Com. v. Reeve, O.

J-S45027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
OMAR REEVE
Appellant No. 2712 EDA 2016
Appeal from the PCRA Order July 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011166-2010
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY PANELLA, J. FILED AUGUST 31, 2017
In this timely pro se1 collateral appeal, Appellant raises eight claims.
Two of the claims, see Appellant’s Brief, at 3 (issues number six and eight),
allege allegations of trial court error. We find these claims waived as they
could have been raised on direct appeal. See Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc); 42 Pa.C.S.A.
§§ 9543(a)(3) and 9545(b). The six other claims concern allegations of the
ineffective assistance of counsel.
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*
Retired Senior Judge assigned to the Superior Court.
1
Appointed PCRA counsel withdrew below. See Commonwealth v. Turner,
544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc).
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Appellant’s first such allegation, see Appellant’s Brief, at 3 (issue
number one), is that trial counsel and appellate counsel failed to challenge
the mandatory minimum sentence the trial court imposed. There is a good
reason counsel never made any such challenge—the trial court did not
impose a mandatory minimum sentence in this case.2
The remaining five ineffective assistance claims concern matters
during the trial. See Appellant’s Brief, at 3 (issues number two through five
and seven). There is a glaring problem with our ability to review these
issues—the trial transcripts are not in the certified record.
It is an appellant’s responsibility to ensure that 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 Procedure mandate this. See Pa.R.A.P. 1911(a) (“An
“appellant shall request any transcript required under” the Rules of Appellate
Procedure.”) (emphasis supplied). And Rule 1911 provides a suggested form
for an appellant to use. See id., at (c).
Furthermore, the Court of Common Pleas of Philadelphia County has
issued a local rule of judicial administration that provides that an appellant
must request a transcript using a “Transcript Order Form.” See Phila. County
____________________________________________
2
Interestingly, in six pages of argument, see Appellant’s Brief, at 11-16,
Appellant fails to specifically identify the alleged mandatory minimum
sentence he contends the court imposed. Instead, he only identifies his
aggregate sentence of 12½ to 15 years. See id., at 12.
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L.R. 5000.5(a). 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).
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. 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 Appellant made any
effort to comply with Rule 1911 or the requirements imposed by the local
rule. Accordingly, we find Appellant’s issues waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2017
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