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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHEEN MCDONALD, :
:
Appellant : No. 2585 EDA 2016
Appeal from the Judgment of Sentence May 26, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003215-2015
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 05, 2017
Appellant Rasheen McDonald appeals from the Judgment of Sentence
entered by the Court of Common Pleas of Delaware County on May 26,
2016, after a jury convicted him of, inter alia, Kidnapping, Robbery, and
Conspiracy. Appellant asserts a Batson1 violation and challenges the
sentencing court’s application of the deadly weapons enhancement. After
careful review, we affirm.
The relevant facts, as gleaned from the trial court’s Pa.R.A.P. 1925(a)
Opinion, are as follows. On February 7, 2015, two masked men attempted
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* Former Justice specially assigned to the Superior Court.
1 Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the use of
peremptory challenges to purposefully remove prospective jurors on the
basis of their race violates the equal protection clause of the United States
Constitution).
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to pull Donald Crews from his car after he parked near Grays Street in
Chester. Mr. Crews fought them off and ran away, but when he fell, the two
men grabbed him, hit him over the head with a gun, and brought him back
to the car. They forced Crews into the back seat at gunpoint and bound his
hands in front of him with zip ties. Crews recognized Appellant’s voice as
Appellant repeatedly asked, “Where’s the money?”
The men then drove Crews to an alleyway in Chester, where Appellant
took a necklace and cash from Crews. Appellant repeatedly asked Crews
“Where’s the money?” in addition to “Who is up at 11th Street?” and “Who is
up at Girard Avenue?” When Crews did not answer, Appellant opened the
rear passenger door and, at Appellant’s direction, the other individual shot
Crews in the leg. Appellant then grabbed Crews by the legs and forced him
into the trunk of the vehicle. Appellant’s mask came off at that time, and
Crews clearly saw Appellant’s face.
Crews kicked in the back seat of the car and escaped. However, as he
fled, a third individual grabbed Crews and put him back into the back seat of
the car. Appellant was no longer with them. Crews jumped from the car as
it was traveling toward 11th Street, and ran to a house for help.
When police arrived, Crews told the responding officer that Appellant
and others had kidnapped and shot him, and then taken his car. The City of
Chester Police Department investigated and arrested Appellant on February
17, 2015.
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A jury trial proceeded on March 22 and 23, 2016, after which the jury
found Appellant guilty of Kidnapping, Robbery, Aggravated Assault, and
Conspiracy.2,3 The court sentenced Appellant to an aggregate term of 22.3
to 44.6 years’ incarceration followed by 11.5 years’ probation.
After the denial of his Post-Sentence Motion, Appellant timely
appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the lower court err in finding that the Deadly Weapon
Enhancement is not illegal pursuant to Alleyne v. United
States?
2. Did the court err in denying that there was a violation
pursuant to Batson v. Kentucky, especially in light of the
missing transcript from jury selection?
Appellant’s Brief at 1.
In his first issue, Appellant asserts that the sentencing court erred in
applying the deadly weapon enhancement provision to his sentence pursuant
to Alleyne.4 No relief is due.
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2 18 Pa.C.S. § 2901(a)(3); 18 Pa.C.S. §3701(a)(1)(i); and 18 Pa.C.S. §
2702(a), respectively.
3The jury also found Appellant guilty of Robbery of a Motor Vehicle, and
Conspiracy to Robbery of a Motor Vehicle.
4 Alleyne v. U.S., 133 S.Ct. 2151 (U.S. 2013) (holding that any fact that
increases the mandatory minimum sentence is an element of the crime and
must be submitted to the jury).
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The Pennsylvania Sentencing Guidelines provide that when a court
determines that a firearm was used during the commission of a crime, it
“shall consider” the application of a sentencing enhancement provided in the
DWE/Possessed Matrix (§ 303.17(a)). 204 Pa. Code § 303.10(a)(1)(i). 5
This Court has observed that an Alleyne challenge is inapplicable to the use
of the deadly weapon enhancement. Commonwealth v. Buterbaugh, 91
A.3d 1247, 1270 n.10 (Pa. Super. 2014) (en banc).6 See also
Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015), affirmed in
part, reversed in part, vacated on other grounds, 149 A.3d 29 (Pa. 2015)
(explaining that, unlike minimum sentences imposed pursuant to statute,
sentencing guidelines are only advisory and, thus, enhancements “do not
bind a trial court to any particular sentencing floor, nor do they compel a
trial court in any given case to impose a sentence higher than the court
believes is warranted. They require only that a court consider a higher
range of possible minimum sentences.”).
Because the deadly weapons enhancement is part of the sentencing
guidelines, Alleyne does not apply. Accordingly, this claim warrants no
relief.
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5Crimes in which a firearm is an element of the crime are excluded from the
deadly weapons enhancement guideline. See 204 Pa. Code § 303.10(a)(3).
6 As the Buterbaugh Court acknowledged, neither party in that case
challenged the deadly weapons sentencing enhancement as a violation of
Alleyne.
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In his second issue, Appellant asserts that the trial court erred in
denying Appellant’s Batson objection made during voir dire and again in his
Post-Sentence Motion. Additionally, Appellant contends that he cannot
address the Batson claim he raises on appeal because there is no record of
the sidebar conferences during jury selection. In light of this, Appellant
requests that this Court remand the case to the trial court to create a
“Statement in Absence of Transcript” under Pa.R.A.P. 1923 or an “Agreed
Statement of Record” under Pa.R.A.P. 1924. Appellant’s Brief at 10, 11-13.
It is well settled that the appellant bears the burden of producing a
complete record for, and prior to, appellate review. Commonwealth v.
Dunkle, 932 A.2d 992, 996 (Pa. Super. 2007). See also Commonwealth
v. Michuck, 686 A.2d 403, 408 (Pa. Super. 1996) (discussing an appellant’s
responsibility to include relevant portions of the record for appellate review,
including voir dire excerpts, by preparing a statement in absence of record
or an agreed statement of record to supplement the record). If relevant
portions of the notes of testimony are missing, “it becomes a circumstance
the appellant or his counsel needs to respond to by, for example, ordering
notes counsel failed to order earlier; or seeking an order of court to have
ordered notes promptly transcribed, or otherwise made available; or, where
notes cannot be secured, to take steps to have an equivalent picture of the
proceeding generated. See Pa.R.A.P. 1911(a); Pa.R.A.P. 1923 (statement in
the absence of transcript); Pa.R.A.P. 1924 (agreed upon statement of the
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record).” Commonwealth v. Lesko, 15 A.3d 345, 411 (Pa. 2011). It is
not the responsibility of this Court to obtain a copy of the trial transcript for
the purposes of reviewing an appellant’s claims. Commonwealth v.
Osellanie, 597 A.2d 130, 132 (Pa. Super. 1991).
In Appellant’s Brief, counsel fails to describe what, if any, efforts were
made to prepare a statement in lieu of a transcript. He merely asserts that
because he was not counsel of record at the trial phase, he “is therefore
unable to circulate such a statement.” Appellant’s Brief at 12. We find this
assertion to be somewhat feeble. This Court has explained, “Rule 1923 does
not require appellate trial counsel to have first hand, direct knowledge of
what transpired at trial.” Commonwealth v. Burrows, 550 A.2d 787, 789
(Pa. Super. 1988). “We reject any suggestion that a statement cannot be
prepared where there is no showing of any effort whatsoever to review the
existing record, consult with trial defense counsel, and consult with the
defendant.” Id. Accordingly, we decline counsel’s invitation to remand for
the preparation of a statement he was obligated to obtain prior to seeking
this Court’s review.
Without a statement in lieu of a transcript, which was Appellant’s
responsibility to provide, we are unable to conduct a proper review and
analysis of Appellant’s Batson challenge. Accordingly, we conclude this
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issue is waived.7 See Osellanie, supra at 132 (concluding that, in the
absence of a trial transcript or statement in lieu of a transcript, this Court is
unable to conduct proper appellate review and waiver is appropriate).
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2017
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7 We further note that in the Argument section of his Brief, Appellant fails to
identify with specificity the trial court’s error, the juror who was struck, the
circumstances of the strike, the other strikes, and the composition of the
jury panel or the trial jury. Appellant also fails to apply the relevant legal
principles to the facts. Appellant’s failure to develop this issue prevents this
Court from conducting meaningful appellate review, and provides an
additional reason for this Court to conclude that this issue is waived. See
Commonwealth v. B.D.G., 959 A.2d 362, 371-372 (stating that failure to
develop an issue in appellate brief results in waiver of that issue); see also
Pa.R.A.P. 2119.
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