Com. v. King, M.

• Court: Superior Court of Pennsylvania
• Decided: July 18, 2019
• Docket: 1706 EDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MICHAEL KING

Appellant No. 1706 EDA 2018 Appeal from the Judgment of Sentence February 20, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002886-2009

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED JULY 18, 2019

Appellant, Michael King, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas, following

revocation of his probation. We affirm.

In its opinion, the trial court correctly set forth the facts and procedural

history of this case. Therefore, we have no reason to restate them.

Appellant raises the following issue for our review:

DID THE HONORABLE COURT ERR IN FINDING [APPELLANT] IN VIOLATION OF HIS PROBATION AND REVOKING PROBATION?

(Appellant's Brief at 3).

Appellant argues he cannot point to a record that supports a violation of

probation because the notes of testimony from the violation of probation ("VOP") hearing are unavailable. Appellant complains the trial court opinion

Retired Senior Judge assigned to the Superior Court. J -S26028-19

did not summarize, or attempt to repeat, the testimony at the VOP hearing,

and current counsel was not Appellant's counsel at the VOP hearing. Appellant

concludes that, without a record of the hearing, we should reverse the finding

of violation. We disagree.

We observe the appellant bears the burden to ensure a complete record

for appellate review. Commonwealth v. Dunkle, 932 A.2d 992, 996 n.2 (Pa.Super. 2007). If the record of a proceeding is missing or incomplete, an

appellant may supplement the certified record by submitting a statement of

evidence or proceedings from the "best available means"; the best available

means include the appellant's own recollections. See Pa.R.A.P. 1923.

Failure to ensure that the record provides sufficient information to conduct a meaningful review constitutes waiver of the issue sought to be reviewed. Where portions of a proceeding are unrecorded, appellant's burden to supply a record may be satisfied through the statement in absence of transcript procedures. See Pa.R.A.P. 1923.

Commonwealth v. Steward, 775 A.2d 819, 835 (Pa.Super. 2001), appeal

denied, 568 Pa. 617, 792 A.2d 1253 (2001) (internal quotation marks and

some citations omitted). An appellant's failure to avail himself of any of the

alternative means to ensure this Court receives a complete record of the proceedings will result in waiver of the appellant's claims. Dunkle, supra.

Instantly, the argument section of Appellant's brief consists of two short

paragraphs and states simply that there is no evidence of record of a probation

violation because the notes of testimony from the most recent VOP hearing

are unavailable. Appellant cites no supporting law whatsoever in his argument

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section. Importantly, Appellant's failure to employ an alternative procedure

to supply a statement of the proceedings in place of the missing transcript

contributes to the waiver of his complaint on appeal. See Pa.R.A.P. 1923;

Dunkle, supra; Steward, supra. Moreover, after a thorough review of the record, the briefs of the parties,

the applicable law, and the reasoned opinion of the Honorable Frank Palumbo,

we conclude Appellant's issue would merit no relief in any event. The trial

court opinion discusses and properly disposes of the question presented. (See

Trial Court Opinion, filed October 29, 2018, at 2-4) (finding: Appellant was on

probation when he committed, was arrested, and pled guilty to three counts

of robbery; revocation court properly found Appellant's new convictions were

in direct violation of his probation). The record supports the court's analysis,

and we would have no reason to disturb it on the grounds asserted. Revocation of Appellant's probation was based on his robbery convictions,

which we can confirm in the record without the VOP hearing transcript. (See

Appellant's Motion to Lift Detainer, filed 2/12/14) (admitting in Appellant's

own words his guilty plea to robbery on 5/30/13). Accordingly, we affirm.

See generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3

(2007) (stating where issues are waived on appeal, we should affirm rather

than quash appeal).

Judgment of sentence affirmed.

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Judgment Entered.

seph D. Seletyn, Prothonotary

Date: 7/18/19

-4 Circulated 06/17/2019 04:22 PM