Com. v. O'Hara, J.

J-S76017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN ELLSWORTH O’HARA
Appellant No. 786 WDA 2014
Appeal from the Order April 9, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): 1034/1065 of 1990
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 5, 2015
Appellant, John Ellsworth O’Hara, appeals pro se from the order
entered April 9, 2014, in the Court of Common Pleas of Erie County, which
denied his “Petition for Review from Denial of Petitioner’s Private Criminal
Complaint” filed against the Superintendent of SCI-Albion. After careful
review, we affirm.
On August 9, 1990, O’Hara entered a guilty plea to two counts of
Burglary, Aggravated Indecent Assault, and Possessing Instruments of
Crime. The trial court sentenced O’Hara on September 10, 1990. O’Hara
filed a motion for reconsideration of sentence on January 18, 1991, which
the trial court denied. O’Hara did not file a direct appeal.
Over the following years, O’Hara has filed no less than nine PCRA
petitions or sundry other motions, all of which were denied as either
J-S76017-14
meritless or untimely and affirmed as such on appeal. Relative to the
instant case, on April 8, 2014, O’Hara filed a “Petition for Review from Denial
of a Petitioner’s Private Criminal Complaint.” O’Hara alleged in the petition
that he filed the private complaint against “Nancy Giroux – Superintendent
and Jack Denari [sic] – District Attorney, Respondents,” on February 28,
2014. Neither the private criminal complaint nor the district attorney’s
alleged denial of the complaint are noted in the docket or otherwise
contained in the certified record. The trial court, noting that the private
criminal complaint was not filed by the district attorney’s office, treated
O’Hara’s petition for review as a petition under the Post Conviction Relief
Act,1 and denied the petition. Order, 4/9/14. This timely pro se appeal
followed.
On appeal, O’Hara raises 22 issues for our review – many of which
were not included in his court ordered 1925(b) statement. Preliminarily, we
note that O’Hara’s failure to ensure a complete certified record precludes our
review of the issues he purports to raise on appeal. The fundamental tool
for appellate review is the official record of the events that occurred in the
lower court, and “appellate Courts are limited to considering only those facts
that have been duly certified in the record on appeal.” Commonwealth v.
Williams, 715 A.2d 1101, 1103 (Pa. 1998) (citation omitted). Therefore,
____________________________________________
1
42 PA.CONS.STAT.ANN. §§ 9541-9546.
-2-
J-S76017-14
this Court cannot meaningfully review claims raised on appeal unless we are
provided with a full and complete certified record. See Commonwealth v.
O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006). “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, 7 (Pa. Super. 2006) (en banc).
“Our law is unequivocal that the responsibility rests upon the appellant
to ensure that the record certified on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.” Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008).
Therefore, “we can only repeat the well established principle that ‘our review
is limited to those facts which are contained in the certified record’ and what
is not contained in the certified record ‘does not exist for purposes of our
review.’” Id. (citation omitted).
Instantly, as noted, the certified docket contains no record whatsoever
that O’Hara filed a private criminal complaint on February 28, 2014, or that
the district attorney subsequently disapproved thereof. Deprived as we are
of the documents essential to a meaningful review of the purported
disapproval of O’Hara’s complaint, we are constrained to find that the issues
O’Hara raises on appeal are waived.
Even if we were to review O’Hara’s claims, they would not merit relief.
O’Hara summarizes the gist of his argument thusly:
-3-
J-S76017-14
The Superintendent Nancy Giroux cannot produce or certify in
writing [t]hat she has authorization for detention. She caanot
[sic] produce the documents that is giving the authorization.
Which only goes to show that appellant did prove a prima facie
case and that the District Attorney’s Office should of [sic] filed
the charges against her. Is appellant challenging his conviction,
no.
Appellant’s Brief at 14-15.
Although O’Hara’s brief contains scant citation to supporting legal
authority, we gather that he is alleging that the records officer at SCI-Albion
had no copy of his sentencing order, and therefore the state prison did not
have legal authority to confine him. Section 9764 of the Sentencing Code
states, in part, that
Upon commitment of an inmate to the custody of the
Department of Corrections, the sheriff or transporting
official shall provide to the institution’s records officer or
duty officer, in addition to a copy of the court commitment
form DC-300B generated from the Common Pleas Criminal Court
Case Management System of the unified judicial system … [a]
copy of the sentencing order and any detainers filed against
the inmate which the county has notice.
42 Pa.C.S. § 9764(a)(8) (emphasis added). Recently, in Joseph v. Glunt,
96 A.3d 365 (Pa. Super. 2014), appeal denied, 101 A.3d 787 (Pa. 2014),
our Court reiterated:
None of the provisions of section 9764 indicate an affirmative
obligation on the part of the DOC to maintain and produce the
documents enumerated in subsection 9764(a) upon the request
of the incarcerated person. Moreover, section 9764 neither
expressly vests, nor implies the vestiture, in a prisoner of any
remedy for deviation from the procedures prescribed within.
-4-
J-S76017-14
Id. at 371. This Court further noted that “courts confronting this issue in
the past have deemed a record of the valid imposition of sentence as
sufficient authority to maintain a prisoner’s detention notwithstanding the
absence of a written sentencing order under [section] 9764(a)(8).” Id. at
372.
Instantly, the docket indicates a valid judgment of sentence was
entered on September 10, 1990. A copy of the sentencing order is
contained in the certified record. Therefore, we would find O’Hara’s claim
that his detention is illegal under section 9764 to be patently meritless.
Order affirmed.2
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2015
____________________________________________
2
To the extent the trial court treated O’Hara’s petition for review as a serial
PCRA petition, we find this decision to have been in error.
-5-