Com. v. Hamilton, H.

• Court: Superior Court of Pennsylvania
• Decided: July 17, 2017
• Docket: Com. v. Hamilton, H. No. 497 MDA 2016
• Status: Unpublished

Opinion

J-A09016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

HARRY E. HAMILTON,

Appellant No. 497 MDA 2016

Appeal from the Judgment of Sentence February 23, 2016 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-SA-0000005-2016

BEFORE: GANTMAN, P.J., SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 17, 2017

Appellant, Harry E. Hamilton, appeals pro se from the judgment of

sentence entered following his conviction of the summary offense of driving

while operating privilege is suspended or revoked.1 In addition, Appellant

has filed an application for post submission relief. We deny Appellant’s

application and affirm the judgment of sentence.

We summarize the procedural history of this case as follows. At

approximately 11:30 p.m. on October 31, 2015, Officer Mark Swindell issued

a traffic citation to Appellant, who was driving a gray Hyundai Tucson. The

citation charged Appellant with driving while his operating privilege was

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1 75 Pa.C.S. § 1543(a). J-A09016-17

suspended or revoked. The citation indicated that Appellant’s license had

been suspended effective August 7, 2015.

On December 11, 2015, Appellant appeared before a district

magistrate and was convicted. Appellant then timely appealed to the court

of common pleas, and a hearing was scheduled for February 23, 2016, at

1:00 p.m. On February 19, 2016, Appellant filed a “Motion for Telephone

Testimony and Continuance” seeking permission to have two attorneys who

had been served subpoenas by Appellant to provide their testimony over the

telephone. Also on that date, Appellant filed a “Motion for Nunc Pro Tunc

Appeal Relief under Coram Nobis and Stay or Continuance” seeking

permission to appeal a 2013 conviction for driving under suspension.

On February 22, 2016, the assistant chief counsel for the Pennsylvania

Department of Transportation (“PennDOT”) filed a “Motion to Quash

Subpoena Pursuant to Pennsylvania Rule of Civil Procedure 234.4” alleging

Appellant provided insufficient notice and service of the summary appeal

hearing. In an order dated February 22, 2016, and filed on February 23,

2016, the trial court granted PennDot’s motion on the basis of insufficient

notice and service. The trial court’s order further indicated that the court

had received from PennDOT various court orders that were responsive to the

subpoena at issue and noted that those documents would be made available

to all parties and counsel at the time of the scheduled hearing.

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On February 23, 2016, Appellant filed a motion to suppress all

evidence for want of probable cause to effectuate the detention of Appellant

on the night in question.2 Also on that date, the trial court convicted

Appellant of driving while operating privilege is suspended or revoked

pursuant to 75 Pa.C.S. § 1543(a) and sentenced him to pay a fine of

$200.00. In three additional orders dated February 23, 2016, the trial court

(1) denied Appellant’s motion to suppress, (2) denied Appellant’s motion for

nunc-pro-tunc-appeal relief under coram nobis and stay or continuance, and

(3) granted the oral motion of attorney Ronald McGlaughlin to quash a

subpoena. This timely pro se appeal followed. Both Appellant and the trial

court have complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Whether the trial court erred as a matter of law when failing to permit examination or a determination of probable cause for the stop and admitted evidence obtained without probable cause?

2. Whether the Court errs in directing an appellate Court for appeal?

3. Whether there is in fact a two part analysis under section 1543 and does it include proving the correctness of the records submitted from the Department of Transportation commencing with the initial suspension and essentially negating requested nunc pro tunc relief?

2 We note that Appellant’s motion to suppress was time-stamped at 12:57 p.m., which was three minutes before the 1:00 p.m. scheduled de novo hearing.

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4. Whether the trial court acted with sufficient bias to require recusal?

5. Whether there was sufficient evidence to convict?

6. Whether the court improperly denied defense witnesses limiting examination and cross examination of witnesses?

7. Whether the Court errs in relying upon orders or directions of recused judges?

8. Whether the Court errs in not extending time to file a statement of matters complained of on appeal?

Appellant’s Brief at 4.

Appellant first argues that the trial court erred in failing to grant his

motion to suppress. Appellant’s Brief at 8-9. Essentially, Appellant claims

that there was never a “true suppression hearing” at which the officer would

have been required to establish probable cause. Id. at 8.

The fundamental tool for appellate review is the official record of the

events that occurred in the trial court. Commonwealth v. Preston, 904

A.2d 1, 6 (Pa. Super. 2006) (citing Commonwealth v. Williams, 715 A.2d

1101, 1103 (Pa. 1998)). The law of Pennsylvania is well settled that matters

which are not of record cannot be considered on appeal. Id. See also

Commonwealth v. Bracalielly, 658 A.2d 755, 763 (Pa. 1995);

Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992);

Commonwealth v. Quinlan, 412 A.2d 494, 496 (Pa. 1980). In the

absence of an adequate certified record, there is no support for an

appellant’s arguments and, thus, there is no basis upon which relief could be

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granted. Preston, 904 A.2d at 7. The certified record consists of the

“original papers and exhibits filed in the lower court, paper copies of legal

papers filed with the prothonotary by means of electronic filing, the

transcript of proceedings, if any, and a certified copy of the docket entries

prepared by the clerk of the lower court[.]” Pa.R.A.P. 1921.

“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.’” Commonwealth v. Brown, ___ A.3d ___, 2017 PA Super 133,

2017 WL 1737932 at *18 (Pa. Super. filed May 4, 2017) (quoting

Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008)). 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. Kleinicke, 895 A.2d 562, 575 (Pa. Super. 2006) (en

banc). The Pennsylvania Rules of Appellate Procedure require an appellant

to order and pay for any transcript necessary to permit resolution of the

issues raised on appeal. Pa.R.A.P. 1911(a). When the appellant fails to

conform to the requirements of Rule 1911, any claims that cannot be

resolved in the absence of the necessary transcripts must be deemed waived

for the purpose of appellate review. Williams, 715 A.2d at 1105. See also

Pa.R.A.P. 1911(d) (stating that “[i]f the appellant fails to take the action

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required by these rules and the Pennsylvania Rules of Judicial Administration

for the preparation of the transcript, the appellate court may take such

action as it deems appropriate, which may include dismissal of the appeal.”).

It is not proper for an appellate court to order transcripts, nor is it the

responsibility of this Court to obtain the necessary transcripts. Williams,

715 A.2d at 1105.

Our review of the record reflects that mere minutes before the

scheduled de novo hearing, Appellant filed a motion to suppress. The trial

court explained its procedure in handling Appellant’s motion to suppress as

follows:

[A]lthough [Appellant’s] motion was denied, and a separate suppression hearing was not conducted, [Appellant] had the opportunity at the summary appeal hearing to challenge the lawfulness of his traffic stop. Evidence presented by the Commonwealth was sufficient to establish that the stop and the inquiry into [Appellant’s] license status [were] lawful, and [Appellant] did not present evidence sufficient to discredit the Commonwealth’s evidence. Given the last minute nature of [Appellant’s] suppression motion, and in light of the evidence presented, [Appellant’s] Motion to Suppress for Want of Probable Cause was properly denied, and the suppression-based objections lodged during the hearing were properly overruled.

Trial Court Opinion, 5/13/16, at 4 (emphases added). Thus, it appears that

the trial court addressed the content of Appellant’s motion to suppress

during the de novo hearing. However, upon review of the certified record

before us, it is obvious that the transcript of the de novo hearing was not

included in the certified record for transmittal to this Court. Our review of

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the docket and the certified record index supports that finding. Therefore,

Appellant failed to ensure that the complete record is before this Court for

review. Accordingly, because we cannot review the issue pertaining to the

denial of Appellant’s motion to suppress without reference to the transcript

of the de novo hearing, our review is hampered, and we are constrained to

deem this issue to be waived on appeal.

Appellant presents the following as his second issue: “Whether the

Court errs in directing an appellate Court for appeal?” Appellant’s Brief a 9.

However, the subsequent discussion in Appellant’s brief contains a

somewhat disjointed discussion interspersing vague claims with legal

authority. In his discussion, Appellant makes reference to “combining”

appeals, and he states that he “would have sought to combine the cases to

show that the underlying conviction was a nullity.” Appellant’s Brief at 10.

Nevertheless, Appellant fails to express with exactitude the cases that he

believes should be combined.

As we have long expressed, it is an appellant’s duty to present

arguments that are sufficiently developed for review. Commonwealth v.

Gould, 912 A.2d 869, 873 (Pa. Super. 2006). The brief must support the

claims with pertinent discussion, with references to the record, and with

citations to legal authorities. Id. Indeed, this Court will not act as counsel

and will not develop arguments on behalf of an appellant. Id.

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Here, the lack of analysis and discussion in the argument portion of

Appellant’s brief precludes us from conducting meaningful judicial review of

Appellant’s second issue. Accordingly, we are constrained to find this issue

to be waived.

In issues three, four, five, and six, Appellant presents arguments

pertaining to the de novo hearing held on February 23, 2016. Specifically, in

issue three Appellant attempts to argue that the trial court erred in failing to

require the Commonwealth to prove that PennDOT records regarding his

suspension were correct. Appellant’s Brief at 10-12. In issue four, Appellant

argues that recusal was appropriate because of “incredible disrespect”

shown to him. Appellant’s Brief at 12. In issue five, Appellant argues that

the verdict of guilt was improper because there was insufficient evidence

that he was driving under suspension; in so doing, he attempts to challenge

the validity of the suspension. Appellant’s Brief at 12-13. In issue six,

Appellant argues that the trial court improperly limited testimony.

Appellant’s Brief at 13.

As we discussed in our review of Appellant’s first issue, the

fundamental tool for appellate review is the official record of the events that

occurred in the trial court. Preston, 904 A.2d at 6. Again, 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. Kleinicke, 895 A.2d at 575. As

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previously noted, the transcript of the de novo hearing was not included in

the certified record transmitted to this Court. Consequently, Appellant failed

to ensure that the complete record is before us for review. Accordingly, we

cannot review issues three, four, five, and six without reference to the

transcript of the de novo hearing. Hence, our review is hampered, and we

must deem these issues to be waived on appeal.3

3 We note that in his discussion pertaining to issue three, Appellant references a document in his reproduced record at page 14a. As we explained in Preston:

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. In this regard, our law is the same in both the civil and criminal context because, under the Pennsylvania Rules of Appellate Procedure, any document which is not part of the officially certified record is deemed non-existent - a deficiency which cannot be remedied merely by including copies of the missing documents in a brief or in the reproduced record. The emphasis on the certified record is necessary because, unless the trial court certifies a document as part of the official record, the appellate judiciary has no way of knowing whether that piece of evidence was duly presented to the trial court or whether it was produced for the first time on appeal and improperly inserted into the reproduced record. Simply put, if a document is not in the certified record, the Superior Court may not consider it.

Preston, 904 A.2d at 6-7 (emphases in original). We observe that neither of the documents appearing in Appellant’s reproduced record appended to (Footnote Continued Next Page)

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In issues seven and eight, Appellant attempts to present arguments

pertaining to racial bias and “disabilities.” Appellant’s Brief at 13-14.

However, the discussions pertaining to these issues are not properly

developed for appellate review. It is well settled that the argument portion

of an appellate brief must be developed with pertinent discussion of the

issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a).

See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996)

(stating that “[t]he argument portion of an appellate brief must be

developed with a pertinent discussion of the point which includes citations to

the relevant authority”).

In Commonwealth v. B.D.G., 959 A.2d 362, 371-372 (Pa. Super.

2008), a panel of this Court offered the following relevant observation

regarding the proper formation of the argument portion of an appellate

brief:

In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. Commonwealth v. Williams, 566 Pa. 553, 577, 782 A.2d 517, 532 (2001) (Castille, J., concurring). To do so places the Court in the conflicting roles of advocate and neutral arbiter. Id. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is

_______________________ (Footnote Continued)

his appellate brief at pages 14a and 15a is contained in the certified record that was transmitted to this Court. Accordingly, we may not review either of the items.

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waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super. 1996).

Id.

Here, Appellant’s argument concerning issue seven consists of several

sentences baldly alleging racial bias among members of the Centre County

Court of Common Pleas. Appellant’s Brief at 13. The argument pertaining to

issue eight consists of the following single sentence: “This is an American

with Disabilities Act consideration since [Appellant] can not often stay on top

of the multitude of cases.” Appellant’s Brief at 13-14. Completely missing

from either of Appellant’s arguments is any discussion of legal authority or

its relation to the instant case. Thus, neither of these issues is properly

developed for our review as they fail to apply the law to the facts of the

case. Accordingly, we are constrained to conclude that these issues are

waived because the arguments are not adequately developed.

Finally, on April 10, 2017, after this Court heard oral argument,

Appellant filed an application for post-submission relief pursuant to Pa.R.A.P.

2501. In his application, Appellant indicated that he is seeking to address

questions from the panel and acceptance of his previously filed reply brief

with supplemental reproduced record. Within his filing, Appellant seeks to

bolster his original arguments pertaining to the trial court’s handling of his

motion to suppress. Generally, we will accept an application for post-

submission communication when there has been a change in authority.

Pa.R.A.P. 2501. No such change occurred herein. Hence, we deny

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Appellant’s application. Furthermore, with regard to reply briefs, we observe

that such documents are due to be filed fourteen days after service of the

preceding brief and three days before oral argument. Pa.R.A.P. 2185. Here,

the Commonwealth filed its brief on November 21, 2016. Thus, Appellant’s

reply brief was due on December 5, 2016. However, Appellant did not file

his reply brief until April 3, 2017, which was nearly four months after the

due date, and one day before oral argument. Moreover, Appellant has

appended to his reply brief various documents that are not part of the

certified record before us on appeal. As previously stated, in Pennsylvania,

an appellate court is limited to considering only the materials in the certified

record when resolving an issue, and a deficient certified record cannot be

remedied merely by including copies of the missing documents in a brief or

in the reproduced record. Preston, 904 A.2d 6. Hence, we deny

Appellant’s application.

Application for post submission relief denied. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/17/2017

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