Com. v. King, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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
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Circulated 06/17/2019 04:22 PM