J-S11012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 OMAR POWELL                              :
                                          :
                     Appellant            :   No. 1749 EDA 2018

                    Appeal from the Order May 29, 2018
    In the Court of Common Pleas of Lehigh County Criminal Division at
                     No(s): CP-39-CR-0002378-2006


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                FILED JULY 1, 2019

      Appellant, Omar Powell, appeals the May 29, 2018 order denying his

request for transcripts. We affirm.

      The trial court summarized the factual and procedural history of this

case in its opinion pursuant to Pa.R.A.P. 1925(a), as follows:

            [Appellant] has filed this appeal from the denial of his pro
      se “Request for Transcripts.” It is alleged that [Appellant] was
      “deprived...of his right to an effective appeal,” and “deprived...of
      a meaningful review of the record requested...” as a result of the
      court denying his motion.1 These claims are unfounded.

            1   See Concise Statement.

            [Appellant] was found guilty by jury of Murder of the First
      Degree on March 29, 2007. This conviction resulted from the
      murder of Christine Kennedy, which occurred on March 10, 1997.
      Thereafter, [Appellant] was sentenced to life imprisonment on
      April 17, 2007. Since that date, [Appellant] has had his Murder
      of the First Degree conviction examined by the Superior Court at
      least six (6) times, and he has not been entitled to any relief.2
      Currently, no matters are pending with this [c]ourt.
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            2 Commonwealth v. Omar Powell, 2285 EDA 2007
            (Pa.Super. July 14, 2008); Commonwealth v. Omar
            Powell, 2083 EDA 2010 (Pa.Super. August 22, 2011);
            Commonwealth v. Omar Powell, 3199 EDA 2012
            (Pa.Super. June 19, 2013); Commonwealth v. Omar
            Powell, 1317 EDA 2014 (Pa.Super. December 1,
            2014); Commonwealth v. Omar Powell, 1364 EDA
            2017 (Pa. Super. February 12, 2018); Commonwealth
            v. Omar Powell, 1799 EDA 2017 (Pa. Super. February
            22, 2018).

             Previously, counsel was appointed to represent [Appellant]
      both at trial and in Post Conviction Relief Act (hereinafter PCRA)
      proceedings. Most recently, on September 12, 2016, Attorney
      Matthew Rapa was appointed to represent [Appellant] in regards
      to his fourth PCRA petition.        Counsel’s independent inquiry
      revealed no basis for relief, and he filed a Motion to Withdraw and
      a Finley3 no-merit letter indicating the same. This [c]ourt entered
      an order denying the PCRA petition, and [Appellant] appealed.
      The Superior Court affirmed the denial of [Appellant’s] fourth
      PCRA petition on February 22, 2018.

            3Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
            1988).

             On May 8, 2018, [Appellant] attempted to revive his case
      yet again by filing a Request for Transcripts, with a supporting
      affidavit alleging indigent status and requesting the cost of the
      transcripts be waived. In response, this [c]ourt issued an order
      denying the request for transcripts on May 29, 2018, emphasizing
      that [Appellant] had no matters pending for which transcripts
      would be required, and that all the materials he requested had
      previously been provided. [Appellant] filed a Notice of Appeal
      challenging that order on June 13, 2018, and he was directed to
      comply with Pa.R.A.P. 1925(b) on June 14, 2018. On June 29,
      2018, [Appellant] filed a “Concise Statement Pursuant to
      Pa.R.A.P. 1925(b)(1)” (hereinafter Concise Statement), making
      five (5) allegations regarding the denial of his request.

Trial Court Opinion, 7/27/18, at 1-2.




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      Appellant presents the following issues for our review, which we set forth

verbatim:

      Did the Common Pleas Court Fail to Provide Proof that a copy of
      the requested record has in fact been provided to the defendant
      (Not counsel)?

      Did the Common Pleas Court deprive defendant of the right to an
      effective appeal by denying him access to the trial transcript, and
      PCRA Hearing Transcript in the past and present?

      Did the Common Pleas Court deprive defendant of a meaningful
      review of the record requested insuring that he will be unable to
      avail the perfection of an adelquate appeal of his conviction?

      Did the Common Pleas Court error when it fail to provide an
      alternative to obtain the record thedefendant requested?

      Did the Common Pleas Court deprive defendant of a meaningful
      review of the requested record insuring that he will never have a
      equal opportunity in litigating any issues fairly in the future, as it
      did in the past, and also preventing him from discovering any
      issues within the record?

Appellant’s Brief at 2-3.

      Appellant does not separate the argument portion of his brief into five

distinct sections corresponding to his statement of the questions involved.

Instead, he presents one undivided discussion, contending that the common

pleas court erred when it denied him access to transcripts. Appellant’s Brief

at 4-5. Appellant asserts that “even though trial counsel was provided with a

copy [counsel] never turned over a copy to [Appellant].” Id. at 4. Appellant

further argues that:

      because he was never provided with a copy of the requested
      transcript by counsel and the court it was impossible for him to
      prepare a meaningful ap[p]eal for the court to review, and that

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      for whatever reason [Appellant] is not at fault for not having
      essential transcripts in his possession.

Id.

      In Commonwealth v. Martin, 705 A.2d 1337 (Pa. Super. 1998), under

circumstances similar to those presented in the instant case, we affirmed the

trial court’s denial of such a request for the following reasons:

            The resolution of this appeal is governed by this Court’s
      holding in Commonwealth v. Ballem, 482 A.2d 1322
      (Pa.Super.1984). Like the appellant in that case, the instant
      appellant asserts that the requested documents are necessary in
      order for him to pursue relief in post-conviction proceedings. As
      such, the reasoning that was affirmed in Ballem applies directly
      to this matter. That is, despite the validity of the asserted
      necessity for a Post Conviction Relief Act motion,

            no such action is currently pending. Consequently,
            the lower court, confronted only with the instant
            petition, was in no position to assess appellant’s
            claims to determine whether they constituted
            compelling reasons warranting a grant of his petition.
            In such a case, and until a proceeding to question the
            record is commenced, we find no abuse of the lower
            court’s discretion in denying appellant’s request.

      Id. at 1324.

Martin, 705 A.2d at 1338 (footnotes omitted).

      This Court again addressed the issue in Commonwealth v. Crider, 735

A.2d 730, 733 (Pa. Super. 1999). In Crider, the defendant filed a motion

seeking, inter alia, a copy of the certified record and the transcripts of his

guilty plea and sentencing hearings in order to pursue PCRA relief. Id. at 731.

In upholding the trial court’s denial of Crider’s motion, this Court explained:




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             The trial court correctly observed that 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. [Martin, 705 A.2d 1337]; Ballem, [482 A.2d 1322]. In
      Martin, this Court rejected the appellant’s argument that the
      documents requested through defendant’s pro se motion were
      necessary in order for the defendant to pursue relief in post-
      conviction proceedings. Martin, 705 A.2d at 1338. We adopted
      the reasoning in Ballem that a trial court, confronted only with a
      petition for production of documents where no action is pending,
      is in no position to assess a petitioner’s claims to determine
      whether they constitute compelling reasons warranting a grant of
      the petitioner’s petition. Id. Here, as in Martin, we decline to
      find an abuse of discretion in denying the petitioner’s request until
      a proceeding to question the record is commenced. See id.

Crider, 735 A.2d at 733.

      In addressing Appellant’s claims herein, the trial court cited Martin and

Crider in concluding that it was not required to grant a request for transcripts

when the request was not connected to a pending action. Trial Court Opinion,

7/27/18, at 3.    The court also stated the following in furtherance of its

decision:

             Aside from the absence of a pending matter, [Appellant] has
      failed to identify the specific transcripts he is seeking.4 He also
      ignores the fact that all of [the] transcripts have already been
      provided to him on numerous occasions.5 Despite having multiple
      opportunities to review these materials during the course of the
      appeal process, he has been unable to produce a claim that would
      entitle him to relief. Even when counsel was appointed to
      represent [Appellant’s] interests, they were unable to substantiate
      any legitimate claims for relief on his behalf. It is unlikely that
      there is anything left to be discovered in the record if [Appellant’s]
      motion is granted. This most recent filing is nothing more than a
      thinly veiled attempt to re-litigate issues that have previously
      [been] deemed meritless.

            4 [Appellant’s] failure to specify which transcripts he
            is requesting suggests that he has not yet established

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J-S11012-19


              a new basis for challenging his conviction. [Appellant]
              is really engaging in a fishing expedition, hoping to
              find a new issue to raise by reviewing the entire record
              yet again. This is not a basis for granting his request.

              5  Throughout the history of this case, all of the
              transcripts have been provided to [Appellant] at one
              point or another for his review, and he utilized them
              in crafting his series of appeals. Nothing in the record
              has changed since the last time the Superior Court
              denied relief on February 22, 2018, so there is no
              reason to provide [Appellant] with the transcripts
              once more.

Trial Court Opinion, 7/27/18, at 3-4.

       Instantly, Appellant had not filed a PCRA petition or initiated any other

pending matter when he requested copies of the transcripts. Consequently,

pursuant to Martin, Crider, and Ballem, the trial court did not err in denying

Appellant’s request. Furthermore, Appellant provides no argument directly

addressing our holdings in Martin, Crider and Ballem.            Moreover, as the

common pleas court observed, Appellant has not identified which transcript

he is seeking or the basis for the request; thus, his claim lacks specificity and

could be waived on that basis.1            Lastly, evidence of record reflects that

Appellant has received these transcripts previously. Accordingly, we conclude

that Appellant is not entitled to relief on his claims.



____________________________________________


1 “The failure to develop an adequate argument in an appellate brief may
result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth v.
Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007). We shall not develop an
argument for an appellant, nor shall we scour the record to find evidence to
support an argument; instead, we will deem issue to be waived. Id.

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J-S11012-19


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/19




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