Com. v. Reeve, O.

• Court: Superior Court of Pennsylvania
• Decided: August 31, 2017
• Docket: Com. v. Reeve, O. No. 2712 EDA 2016
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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). J-S45027-17

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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