J-A09016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARRY E. HAMILTON,
Appellant No. 497 MDA 2016
Appeal from the Judgment of Sentence February 23, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-SA-0000005-2016
BEFORE: GANTMAN, P.J., SHOGAN and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 17, 2017
Appellant, Harry E. Hamilton, appeals pro se from the judgment of
sentence entered following his conviction of the summary offense of driving
while operating privilege is suspended or revoked.1 In addition, Appellant
has filed an application for post submission relief. We deny Appellant’s
application and affirm the judgment of sentence.
We summarize the procedural history of this case as follows. At
approximately 11:30 p.m. on October 31, 2015, Officer Mark Swindell issued
a traffic citation to Appellant, who was driving a gray Hyundai Tucson. The
citation charged Appellant with driving while his operating privilege was
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1
75 Pa.C.S. § 1543(a).
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suspended or revoked. The citation indicated that Appellant’s license had
been suspended effective August 7, 2015.
On December 11, 2015, Appellant appeared before a district
magistrate and was convicted. Appellant then timely appealed to the court
of common pleas, and a hearing was scheduled for February 23, 2016, at
1:00 p.m. On February 19, 2016, Appellant filed a “Motion for Telephone
Testimony and Continuance” seeking permission to have two attorneys who
had been served subpoenas by Appellant to provide their testimony over the
telephone. Also on that date, Appellant filed a “Motion for Nunc Pro Tunc
Appeal Relief under Coram Nobis and Stay or Continuance” seeking
permission to appeal a 2013 conviction for driving under suspension.
On February 22, 2016, the assistant chief counsel for the Pennsylvania
Department of Transportation (“PennDOT”) filed a “Motion to Quash
Subpoena Pursuant to Pennsylvania Rule of Civil Procedure 234.4” alleging
Appellant provided insufficient notice and service of the summary appeal
hearing. In an order dated February 22, 2016, and filed on February 23,
2016, the trial court granted PennDot’s motion on the basis of insufficient
notice and service. The trial court’s order further indicated that the court
had received from PennDOT various court orders that were responsive to the
subpoena at issue and noted that those documents would be made available
to all parties and counsel at the time of the scheduled hearing.
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On February 23, 2016, Appellant filed a motion to suppress all
evidence for want of probable cause to effectuate the detention of Appellant
on the night in question.2 Also on that date, the trial court convicted
Appellant of driving while operating privilege is suspended or revoked
pursuant to 75 Pa.C.S. § 1543(a) and sentenced him to pay a fine of
$200.00. In three additional orders dated February 23, 2016, the trial court
(1) denied Appellant’s motion to suppress, (2) denied Appellant’s motion for
nunc-pro-tunc-appeal relief under coram nobis and stay or continuance, and
(3) granted the oral motion of attorney Ronald McGlaughlin to quash a
subpoena. This timely pro se appeal followed. Both Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the trial court erred as a matter of law when failing
to permit examination or a determination of probable cause for
the stop and admitted evidence obtained without probable
cause?
2. Whether the Court errs in directing an appellate Court for
appeal?
3. Whether there is in fact a two part analysis under section
1543 and does it include proving the correctness of the records
submitted from the Department of Transportation commencing
with the initial suspension and essentially negating requested
nunc pro tunc relief?
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2
We note that Appellant’s motion to suppress was time-stamped at
12:57 p.m., which was three minutes before the 1:00 p.m. scheduled de
novo hearing.
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4. Whether the trial court acted with sufficient bias to require
recusal?
5. Whether there was sufficient evidence to convict?
6. Whether the court improperly denied defense witnesses
limiting examination and cross examination of witnesses?
7. Whether the Court errs in relying upon orders or directions of
recused judges?
8. Whether the Court errs in not extending time to file a
statement of matters complained of on appeal?
Appellant’s Brief at 4.
Appellant first argues that the trial court erred in failing to grant his
motion to suppress. Appellant’s Brief at 8-9. Essentially, Appellant claims
that there was never a “true suppression hearing” at which the officer would
have been required to establish probable cause. Id. at 8.
The fundamental tool for appellate review is the official record of the
events that occurred in the trial court. Commonwealth v. Preston, 904
A.2d 1, 6 (Pa. Super. 2006) (citing Commonwealth v. Williams, 715 A.2d
1101, 1103 (Pa. 1998)). The law of Pennsylvania is well settled that matters
which are not of record cannot be considered on appeal. Id. See also
Commonwealth v. Bracalielly, 658 A.2d 755, 763 (Pa. 1995);
Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992);
Commonwealth v. Quinlan, 412 A.2d 494, 496 (Pa. 1980). In the
absence of an adequate certified record, there is no support for an
appellant’s arguments and, thus, there is no basis upon which relief could be
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granted. Preston, 904 A.2d at 7. The certified record consists of the
“original papers and exhibits filed in the lower court, paper copies of legal
papers filed with the prothonotary by means of electronic filing, the
transcript of proceedings, if any, and a certified copy of the docket entries
prepared by the clerk of the lower court[.]” Pa.R.A.P. 1921.
“We can only repeat the well established principle that ‘our review is
limited to those facts which are contained in the certified record’ and what is
not contained in the certified record ‘does not exist for purposes of our
review.’” Commonwealth v. Brown, ___ A.3d ___, 2017 PA Super 133,
2017 WL 1737932 at *18 (Pa. Super. filed May 4, 2017) (quoting
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008)). Our law
is unequivocal that the responsibility rests upon the appellant to ensure that
the record certified on appeal is complete in the sense that it contains all of
the materials necessary for the reviewing court to perform its duty.
Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa. Super. 2006) (en
banc). The Pennsylvania 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 transcripts must be deemed waived
for the purpose of appellate review. Williams, 715 A.2d at 1105. See also
Pa.R.A.P. 1911(d) (stating that “[i]f the appellant fails to take the action
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required by these rules and the Pennsylvania Rules of Judicial Administration
for the preparation of the transcript, the appellate court may take such
action as it deems appropriate, which may include dismissal of the appeal.”).
It is not proper for an appellate court to order transcripts, nor is it the
responsibility of this Court to obtain the necessary transcripts. Williams,
715 A.2d at 1105.
Our review of the record reflects that mere minutes before the
scheduled de novo hearing, Appellant filed a motion to suppress. The trial
court explained its procedure in handling Appellant’s motion to suppress as
follows:
[A]lthough [Appellant’s] motion was denied, and a separate
suppression hearing was not conducted, [Appellant] had the
opportunity at the summary appeal hearing to challenge
the lawfulness of his traffic stop. Evidence presented by the
Commonwealth was sufficient to establish that the stop and the
inquiry into [Appellant’s] license status [were] lawful, and
[Appellant] did not present evidence sufficient to discredit the
Commonwealth’s evidence. Given the last minute nature of
[Appellant’s] suppression motion, and in light of the evidence
presented, [Appellant’s] Motion to Suppress for Want of Probable
Cause was properly denied, and the suppression-based
objections lodged during the hearing were properly
overruled.
Trial Court Opinion, 5/13/16, at 4 (emphases added). Thus, it appears that
the trial court addressed the content of Appellant’s motion to suppress
during the de novo hearing. However, upon review of the certified record
before us, it is obvious that the transcript of the de novo hearing was not
included in the certified record for transmittal to this Court. Our review of
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the docket and the certified record index supports that finding. Therefore,
Appellant failed to ensure that the complete record is before this Court for
review. Accordingly, because we cannot review the issue pertaining to the
denial of Appellant’s motion to suppress without reference to the transcript
of the de novo hearing, our review is hampered, and we are constrained to
deem this issue to be waived on appeal.
Appellant presents the following as his second issue: “Whether the
Court errs in directing an appellate Court for appeal?” Appellant’s Brief a 9.
However, the subsequent discussion in Appellant’s brief contains a
somewhat disjointed discussion interspersing vague claims with legal
authority. In his discussion, Appellant makes reference to “combining”
appeals, and he states that he “would have sought to combine the cases to
show that the underlying conviction was a nullity.” Appellant’s Brief at 10.
Nevertheless, Appellant fails to express with exactitude the cases that he
believes should be combined.
As we have long expressed, it is an appellant’s duty to present
arguments that are sufficiently developed for review. Commonwealth v.
Gould, 912 A.2d 869, 873 (Pa. Super. 2006). The brief must support the
claims with pertinent discussion, with references to the record, and with
citations to legal authorities. Id. Indeed, this Court will not act as counsel
and will not develop arguments on behalf of an appellant. Id.
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Here, the lack of analysis and discussion in the argument portion of
Appellant’s brief precludes us from conducting meaningful judicial review of
Appellant’s second issue. Accordingly, we are constrained to find this issue
to be waived.
In issues three, four, five, and six, Appellant presents arguments
pertaining to the de novo hearing held on February 23, 2016. Specifically, in
issue three Appellant attempts to argue that the trial court erred in failing to
require the Commonwealth to prove that PennDOT records regarding his
suspension were correct. Appellant’s Brief at 10-12. In issue four, Appellant
argues that recusal was appropriate because of “incredible disrespect”
shown to him. Appellant’s Brief at 12. In issue five, Appellant argues that
the verdict of guilt was improper because there was insufficient evidence
that he was driving under suspension; in so doing, he attempts to challenge
the validity of the suspension. Appellant’s Brief at 12-13. In issue six,
Appellant argues that the trial court improperly limited testimony.
Appellant’s Brief at 13.
As we discussed in our review of Appellant’s first issue, the
fundamental tool for appellate review is the official record of the events that
occurred in the trial court. Preston, 904 A.2d at 6. Again, the
responsibility rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty. Kleinicke, 895 A.2d at 575. As
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previously noted, the transcript of the de novo hearing was not included in
the certified record transmitted to this Court. Consequently, Appellant failed
to ensure that the complete record is before us for review. Accordingly, we
cannot review issues three, four, five, and six without reference to the
transcript of the de novo hearing. Hence, our review is hampered, and we
must deem these issues to be waived on appeal.3
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3
We note that in his discussion pertaining to issue three, Appellant
references a document in his reproduced record at page 14a. As we
explained in Preston:
The fundamental tool for appellate review is the official
record of the events that occurred in the trial court. To ensure
that an appellate court has the necessary records, the
Pennsylvania Rules of Appellate Procedure provide for the
transmission of a certified record from the trial court to the
appellate court. The law of Pennsylvania is well settled that
matters which are not of record cannot be considered on appeal.
Thus, an appellate court is limited to considering only the
materials in the certified record when resolving an issue. In this
regard, our law is the same in both the civil and criminal context
because, under the Pennsylvania Rules of Appellate Procedure,
any document which is not part of the officially certified
record is deemed non-existent - a deficiency which cannot be
remedied merely by including copies of the missing documents in
a brief or in the reproduced record. The emphasis on the
certified record is necessary because, unless the trial court
certifies a document as part of the official record, the appellate
judiciary has no way of knowing whether that piece of evidence
was duly presented to the trial court or whether it was produced
for the first time on appeal and improperly inserted into the
reproduced record. Simply put, if a document is not in the
certified record, the Superior Court may not consider it.
Preston, 904 A.2d at 6-7 (emphases in original). We observe that neither
of the documents appearing in Appellant’s reproduced record appended to
(Footnote Continued Next Page)
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In issues seven and eight, Appellant attempts to present arguments
pertaining to racial bias and “disabilities.” Appellant’s Brief at 13-14.
However, the discussions pertaining to these issues are not properly
developed for appellate review. It is well settled that the argument portion
of an appellate brief must be developed with pertinent discussion of the
issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a).
See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996)
(stating that “[t]he argument portion of an appellate brief must be
developed with a pertinent discussion of the point which includes citations to
the relevant authority”).
In Commonwealth v. B.D.G., 959 A.2d 362, 371-372 (Pa. Super.
2008), a panel of this Court offered the following relevant observation
regarding the proper formation of the argument portion of an appellate
brief:
In an appellate brief, parties must provide an argument as to
each question, which should include a discussion and citation of
pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither
obliged, nor even particularly equipped, to develop an argument
for a party. Commonwealth v. Williams, 566 Pa. 553, 577,
782 A.2d 517, 532 (2001) (Castille, J., concurring). To do so
places the Court in the conflicting roles of advocate and neutral
arbiter. Id. When an appellant fails to develop his issue in an
argument and fails to cite any legal authority, the issue is
_______________________
(Footnote Continued)
his appellate brief at pages 14a and 15a is contained in the certified record
that was transmitted to this Court. Accordingly, we may not review either of
the items.
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waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa.
Super. 1996).
Id.
Here, Appellant’s argument concerning issue seven consists of several
sentences baldly alleging racial bias among members of the Centre County
Court of Common Pleas. Appellant’s Brief at 13. The argument pertaining to
issue eight consists of the following single sentence: “This is an American
with Disabilities Act consideration since [Appellant] can not often stay on top
of the multitude of cases.” Appellant’s Brief at 13-14. Completely missing
from either of Appellant’s arguments is any discussion of legal authority or
its relation to the instant case. Thus, neither of these issues is properly
developed for our review as they fail to apply the law to the facts of the
case. Accordingly, we are constrained to conclude that these issues are
waived because the arguments are not adequately developed.
Finally, on April 10, 2017, after this Court heard oral argument,
Appellant filed an application for post-submission relief pursuant to Pa.R.A.P.
2501. In his application, Appellant indicated that he is seeking to address
questions from the panel and acceptance of his previously filed reply brief
with supplemental reproduced record. Within his filing, Appellant seeks to
bolster his original arguments pertaining to the trial court’s handling of his
motion to suppress. Generally, we will accept an application for post-
submission communication when there has been a change in authority.
Pa.R.A.P. 2501. No such change occurred herein. Hence, we deny
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Appellant’s application. Furthermore, with regard to reply briefs, we observe
that such documents are due to be filed fourteen days after service of the
preceding brief and three days before oral argument. Pa.R.A.P. 2185. Here,
the Commonwealth filed its brief on November 21, 2016. Thus, Appellant’s
reply brief was due on December 5, 2016. However, Appellant did not file
his reply brief until April 3, 2017, which was nearly four months after the
due date, and one day before oral argument. Moreover, Appellant has
appended to his reply brief various documents that are not part of the
certified record before us on appeal. As previously stated, in Pennsylvania,
an appellate court is limited to considering only the materials in the certified
record when resolving an issue, and a deficient certified record cannot be
remedied merely by including copies of the missing documents in a brief or
in the reproduced record. Preston, 904 A.2d 6. Hence, we deny
Appellant’s application.
Application for post submission relief denied. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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Com. v. Hamilton, H.
Combined Opinion