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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERNEST R. WHOLAVER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAUPHIN COUNTY PRISON, WARDEN
DEROSE, DETECTIVE WALBURN, JANE
AND JOHN DOE
Appellant No. 888 MDA 2014
Appeal from the Order Entered April 16, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-MD-0001682-2013
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MAY 01, 2015
Ernest R. Wholaver appeals from the order entered on April 16, 2014,
in the Court of Common Pleas of Dauphin County, denying his motion for
leave to file an appeal nunc pro tunc. After a thorough review of the
submissions by the parties, relevant law, and the certified record, we affirm.
By way of background, Wholaver filed a private criminal complaint
alleging that on or about September 2, 2013, while incarcerated in the
Dauphin County Prison, he was severely assaulted by several other inmates
at the direction of prison officials.1 The allegations in the complaint were
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1
Wholaver believes he was targeted by the other prisoners and prison
officials because he is facing three death sentences, having been convicted
of crimes against his wife and two daughters.
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subsequently investigated by Dauphin County Deputy District Attorney
Kristyne Sharpe. She concluded the allegations were false and/or
unprovable and declined prosecution. Wholaver sought a review of that
decision by the Court of Common Pleas, pursuant to Pa.R.Crim.P. 506(B)(2).
On January 23, 2014, the Honorable John F. Cherry determined the refusal
to prosecute was justified and denied Wholaver relief. Wholaver did not
appeal the January 23, 2014 order.
However, on April 2, 2014, Wholaver filed a petition for allowance of
appeal the January 23, 2014 order nunc pro tunc. Therein, Wholaver
claimed, in part, that he attempted to file the appeal previously, but filed it
with the wrong court.2 On April 16, 2014, the trial court denied Wholaver’s
petition, stating it would “not extend time for a claim which lacks merit.”
See Order, 4/16/2014. Wholaver then filed a timely appeal from the April
16, 2014 order denying him permission to appeal the January 23, 2014
order nunc pro tunc.
In his appellant’s brief, Wholaver has provided no argument as to why
the trial court erred in denying his petition for nunc pro tunc relief. Rather,
Wholaver has provided arguments substantively addressing issues relevant
to the January 23, 2014 order. Such issues are not before this Court.
Wholaver also argues Judge Cherry should have recused himself due to his
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2
Wholaver provided no support for this claim.
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bias against him. Wholaver claims Judge Cherry has ruled against him in
four other cases, thereby demonstrating his inability to rule fairly. However,
Wholaver never raised this issue before the trial court and therefore the
claim has been waived. See Pa.R.A.P. 302(a); Commonwealth v. Tejada,
107 A.3d 788, 797 (Pa. Super. 2015) (citation omitted) (issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal).
Because Wholaver has presented no argument regarding the order
appealed from, we have nothing to review. Accordingly, we affirm the order
of April 16, 2014, denying Wholaver permission to appeal nunc pro tunc.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2015
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3
The trial court addressed Wholaver’s claims in its original memorandum
opinion attached to the January 23, 2014 order. We have reviewed the
entire record of this matter and are in agreement with the trial court that
Wholaver would not be entitled to relief even if we addressed his claims
regarding the January 23, 2014 order.
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