s guilty plea, we are
unable to discern whether or not both convictions arose from a single criminal
act.6 Appellant’s first issue is waived.
In her second issue, Appellant alleges that the trial court erred in failing
to grant her credit for the time-period she spent undergoing in-patient
rehabilitation treatment prior to sentencing. Appellant specifically states that
her “participation in inpatient drug treatment should be viewed as a condition
of bail and credit for time served should be awarded.” Appellant’s Brief at 24.
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6 “No crimes shall merge for sentencing purposes unless the crimes arise from
a single criminal act and all of the statutory elements of one offense are
included in the statutory elements of the other offense.” 42 Pa.C.S.A. § 9765.
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Upon review, Appellant’s second issue is also waived – in this instance
because Appellant failed to comply with Pennsylvania Rule of Appellate
Procedure 1925(b). “If the judge entering the order giving rise to the notice
of appeal desires clarification of the errors complained of on appeal, the judge
may enter an order directing the appellant to file of record in the trial court
and serve on the judge a concise statement of the errors complained of on
appeal.” Pa.R.A.P. 1925(b) (parentheticals omitted). Any issues not raised
in a Rule 1925(b) concise statement will be deemed waived. See Pa.R.A.P.
1925(b)(4)(vii).
Further:
Our jurisprudence is clear and well-settled, and firmly establishes
that: Rule 1925(b) sets out a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b) statement,
when so ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack the authority to
countenance deviations from the Rule’s terms; the Rule’s
provisions are not subject to ad hoc exceptions or selective
enforcement; appellants and their counsel are responsible for
complying with the Rule’s requirements; Rule 1925 violations may
be raised by the appellate court sua sponte, and the Rule applies
notwithstanding an appellee’s request not to enforce it; and, if
Rule 1925 is not clear as to what is required of an appellant, on-
the-record actions taken by the appellant aimed at compliance
may satisfy the Rule. We yet again repeat the principle first stated
in [Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] that must
be applied here: In order to preserve their claims for appellate
review, appellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P.
1925(b) statement will be deemed waived.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (citation and footnote
omitted).
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On December 12, 2018, the trial court filed a Rule 1925(b) order
requiring Appellant to file a concise statement within 21 days.7 Order,
12/12/18. Appellant filed a concise statement on January 2, 2019, solely
raising the merger claim discussed above. Appellant’s Concise Statement,
1/2/19, at unnumbered 3. Appellant’s concise statement was silent as to the
time credit claim subsequently raised by Appellant in her brief filed with this
Court. Id. at unnumbered 1-4; Appellant’s Brief at 21-24. Pursuant to Rule
1925(b)(4)(vii), Appellant’s second issue compels waiver. Id. (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”) (emphasis added).
In sum, both of Appellant’s issues are waived, and we therefore affirm
the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2019
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7In its order, the trial court specifically noted that it was “uncertain as to the
basis of the appeal to the Superior Court[.]” Order, 12/12/18, at unnumbered
1.
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