J-S46013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OLIN JAMAR HORSEY
Appellant No. 1383 EDA 2014
Appeal from the Judgment of Sentence March 24, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006368-2012
BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 04, 2015
Appellant, Olin Jamar Horsey, appeals from the March 24, 2014,
judgment of sentence of 36 to 72 months’ incarceration for possession of
cocaine with the intent to deliver, 15 days to 30 days’ incarceration for
possession of marijuana, and one year of probation for possession of drug
paraphernalia, imposed by the trial court after it found Appellant guilty of
possession of cocaine with the intent to deliver, possession of cocaine,
possession of marijuana, and possession of drug paraphernalia.1 After
careful review, we affirm.
____________________________________________
1
35 P.S. §§ 780-113(a)(30), (16), (31), and (32), respectively. The
possession of cocaine conviction merged with the possession of cocaine with
intent to deliver conviction for sentencing purposes. Further, we note that
Appellant was originally sentenced on February 28, 2014 to 36 to 60
months’ incarceration for possession of cocaine with the intent to deliver, 15
days to 30 days’ incarceration for possession of marijuana, and one year of
(Footnote Continued Next Page)
J-S46013-15
The trial court summarized the relevant facts and procedural history of
this case as follows.
On August 28, 2012, Officer Matthew Goldschmidt
was on duty and working undercover along with
Officer Hennas, when they observed [Appellant]
walking along the street with a clear bag of
marijuana in his right hand. [Appellant] was placed
under arrest and ultimately charged with several
crimes under the Controlled Substance, Drug, Device
and Cosmetic Act. On November 26, 2012,
[Appellant], through counsel, filed a motion to
suppress. On January 4, 2013, a hearing was held
on [Appellant’s] motion and the court heard
testimony from Officer Matthew Goldschmidt. By
order dated March 6, 2013, the court denied
[Appellant’s] motion.
Following a bench trial, [Appellant] was found
guilty of possession of cocaine with the intent to
deliver, possession of cocaine, possession of
marijuana, and possession of drug paraphernalia.
[Appellant] was sentenced on February 28, 2014 …
[and on] March 24, 2014, [Appellant] was
resentenced [].
[Appellant filed a post-sentence motion on
March 26, 2014, which the trial court denied on April
4, 2014.]
_______________________
(Footnote Continued)
probation for possession of drug paraphernalia. However, on March 24,
2014, the trial court determined that the February 28, 2014 sentence was
illegal, and resentenced Appellant as indicated. The trial court does not
explain its conclusion regarding the illegality of Appellant’s February 28,
2014 sentence, however, in the February 28, 2014 sentence the minimum
was more than one-half of the maximum. See Trial Court Opinion,
11/14/14, at 2; 42 Pa.C.S.A. § 9756(b)(1).
-2-
J-S46013-15
On May 1, 2014, [Appellant] filed his notice of
appeal[.] Following a directive from [the trial] court,
[Appellant] filed his Concise Statement of Matters
Complained of on Appeal on May 14, 2014.
Trial Court Opinion, 11/14/14, at 1-2.
On appeal, Appellant presents five issues for our review.
1. Whether the Suppression Court erred in denying
[the] motion to suppress physical evidence,
recovered from a search incident to Appellant’s
arrest, where Appellant’s arrest was unlawful
because he was initially detained without
reasonable suspicion, in violation of Appellant’s
right to a fair search and seizure under the Fourth
Amendment of the United States Constitution,
and Article 1, Section 8 of the Pennsylvania State
Constitution?
2. Whether the Suppression Court erred in denying
[the] motion to suppress physical evidence,
recovered from [the] warrant-less [sic] search of
Appellant’s vehicle, because [the] search was
conducted without probable cause, and there was
no reasonable suspicion to support the canine
search that led to [the] car’s impoundment and
subsequent search interior search [sic], in
violation of Appellant’s right to a fair search and
seizure under the Fourth Amendment of the
United States Constitution, and Article 1, Section
8 of the Pennsylvania State Constitution?
3. Whether there was sufficient evidence to support
Appellant’s conviction for Possession with Intent
to Deliver a Controlled Substance?
4. Whether the lower court’s verdict, finding
Appellant guilty, was against the weight of the
evidence?
5. Whether the mandatory minimum sentence of
three (3) to six (6) years imposed by the trial
-3-
J-S46013-15
court should be vacated, where the Superior
Court has held that [18] Pa.C.S.A. Section 7508 is
unconstitutional on its face, pursuant to the
United States Supreme Court holding Alleyne v.
United States, that mandatory minimum
sentencing statutes are unconstitutional because
they permit the trial court to increase a
defendant’s minimum based upon a
preponderance of the evidence, rather than a jury
based on reasonable doubt?
Appellant’s Brief at 5-6.
In his first two issues, Appellant challenges the trial court’s denial of
his suppression motion. We are guided by the following principles in
conducting our review of these issues.
Our standard of review in addressing a
challenge to the denial of a suppression motion is
limited to determining whether the suppression
court’s factual findings are supported by the record
and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth
prevailed before the suppression court, we may
consider only the evidence of the Commonwealth
and so much of the evidence for the defense as
remains uncontradicted when read in the context of
the record as a whole. Where the suppression
court’s factual findings are supported by the record,
we are bound by these findings and may reverse
only if the court’s legal conclusions are erroneous.
Where … the appeal of the determination of the
suppression court turns on allegations of legal error,
the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to
determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
-4-
J-S46013-15
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations and
quotation marks omitted), cert. denied, Jones v. Pennsylvania, 131 S.Ct.
110 (2010).
In his first issue, Appellant contends that his arrest was unlawful
where “Officer Goldschmidt had a hunch that Appellant was carrying
marijuana, based upon observing him handling a plastic baggie, containing
an unknown green material, [such that] there were, clearly, insufficient facts
to support any intelligent conclusion that in fact Appellant was carrying
marijuana based merely on observing the plastic baggie from the passenger
seat of his unmarked police vehicle, where he did not observe Appellant
engage in street transactional drug activity.” Appellant’s Brief at 15-16.
Appellant claims that the “facts culminating in his detention did not give rise
to reasonable suspicion to support an investigatory stop, which rendered
Appellant’s arrest, and the search incident to Appellant’s arrest, inadmissible
fruit of the poisonous tree.” Id. at 16.
It is well settled that there are three categories of interactions
between police and citizens.
The Fourth Amendment of the U.S.
Constitution and Article 1, Section 8 of our state
Constitution protect citizens from unreasonable
searches and seizures. To safeguard this right,
courts require police to articulate the basis for their
interaction with citizens in increasingly intrusive
situations:
The first of these is a “mere encounter”
(or request for information) which need not be
-5-
J-S46013-15
supported by any level of suspicion, but carries
no official compulsion to stop or to respond.
The second, an “investigative detention” must
be supported by a reasonable suspicion; it
subjects a suspect to a stop and a period of
detention, but does not involve such coercive
conditions as to constitute the functional
equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by
probable cause.
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.
Super. 2012) (citation omitted).
Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012), appeal
denied, 65 A.3d 413 (Pa. 2012).
Here, the trial court concluded that Officer Goldschmidt had probable
cause to arrest Appellant. Our Supreme Court has explained the following.
Probable cause is made out when “the facts and
circumstances which are within the knowledge of the
officer at the time of the arrest, and of which he has
reasonably trustworthy information, are sufficient to
warrant a man of reasonable caution in the belief
that the suspect has committed or is committing a
crime.” Commonwealth v. Rodriguez, 526 Pa.
268, 585 A.2d 988, 990 (1991). The question we
ask is not whether the officer’s belief was “correct or
more likely true than false.” Texas v. Brown, 460
U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502
(1983). Rather, we require only a “probability, and
not a prima facie showing, of criminal activity.”
Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983) (citation omitted)
(emphasis supplied). In determining whether
probable cause exists, we apply a totality of the
circumstances test. Commonwealth v. Clark, 558
Pa. 157, 735 A.2d 1248, 1252 (1999) (relying on
Gates, supra).
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009).
-6-
J-S46013-15
In this instance, the trial court reasoned as follows.
Based upon the totality of the circumstances in the
instant case, th[e trial c]ourt found that Officer
Goldschmidt had probable cause to arrest
[Appellant] after he observed a bag of marijuana in
his hand. See Commonwealth v. Burnside, 625
A.2d 678 (Pa. Super. 1993) (where experienced
officer observed defendant standing in a brightly lit
doorway holding a handful of “small, blue plastic
packets” that the officer knew commonly contained
cocaine, officer had probable cause to arrest);
Commonwealth v. Brinkley, 620 A.2d 1226 (Pa.
Super. 1993) (officer had probable cause to arrest
when he observed defendant holding a bag
containing white powder). Here, Officer Goldschmidt
credibly testified that, based upon his training and
experience, it was immediately apparent that
[Appellant] possessed marijuana, which is criminal
behavior in the Commonwealth of Pennsylvania.
Accordingly, this [trial] court found that Officer
Goldschmidt had the requisite probable cause
necessary to arrest [Appellant] for this crime.
Trial Court Opinion, 11/14/14, at 6, ¶7.
The trial court’s reasoning is supported by the record. Officer Matthew
Goldschmidt testified that he was working undercover with the anti-crime
unit, investigating drug trafficking, during the afternoon of August 28, 2012.
N.T., 1/4/13, at 19. Officer Goldschmidt had “been receiving information
about [Appellant] regarding drug sales from the residence of 217 Ellsworth
Street.” Id. at 20. Officer Goldschmidt explained that as he was “driving
down closer to [Appellant], [I] noticed a clear plastic bag in his hand
containing marijuana. … It was in his right hand.” Id. at 22. Officer
Goldschmidt testified as follows.
-7-
J-S46013-15
It appeared to be green vegetable matter. From my
training and experiences, it’s normally packaged in
clear sandwich bags or clear or similar zip top
baggies.
Id. at 23. Based on this observation, Goldschmidt effectuated the stop of
Appellant that led to Appellant’s arrest. Id. Given these facts, the trial
court properly determined that Goldschmidt had probable cause to arrest
Appellant. Appellant’s claim to the contrary lacks merit.
In Appellant’s second suppression issue, he asserts that police lacked
probable cause to search his vehicle. Appellant argues that the search of his
Audi was illegal because “Officer Goldschmidt did not observe Appellant
inside the Audi, did not observe contraband inside the Audi through the
exterior, and had no prior information from an informant or anonymous
tipster that narcotics were contained within the Audi or that Appellant was
the driver, prior to unlocking the car door to establish that the key recovered
from Appellant was the door and ignition key for the Audi.” Appellant’s Brief
at 19-20.
Our review of the record reveals that Appellant’s suppression
argument with regard to the Audi is baseless. Officer Goldschmidt testified
that when he stopped Appellant, he saw Appellant discard “a black key” with
an Audi symbol. N.T., 1/4/13, at 25. Officer Goldschmidt saw an Audi “25
to 30 yards” away. Id. at 26. He then called for a canine officer, who
walked around the Audi and alerted Officer Goldschmidt to the presence of
narcotics. Id. at 29-30. Immediately thereafter, Officer Goldschmidt “called
for a tow truck [and] applied for a warrant.” Id. at 30-31 (emphasis
-8-
J-S46013-15
added). Even more significantly, Goldschmidt determined that the Audi
“was not owned by [Appellant].” Id. at 31 (emphasis added).2
The trial court summarily explained as follows.
[The trial] court finds that the police did not conduct
a warrantless search. [FN 13: The search was
conducted after an exterior search of the vehicle and
a search warrant was obtained.] [Also, the trial]
court finds that [Appellant] failed to show that he
had a privacy interest in the Audi. See
Commonwealth v. Perea, 791 A.2d 427 (Pa.
Super. 2012) (though Appellant had keys to a car,
he did not have an expectation of privacy in that
vehicle). In the instant case, while [Appellant] was
observed discarding a key to the Audi, the lawful
owner was Scott Emerson Davis. See
Commonwealth’s Exhibit CS-3; see also N.T.,
1/4/13, p. 31. [Appellant] did not provide any
evidence that he was using the vehicle with the
permission of the registered owner. [Appellant]
attempted to disassociate himself from the vehicle
after he was approached by Officer Goldschmidt. Id.
at 23. Therefore, the [trial] court found that he had
no expectation of privacy in its contents. He cannot
now claim a privacy interest in the car.
Trial Court Opinion, 11/14/14, at 6-7 (footnote 14 omitted).
Because the facts of record support the trial court’s legal conclusions,
Appellant’s suppression issue relative to the search of the Audi is without
merit.
____________________________________________
2
Appellant concedes that he “was not the owner of the Audi.” Appellant’s
Brief at 23.
-9-
J-S46013-15
With regard to Appellant’s remaining three issues, our analysis is
hampered because the certified record does not contain notes of testimony
from either Appellant’s trial or sentencing. Moreover, our review of
Appellant’s notice of appeal filed May 1, 2014 does not indicate that
Appellant’s counsel ordered the transcripts.
“Pennsylvania law makes clear ‘an appellate court is limited to
considering only the materials in the certified record when resolving an
issue.’” Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014),
quoting Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en
banc), appeal denied, 916 A.2d 632 (Pa. 2007). Where the appellant has not
made the transcript of the proceedings at issue a part of the certified record,
we have held as follows.
With regard to missing transcripts, the 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
transcript or transcripts must be deemed waived for
the purpose of appellate review.
Id.
We further commented as follows.
Of course, if a party is indigent, and is entitled to
taxpayer-provided transcripts or portions of the
record, he will not be assessed costs. But, that does
not absolve the appellant and his lawyer of his
obligation to identify and order that which he deems
- 10 -
J-S46013-15
necessary to prosecute his appeal. The plain terms
of the Rules contemplate that the parties, who are in
the best position to know what they actually need for
appeal, are responsible to take affirmative actions to
secure transcripts and other parts of the record....
[An appellant] cannot fault the trial court for his own
failures. Instead, it is only when an appellant can
show that a request was made and erroneously
denied, which is not the case herein, that such a
claim would have merit....
Id. at 456-457, citing Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa.
2011). “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.”
Preston, supra at 7 (citation omitted).
Given the foregoing, we are constrained to conclude that Appellant’s
remaining issues are waived. Waiver notwithstanding, as best we are able
to discern, Appellant’s sufficiency challenge to his conviction for possession
of cocaine with the intent to deliver lacks merit. When reviewing a
sufficiency claim we are mindful of the following.
In analyzing [sufficiency] claims, “we must
determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the
Commonwealth as verdict winner, support the
conviction beyond a reasonable doubt.”
Commonwealth v. Brown, 52 A.3d 320, 323 (Pa.
Super. 2012). Critically important, we must draw all
reasonable inferences from the evidence in favor of
the Commonwealth as the verdict-winner.
Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.
Super. 2013). “Where there is sufficient evidence to
enable the trier of fact to find every element of the
crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must
fail.” Brown, supra at 323. Of course, “the
- 11 -
J-S46013-15
evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented.”
Id.
The Commonwealth can meet its burden “by
wholly circumstantial evidence and any doubt about
the defendant's guilt is to be resolved by the fact
finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability
of fact can be drawn from the combined
circumstances.” Id. It is improper for this Court “to
re-weigh the evidence and substitute our judgment
for that of the fact-finder.” Id. Additionally, “the
entire record must be evaluated and all evidence
actually received must be considered.” Id.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013), appeal
denied, 95 A.3d 277 (Pa. 2014).
Appellant specifically argues that there was insufficient evidence that
he “was in constructive possession of the cocaine recovered from the Audi.”
Appellant’s Brief at 22. He asserts that “Officer Goldschmidt never observed
Appellant inside of the Audi, prior to arresting Appellant, Officer Goldschmidt
had no independent source of evidence linking Appellant to the Audi.
Further, it was established that Appellant was not the owner of the Audi.
Neither was there any evidence establishing that Appellant was involved in a
cocaine distribution enterprise, as police recovered no cocaine, incident to
searches of Appellant’s person or 217 Ellsworth Avenue, where Appellant
allegedly resided.” Id. at 22-23.
Although the facts relied upon by Appellant – from our reading of the
notes of testimony from the suppression hearing – are not entirely
- 12 -
J-S46013-15
inaccurate, the trial court rebutted Appellant’s argument with the following
explanation.
In order to establish possession with the intent
to deliver, the Commonwealth must prove both
possession of a controlled substance and the intent
to deliver that substance. 35 P.S. §780-113(a)(30).
Possession of a controlled substance can be
established either by a showing that the defendant
had the substance on his person, actual possession,
or that the defendant exercised dominion over the
substance, constructive possession.
Commonwealth v. Macolino, 503 Pa. 201, 204-06,
469 A.2d 132, 134 (1983). Where drugs are not
found on a defendant’s person, constructive
possession can be established by showing that the
defendant had the power to control and intended to
exercise such control over the drugs.
Commonwealth v. Davis, 480 A.2d 1035, 1045
(Pa. Super. 1984). The intent to control may be
inferentially proven by the totality of the
circumstances. Macolino, 503 Pa. at 206, 469 A.2d
at 134.
When viewing the evidence in a light most
favorable to the Commonwealth, based upon the
totality of the circumstances, this [trial] court
submits that there was sufficient evidence to
establish that [Appellant] exercised a “conscious
dominion” over the cocaine recovered from the Audi
in this case. [Appellant] was observed discarding
the key for the car. Accordingly, prior to his
encounter with the police in which he discarded this
item, he had the ability and the power to control
these drugs. Based upon the totality of the
circumstances, he also had the intent to exercise
control over these drugs.
Similarly, the [trial] court submits that there
was sufficient evidence to establish that [Appellant]
possessed the cocaine recovered from the Audi with
the intent to deliver it. 35 P.S. §780-113(a)(30). In
- 13 -
J-S46013-15
evaluating intent, courts examine all of the facts and
circumstances surrounding a person’s possession of
drugs and drug paraphernalia. Davis, 480 A.2d at
1045.
In the case sub judice, [Appellant] possessed
18.8 grams of cocaine. See Commonwealth Exhibit
CS-2. Numerous items of drug paraphernalia were
found throughout his residence at 217 Ellsworth
Street, including unused packaging material and a
bottle of inositol. In addition, $2,000 cash and a
firearm were found in the residence. Found among
these items was mail addressed to [Appellant].
Officers did not locate any paraphernalia indicative of
drug use in the residence.
Trial Court Opinion, 11/14/14, at 8-9 (footnote 15 omitted).
Noting that the record does not contain notes of testimony from the
Appellant’s trial,3 our review of the record from the suppression hearing
supports the trial court’s factual findings and legal conclusions. Appellant
resided at 217 Ellsworth Street with his girlfriend, Ms. Dorothea Dorsey.
N.T., 1/4/13, at 34. Ms. Dorsey gave police written consent to search the
residence. Id. at 33-34; Commonwealth Exhibit CS-1. During their search
of the residence, police found a loaded .45 caliber handgun, unused
packaging material, including zip top baggies, inositol, which is an agent
used to cut cocaine and “break it down,” and $2,000 in cash. Id. at 35-36;
Commonwealth Exhibit CS-2. The police located indicia of residency for both
Appellant and Ms. Dorsey; there was no indicia that anyone else resided in
____________________________________________
3
The docket entries in the certified record indicate that Appellant’s trial
occurred on October 21, 2013 and November 13, 2013.
- 14 -
J-S46013-15
the home. Id. at 40. That same day, when police subsequently obtained a
warrant and searched the Audi, they discovered “approximately 18.8 grams
of cocaine in a clear, knotted sandwich bag.” Id. at 37, 41. In addition, the
police search of Appellant’s person yielded $220 in cash. Id.
In light of the foregoing, Appellant has waived his sufficiency
argument. However, even in the absence of waiver, it appears that there
would have been sufficient evidence for the trial court to conclude that
Appellant constructively possessed the cocaine found in the Audi.
We likewise find waiver relative to Appellant’s fourth issue, in which
Appellant claims that his conviction of possession of cocaine with the intent
to deliver was against the weight of the evidence. After reviewing the
record, we find “waiver within waiver,” where the trial court determined that
Appellant waived this issue by failing to comply with Pennsylvania Rule of
Criminal Procedure 607.4
Pennsylvania Rule of Criminal Procedure 607 provides that a challenge
to the weight of the evidence “shall be raised with the trial judge in a motion
for a new trial” either “orally, on the record before sentencing; by written
motion at any time before sentencing; or in a post-sentence motion.”
Pa.R.Crim.P. 607(A)(1)-(3). Again, the record before us contains only the
____________________________________________
4
Appellant does not address the trial court’s finding of Rule 607 waiver
within his weight argument. See Appellant’s Brief at 23-24.
- 15 -
J-S46013-15
notes of testimony from the January 4, 2013 suppression hearing, and
Appellant’s notice of appeal filed on May 1, 2014 does not indicate that he
ordered the notes of testimony from either his trial or sentencing. We thus
cannot determine whether Appellant orally claimed that his conviction was
against the weight of the evidence. Further, our review of the certified
record confirms that Appellant did not raise his weight claim in a written
motion prior to sentencing, and the identical post-sentence motions, which
Appellant filed on March 5, 2014 and March 26, 2014, did not raise a weight
claim.5 Accordingly, we agree with the trial court that “review of the record
has failed to uncover a challenge to the weight of the evidence.” Trial Court
Opinion, 11/14/14, at 11.
Finally, in his fifth issue, Appellant argues that his sentence should be
vacated because Section 7508 of the Crimes Code, which provided for
penalties based on the aggregate weight of prohibited substances possessed
by a defendant, has been held to be unconstitutional. Although Appellant
concedes that he did not raise this issue at sentencing or in his Pa.R.A.P.
1925(b) statement, he asserts that this challenge is not waived, but is
reviewable because it invokes the legality of his sentence. We agree. See
Commonwealth v. Mosley, 114 A.3d 1072, 1088 (Pa. Super. 2014).
____________________________________________
5
As noted by the trial court, Appellant “solely focused on the [trial] court’s
ruling on his motion to suppress.” Trial Court Opinion, 11/14/14, at 11,
n.16.
- 16 -
J-S46013-15
In his argument, Appellant cites Alleyne v. United States, 133 S.Ct.
2151 (2013). We recognize that it was this Court in Mosley, supra at
1087-91, which Appellant does not cite, where this Court specifically held 18
Pa.C.S.A. § 7508 to be unconstitutional. Appellant contends “at [his]
sentencing hearing, the Commonwealth presented evidence that the weight
of the cocaine recovered from Appellant totaled 18.8 grams.” Appellant’s
Brief at 24. Although Appellant references the sentencing hearing, he fails
to cite to it – or any notes of testimony – and as discussed supra, the
sentencing transcript is not in the record. See Preston, supra at 7 (stating
“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.”).
Conversely, the Commonwealth argues that “the trial court did not
offend Alleyne because [Appellant] was not sentenced to a mandatory
minimum.” Commonwealth Brief at 18. The Commonwealth states that
Appellant’s “standard range was 30 to 60 months and the trial court
sentenced him in the low end of the standard range at 36 to 72 months
incarceration.” Id. at 19. The Commonwealth makes a single citation to
notes of testimony from March 24, 2014, which are not contained in the
certified record. The Commonwealth also contends, without citation, that
“the trial court did not state that this was a mandatory minimum sentence
and [Appellant’s] criminal docket sheet does not reflect that it was a
mandatory minimum sentence.” Id.
- 17 -
J-S46013-15
Given the foregoing unsubstantiated assertions, and incomplete record
before us, we are impeded from conducting meaningful review of Appellant’s
fifth issue concerning his sentence. Again we reference Preston.
This Court cannot meaningfully review claims raised on
appeal unless we are provided with a full and complete
certified record. This requirement is not a mere
‘technicality’ nor is this a question of whether we are
empowered to complain sua sponte of lacunae in the
record. In the absence of an adequate certified record,
there is no support for an appellant’s arguments and, thus,
there is no basis on which relief could be granted.
Preston, supra at 7.
In sum, we find Appellant’s two suppression issues to be meritless,
and we are constrained to find waiver regarding Appellant’s remaining
issues. We therefore affirm the March 24, 2014 judgment of sentence.
Judgment of sentence affirmed.
Judge Musmanno joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
- 18 -
Com. v. Horsey, O.
Combined Opinion