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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
SHAUN PATRICK AUSTIN, : No. 2774 EDA 2019
:
Appellant :
Appeal from the Order Entered September 6, 2019,
in the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-CR-0002008-2008
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 24, 2020
Shaun Patrick Austin appeals pro se from the September 6, 2019 order
entered in the Court of Common Pleas of Northampton County that denied his
pro se motion to compel production of transcripts. We affirm.
At the outset, we note that in the underlying criminal case at No. CP-48-
CR-0002008-2008 (“No. 2008-2008”), a jury convicted appellant of 96 counts
of possession of child pornography.1 The trial court imposed an aggregate
sentence of 72 to 192 years of imprisonment. In a companion case at
No. CP-48-CR-0002007-2008 (No. 2007-2008), a jury convicted appellant of
rape of a child, statutory sexual assault, involuntary deviate sexual
1 18 Pa.C.S.A. § 6312(d).
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intercourse, and recklessly endangering another person.2 The trial court
imposed an aggregate sentence of 15 to 40 years of imprisonment at
No. 2007-2008 to run consecutively to the sentence imposed at
No. 2008-2008. This court affirmed appellant’s judgment of sentence at
No. 2007-2008. Commonwealth v. Austin, No. 1091 EDA 2010,
unpublished memorandum (Pa.Super. filed March 11, 2011). This court
affirmed appellant’s convictions at No. 2008-2008, but vacated appellant’s
judgment of sentence and remanded for resentencing after concluding that
the trial court abused its discretion by imposing a de facto life sentence.
Commonwealth v. Austin, No. 1092 EDA 2010, unpublished memorandum
(Pa.Super. filed March 11, 2011). On remand, appellant was resentenced to
an aggregate term of incarceration of 35 to 70 years to run consecutively to
the sentence imposed at No. 2007-2008. This court affirmed appellant’s
judgment of sentence at No. 2008-2008 on May 13, 2013. Commonwealth
v. Austin, 66 A.3d 798 (Pa.Super. 2013) (unpublished memorandum).
With respect to the appeal now before us, the PCRA3 court set forth the
following:
Beginning at least as early as January of 2018,
[appellant] directed serial correspondence to
Northampton County Court Administration seeking
the production of various transcripts. [Appellant] had
also previously corresponded with Northampton
County Court Administration seeking production of
2 18 Pa.C.S.A. §§ 3121(c), 3122.1, 3123, and 2705, respectively.
3 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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transcripts in the case at [No.] C-48-CR-2007-2008.
By way of letter dated January 22, 2018, Northampton
County Court Administration indicated to [appellant]
that:
Your most recent correspondence dated
January 13, 2018, addressed to
J. Jermaine Greene, Sr., Court
Administrator, is hereby acknowledged.
In Mr. Greene’s correspondence to you
dated May 21, 2015 in Case No. 2007-
2008, of which I have enclosed a copy for
your ease of reference, he advised that
the dates referenced which were Calls of
the List, did not produce any transcripts.
January 12, 2009, March 9, 2009,
April 13, 2009, May 11, 2009, June 8,
2009, July 6, 2009, and August 3, 2009
were all calls of the list, and therefore, we
are unable to provide you with transcripts
for said dates.
As advised by Mr. Greene in No. 2007-
2008, and as you have now also been
provided all transcripts in [No.] 2008-
2008, this concludes all future requests
for such in these criminal actions.
On February 14, 2019, [appellant] filed a pro se
Motion to Compel Transcripts, therein seeking
transcripts for “call of the list/orders for continuances
from 1/12/09, 2/9/09, 3/9/09, 4/9/09, 5/11/09,
6/8/09, 7/6/09, and 8/9/09,” and requesting a
conference or hearing with arrangements for
[appellant’s] remote appearance. [Appellant’s]
request for a hearing was essentially a request for an
evidentiary post-conviction relief hearing, whereby
[appellant] sought to have his previous counsel, the
current clerk of courts for Northampton County, and
the current Northampton County Court Administrator
present to testify. In support of his request for
transcripts for the specified dates, [appellant] alleged
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that he believed these transcripts contained evidence
relevant to an argument raised in his previous PCRA
petition involving a previous Rule 600 Hearing and
whether or not [appellant’s] pre-trial counsel had
requested continuances on certain dates.
Additionally, [appellant] cites a previous Order of
Court, dated October 7, 2011, at [No.] 2007-2008,
which granted [appellant’s] previous Motion for
Production of Transcripts and directed that the
following transcripts be provided to [appellant]:
the transcript of the calls of the criminal
list as it relates to the case of [appellant],
criminal action numbers 2006,[4] 2007,
and 2008 of 2008, on the following dates:
January 12, 2009; February 9, 2009;
March 9, 2009; April 14, 2009; May 11,
2009; June 8, 2009; July 6, 2009; and
August 4, 2009.
On September 6, 2019, upon the review of
[appellant’s] correspondence, Motions, and the record
in this matter, th[e trial c]ourt entered an Order
denying [appellant’s] Motion to Compel Transcripts as
moot. Although Judge Smith’s Order of October 7,
2011 at [No.] 2007-2008 granted [appellant’s] Motion
for Production of Transcripts and directed the
production of the requested transcripts, [appellant’s]
Motion was moot because: (1) Northampton County
Court Administration had previously provided
[appellant] with all existing transcripts for the criminal
cases at [No.] 2007-2008 and [No.] 2008-2008, and
informed [appellant] of same; (2) Northampton
County Court Administration further informed
[appellant] that because the transcripts requested
were for Calls of the List, no transcripts for these dates
existed; and (3) part of the relief requested was
essentially in the form of a post-conviction evidentiary
hearing, and [appellant] had not established the
jurisdictional requisites because he did not have a
4 On the record before us, we are unable to ascertain the nature of the
proceedings that have only been identified as No. 2006-2008.
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PCRA petition presently pending before this Court
setting forth the basis for such relief. In fact, at the
time [appellant] filed his Motion, the Superior Court of
Pennsylvania still had jurisdiction over [appellant’s]
appeal from the dismissal of his previous PCRA
petition in the above-captioned matter, at docket
number 1[8]76 EDA 2018. For these reasons, no
relief could have been afforded to [appellant] and
there was no basis on which to grant his Motion.
PCRA court opinion, 10/16/19 at 3 (record citation omitted).
The record reflects that appellant filed a timely notice of appeal. Within
his notice of appeal, appellant included a Pa.R.A.P. “1925(b) [m]atters
complained of on [a]ppeal.” (Notice of appeal, 9/13/19.) The PCRA court
then filed a Rule 1925(a) opinion.
Appellant raises the following issues.
1. Has the [trial] court committed a grievious [sic]
error in refusing to turn over transcripts of the
“call of the list/continuance requests”; wherein
[appellant] believes said transcript would
affirmatively prove the prosecutor lied and
[appellant’s] speedy trial rights violated [sic]?
2. Has the [trial] court committed an error by
failing to hold a hearing to reconstruct the
missing transcripts?
Appellant’s brief at 2.
At the outset, we note that appellant’s brief to this court does not
conform in all material respects with Pa.R.A.P. 2111 and dismissal would be
warranted on that basis. See Pa.R.A.P. 2101 (authorizing dismissal of appeal
when appellant submits a substantially defective brief). Appellant’s brief does
not include the order in question, but merely references the denial of
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appellant’s motion. The brief also fails to include a statement of the scope of
review and the standard of review, a statement of the case, a summary of the
argument, and a short conclusion stating the precise relief sought.
Additionally, appellant’s one-page argument fails to advance any
meaningful discussion as to how the PCRA court erred or abused its discretion
in denying appellant’s motion to compel production of transcripts when (1) all
existing transcripts have been provided to appellant; (2) the call-of-the-list
transcripts do not exist; and (3) the law of this Commonwealth holds that a
court need not comply with a transcript request when no action is pending
before it. See Commonwealth v. Martin, 705 A.2d 1337, 1338 (Pa.Super.
1998) (Pa.Super. 1998) (finding trial court properly exercised discretion in
denying motion for transcripts where no action pending); see also
Commonwealth v. Crider, 735 A.2d 730, 733 (Pa.Super. 1999) (stating “a
court is not required to comply with a defendant’s request for transcripts in
order to pursue relief in a PCRA proceeding where no such action is pending.”).
Indeed, appellant’s one-page argument fails to include any discussion of any
relevant authority. It is well settled that “where an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that claim
is waived.” Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(citations omitted). Consequently, appellant waives his claim on appeal.
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Notwithstanding waiver, we note that appellant is not entitled to the
relief he sought. The record reflects that appellant filed his pro se motion to
compel production of transcripts approximately nine months after the
dismissal of his PCRA petition.5 Therefore, the PCRA court properly exercised
its discretion in denying appellant’s motion for transcripts because no PCRA
petition was pending. See Crider, 735 A.2d at 733; see also Martin, 705
A.2d at 1338.6 Finally, appellant claims that he needs the transcripts because
“the [trial] court [that presided over his jury trial] did not rule on [his Rule
600] motion until it was appealed.” (Appellant’s brief at 4.) In affirming
appellant’s convictions at No. 2008-2008, however, this court thoroughly
discussed and disposed of appellant’s meritless challenge to the denial of his
Rule 600 motion.7 Austin, No. 1092 EDA 2019 at 10-13.
Order affirmed.
5 The record reflects that the PCRA court dismissed appellant’s PCRA petition
on May 8, 2018, and that appellant filed his motion to compel production of
transcripts on February 14, 2019.
6 We further note that even if appellant was entitled to the call-of-the-list
transcripts, he would not receive them because they do not exist.
7We note that appellant raised an identical Rule 600 claim on direct appeal of
his convictions at No. 2007-2008. In affirming appellant’s judgment of
sentence on that docket, this court, in an identical analysis as that set forth
on appellant’s appeal at No. 2008-2008, concluded that appellant’s challenge
was meritless. Austin, No. 1091 EDA 2010 at 11-14.
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 3/24/2020
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