J-S76017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

JOHN ELLSWORTH O’HARA

                          Appellant                   No. 786 WDA 2014


                     Appeal from the Order April 9, 2014
                In the Court of Common Pleas of Erie County
               Criminal Division at No(s): 1034/1065 of 1990


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                          FILED FEBRUARY 5, 2015

      Appellant, John Ellsworth O’Hara, appeals pro se from the order

entered April 9, 2014, in the Court of Common Pleas of Erie County, which

denied his “Petition for Review from Denial of Petitioner’s Private Criminal

Complaint” filed against the Superintendent of SCI-Albion.      After careful

review, we affirm.

      On August 9, 1990, O’Hara entered a guilty plea to two counts of

Burglary, Aggravated Indecent Assault, and Possessing Instruments of

Crime. The trial court sentenced O’Hara on September 10, 1990. O’Hara

filed a motion for reconsideration of sentence on January 18, 1991, which

the trial court denied. O’Hara did not file a direct appeal.

      Over the following years, O’Hara has filed no less than nine PCRA

petitions or sundry other motions, all of which were denied as either
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meritless or untimely and affirmed as such on appeal.              Relative to the

instant case, on April 8, 2014, O’Hara filed a “Petition for Review from Denial

of a Petitioner’s Private Criminal Complaint.” O’Hara alleged in the petition

that he filed the private complaint against “Nancy Giroux – Superintendent

and Jack Denari [sic] – District Attorney, Respondents,” on February 28,

2014.     Neither the private criminal complaint nor the district attorney’s

alleged denial of the complaint are noted in the docket or otherwise

contained in the certified record.         The trial court, noting that the private

criminal complaint was not filed by the district attorney’s office, treated

O’Hara’s petition for review as a petition under the Post Conviction Relief

Act,1 and denied the petition.         Order, 4/9/14.   This timely pro se appeal

followed.

        On appeal, O’Hara raises 22 issues for our review – many of which

were not included in his court ordered 1925(b) statement. Preliminarily, we

note that O’Hara’s failure to ensure a complete certified record precludes our

review of the issues he purports to raise on appeal. The fundamental tool

for appellate review is the official record of the events that occurred in the

lower court, and “appellate Courts are limited to considering only those facts

that have been duly certified in the record on appeal.” Commonwealth v.

Williams, 715 A.2d 1101, 1103 (Pa. 1998) (citation omitted).            Therefore,


____________________________________________


1
    42 PA.CONS.STAT.ANN. §§ 9541-9546.



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this Court cannot meaningfully review claims raised on appeal unless we are

provided with a full and complete certified record. See Commonwealth v.

O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006). “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.”

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc).

      “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. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008).

Therefore, “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.’” Id. (citation omitted).

      Instantly, as noted, the certified docket contains no record whatsoever

that O’Hara filed a private criminal complaint on February 28, 2014, or that

the district attorney subsequently disapproved thereof. Deprived as we are

of the documents essential to a meaningful review of the purported

disapproval of O’Hara’s complaint, we are constrained to find that the issues

O’Hara raises on appeal are waived.

      Even if we were to review O’Hara’s claims, they would not merit relief.

O’Hara summarizes the gist of his argument thusly:




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      The Superintendent Nancy Giroux cannot produce or certify in
      writing [t]hat she has authorization for detention. She caanot
      [sic] produce the documents that is giving the authorization.
      Which only goes to show that appellant did prove a prima facie
      case and that the District Attorney’s Office should of [sic] filed
      the charges against her. Is appellant challenging his conviction,
      no.

Appellant’s Brief at 14-15.

      Although O’Hara’s brief contains scant citation to supporting legal

authority, we gather that he is alleging that the records officer at SCI-Albion

had no copy of his sentencing order, and therefore the state prison did not

have legal authority to confine him. Section 9764 of the Sentencing Code

states, in part, that

      Upon commitment of an inmate to the custody of the
      Department of Corrections, the sheriff or transporting
      official shall provide to the institution’s records officer or
      duty officer, in addition to a copy of the court commitment
      form DC-300B generated from the Common Pleas Criminal Court
      Case Management System of the unified judicial system … [a]
      copy of the sentencing order and any detainers filed against
      the inmate which the county has notice.

42 Pa.C.S. § 9764(a)(8) (emphasis added). Recently, in Joseph v. Glunt,

96 A.3d 365 (Pa. Super. 2014), appeal denied, 101 A.3d 787 (Pa. 2014),

our Court reiterated:

      None of the provisions of section 9764 indicate an affirmative
      obligation on the part of the DOC to maintain and produce the
      documents enumerated in subsection 9764(a) upon the request
      of the incarcerated person. Moreover, section 9764 neither
      expressly vests, nor implies the vestiture, in a prisoner of any
      remedy for deviation from the procedures prescribed within.




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Id. at 371. This Court further noted that “courts confronting this issue in

the past have deemed a record of the valid imposition of sentence as

sufficient authority to maintain a prisoner’s detention notwithstanding the

absence of a written sentencing order under [section] 9764(a)(8).”         Id. at

372.

       Instantly, the docket indicates a valid judgment of sentence was

entered on September 10, 1990.                 A copy of the sentencing order is

contained in the certified record.        Therefore, we would find O’Hara’s claim

that his detention is illegal under section 9764 to be patently meritless.

       Order affirmed.2



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2015




____________________________________________


2
 To the extent the trial court treated O’Hara’s petition for review as a serial
PCRA petition, we find this decision to have been in error.



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