J-S17009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

EDWARD MARTIN,

                            Appellant                 No. 243 EDA 2016


          Appeal from the Judgment of Sentence of January 5, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0013191-2014


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 12, 2017

       Appellant, Edward Martin, appeals from the judgment of sentence

entered on January 5, 2016. We affirm.

       The Commonwealth charged Appellant, Shaheed Carroll, and Darnell

Woodson with a multitude of crimes related to the assault, robbery, and

intimidation of the Victim, T.S. (hereinafter “the Victim”).   The trial court

ably summarized the underlying facts of this case:1


____________________________________________


1
  Appellant, Shaheed Carroll, and Darnell Woodson were tried together and
the underlying facts with respect to all three defendants are identical. The
trial court did not file an opinion in Appellant’s case. We, therefore, quote
the trial court’s factual recitation in its opinion filed in Shaheed Carroll’s
case, as the underlying facts are identical to those in the case at bar. See
Trial Court Opinion at Commonwealth v. Carroll, 1930 EDA 2016,
1/23/17, at 1-9.
J-S17009-17


         On September 19, 2014, the [Victim] was leaving a friend’s
         house on the 6100 block of Frontenac [Street] in
         Philadelphia.    At that location he was approached by
         [Shaheed Carroll], along with co-defendants, Darnell
         Woodson and [Appellant].         The co-defendant, Darnell
         Woodson[,] made a comment regarding [the Victim]
         “snitching” about a previous robbery where [the Victim was
         also victimized].       The co-defendant Woodson then
         [instigated] a fight between the two. . . . [Appellant then]
         joined in the fight and both started punching and kicking
         [the Victim] all over his body. [The Victim] fell to the
         ground and at that point [Shaheed Carroll] began kicking
         him. All three defendants then went through [the Victim’s]
         pockets and took from him his cell phone, charger, SEPTA
         Transpass, headphones, and [$5.00] before running off.
         [The Victim] called 911 and was able to provide the police
         information so that his cell phone could be tracked.

         Based on the information about [the Victim’s] cell phone,
         police officers were able to track the phone to the area of
         5300 Darrah Street. At that location, officers stopped the
         three co-defendants since they matched the description
         given by [the Victim]. [The Victim] positively identified
         each co-defendant as being a participant in the robbery.
         The items [the Victim] identified as being taken from him by
         the co-defendants were recovered from their possession.

Trial Court Opinion at Commonwealth v. Carroll, 1930 EDA 2016,

1/23/17, at 2 (internal citations omitted).

       Following trial, the jury found Appellant guilty of receiving stolen

property, simple assault, intimidation of a witness, robbery, and criminal

conspiracy.2    N.T. Trial, 11/2/15, at 24-25.   On January 5, 2016, the trial




____________________________________________


2
  18 Pa.C.S.A. §§ 3925(a), 2701(a), 4952(a)(1), 3701(a)(1)(iv), and 903,
respectively.



                                           -2-
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court sentenced Appellant to serve an aggregate term of three to six years

in prison for his convictions. N.T. Sentencing, 1/5/16, at 60-61.

       Appellant filed a timely notice of appeal and now raises four claims to

this Court:3

         1) Did the [trial] court commit error when it permitted
         Detective Ortiz to give [her] opinion as to the complaining
         witness’s mental state despite having no formal medical
         training?

         2) Did the [trial] court commit error when it permitted
         Officer Lewis to read a portion of his written statement
         because it was improper bolstering and a prior consistent
         statement?

         3) Did the [trial] court commit error when it denied the
         defense motion for judgment of acquittal on the charge of
         intimidation of a witness when the proper charge should
         have been retaliation of a witness?

         4) Did the [trial] court commit error when it responded to
         jury question [number two] [(can you tell us what objects
         were recovered from which of the defendants from the
         September incident?)] by sending back the property receipt
         as opposed to instructing the jury that their recollection
         controls?

Appellant’s Brief at 6 (some internal capitalization omitted).4
____________________________________________


3
  The trial court granted Appellant permission to file a Pennsylvania Rule of
Appellate Procedure 1925(b) statement nunc pro tunc. Trial Court Order,
7/11/16, at 1. Appellant then filed a timely Rule 1925(b) statement and,
within his statement, Appellant listed the claims he currently raises on
appeal. See Appellant’s Rule 1925(b) Statement, 7/22/16, at 1-2.
4
   We note that the Commonwealth failed to file a brief in this case despite
filing an application for extension of time to file a brief which was granted by
order of this Court on November 28, 2016.



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      Appellant’s first two claims on appeal challenge evidentiary rulings

made by the trial court. We have explained:

        [Our] standard of review for a trial court’s evidentiary
        rulings is narrow. The admissibility of evidence is solely
        within the discretion of the trial court and will be reversed
        only if the trial court has abused its discretion. An abuse of
        discretion is not merely an error of judgment, but is rather
        the overriding or misapplication of the law, or the exercise
        of judgment that is manifestly unreasonable, or the result of
        bias, prejudice, ill-will or partiality, as shown by the
        evidence of record.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (internal

quotations and citations omitted).      “To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial

to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.

Super. 2012) (internal quotations and citations omitted).    “A party suffers

prejudice when the trial court’s error could have affected the verdict.”

Commonwealth v. Tyack, 123 A.3d 254, 257 (Pa. Super. 2015) (internal

quotations and citations omitted).

      Contrariwise, “an erroneous ruling by a trial court on an evidentiary

issue does not require us to grant relief where the error was harmless.”

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005). Our Supreme

Court has held:

        Harmless error exists where: (1) the error did not prejudice
        the defendant or the prejudice was de minimis; (2) the
        erroneously admitted evidence was merely cumulative of
        other untainted evidence which was substantially similar to
        the erroneously admitted evidence; or (3) the properly
        admitted and uncontradicted evidence of guilt was so

                                     -4-
J-S17009-17


        overwhelming and the prejudicial effect of the error was so
        insignificant by comparison that the error could not have
        contributed to the verdict.

Id. (internal quotations and citations omitted).     “An error will be deemed

harmless where the appellate court concludes beyond a reasonable doubt

that the error could not have contributed to the verdict.”       Id. at 528. “If

there is a reasonable possibility that the error may have contributed to the

verdict, it is not harmless.   The burden of establishing that the error was

harmless rests upon the Commonwealth.” Id. (internal citations omitted).

      First, Appellant claims that the trial court erred “when it permitted

Detective Ortiz to give [her] opinion as to [the Victim’s] mental state despite

having no formal medical training.” Appellant’s Brief at 11. This claim fails.

      Philadelphia Police Detective Erica Ortiz-Griffin interviewed the Victim

in the early morning of September 20, 2014, within hours after the Victim

was beaten and robbed. During the Commonwealth’s re-direct examination

of Detective Ortiz-Griffin, the following questions, testimony, exchanges, and

objections occurred:

        Q: Okay. . . . [D]id you ask [the Victim] about if he had
        received prior medical treatment?    Is that one of the
        statements that you asked him?

        A: No, it isn’t.     And to be honest, it’s common for
        complainants, like, to miss stuff unless you specifically ask
        them.

        Q: Okay.

        A: Actually, in this case, he was a little off, I would say.

        Q: What - -

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       A: Maybe a little - -

       Q: What do you mean by off?

       A: Maybe he had a little bit of mental problems.

          [Appellant’s Attorney]: I would object to that, Your
          Honor. It calls for speculation unless she’s giving a
          medical diagnosis.

          [Trial Court]: All right. Well - -

          [Shaheed Carroll’s Attorney]: Unless she’s an expert in
          that field, I would join in the objection.

          [Commonwealth]: I’ll ask to - -

          [Trial Court]: Sustained in terms of - - you can talk
          about specific behavior, but certainly - -

          [Commonwealth]: I’ll have - -

          [Appellant’s Attorney]: Move to strike.

       Q: I will have you clarify. Not mental health issues, but
       what was it about it that seemed off?

       A: He just seemed, like, maybe he was, like, delayed a little
       bit, educationally delayed. I don’t know how to say it.

          [Shaheed Carroll’s Attorney]: Once again, I would object
          to saying - -

          [Trial Court]: Say that again.

          [Shaheed Carroll’s Attorney]: The same testimony.

       A: He just appeared to be a, like, a little slow. He - -

          [Trial Court]: Well, she can describe behaviors, but just
          not medical - - I mean, what was he doing specifically?

       Q: What was he doing specifically?

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J-S17009-17



        A: It was really just how he acted. Like, he was, like, slow
        to respond to stuff, but he was - - I mean, pretty much
        everybody knows what - - you can tell when someone has
        problems. You could tell he had some problems.

            [Appellant’s Attorney]: Again, I would object.

            [Shaheed Carroll’s Attorney]: Objection.

        A: He was having difficulty.

            [Trial Court]: You have to describe the behavior. Like,
            what do you mean?

        A: He was, like, slow to answer to stuff. He – pretty much
        that was it. He just appeared to be slow in answering stuff.

            [Commonwealth]: Okay. Thank you.

            [Trial Court]: Any recross based on that?

                                        ...

            [Appellant’s Attorney]: No, Your Honor.

N.T. Trial, 10/27/15, at 34-36.

      On appeal, Appellant claims that the trial court erred in “permitting”

Detective Ortiz-Griffin to testify that the Victim “was ‘delayed’ and had

‘mental problems’” because, Appellant claims, such testimony went “beyond

the realm of lay opinion and into expert testimony reserved for one with

proper medical training.”   Appellant’s Brief at 11-12.      Further, Appellant

claims that the testimony caused him prejudice because “the jury now

viewed [Appellant] and his co-defendant[s] as having attacked someone

who had mental health problems.” Id. at 12.




                                       -7-
J-S17009-17



      Appellant’s claim fails because the trial court sustained Appellant’s

objections to the detective’s testimony that characterized the Victim as

having “mental problems” and as having “problems;” further, the trial court

sustained Shaheed Carroll’s objection to the detective’s testimony that

declared the Victim was “educationally delayed.”       See N.T. Trial, 10/27/15,

at 34-36.   Indeed, the trial court continuously instructed Detective Ortiz-

Griffin to limit her testimony to “specific behavior” she observed in the

Victim and to refrain from testifying as to anything “medical.” See id. On

appeal, Appellant does not claim that the trial court should have done

anything differently; as such, Appellant’s first claim fails.

      Second, Appellant claims that the trial court erred when it “permitted

Officer Lewis to read a portion of his written statement because it was

improper bolstering and a prior consistent statement.” Appellant’s Brief at

12. Again, Appellant’s claim on appeal fails because the trial court, in fact,

sustained his objection.

      On the night of the robbery, Philadelphia Police Officer Phillip Lewis

encountered Appellant, Shaheed Carroll, and Darnell Woodson and asked the

three to stop; Darnell Woodson stopped for Officer Lewis, while Appellant

and Shaheed Carroll walked away. The three defendants were later arrested

after the Victim arrived on scene and identified the defendants as his

assailants. During Officer Lewis’ direct testimony, Officer Lewis testified as

follows:




                                       -8-
J-S17009-17


       Q: And did you provide a statement to Northeast Detectives
       detailing your account of this incident?

       A: I did.

       Q: Okay.

           [Commonwealth]: If I can have the officer shown what I
           have marked as Commonwealth Exhibit C-11.

           [Trial Court]: C-11.

           (Whereupon,        Exhibit    C-11   was     marked       for
           identification).

           [Court Officer]: C-11 to the witness.

       Q: Officer Lewis, is this your statement that you made that
       night?

       A: It is, yes.

       Q: And did you sign the statement?

       A: I did.

       Q: Officer Lewis, can you please read the question and
       answer portion of your statement?

           [Appellant’s Attorney]: I’m going to object.

           [Shaheed Carroll’s Attorney]: I’ll object to that as well.

           [Darnell Woodson’s Attorney]: I         object,   yes. He’s
           already testified to the facts,         Judge.      It just
           corroborates.

           [Shaheed Carroll’s Attorney]: It’s improper bolstering.

           [Trial Court]: For him to just read it, is there something
           specific?

           [Commonwealth]: I mean, I can lead him towards - - I
           mean, he testified generally. There’s more specific

                                        -9-
J-S17009-17


          details with the part of the statement. I mean, I can
          refer him specifically to that portion if it’s easier.

          [Trial Court]: Was there something, you know - - is he
          reading because he can’t remember? I mean, what’s
          the basis?

          [Commonwealth]: The basis of him reading would be,
          number one, he’s indicated the officers that responded
          to him. I think at this point, he said the police officers
          responded to him. Then he also detailed the other items
          that were taken from the specific defendant.           He
          couldn’t remember what specific defendant.

          [Trial Court]: Well, if there are specific things, it’s
          different.

          [Darnell Woodson’s Attorney]: She can refresh his
          recollection.

          [Appellant’s Attorney]: Right.

          [Trial Court]: There’s a lot of detail.

          [Commonwealth]: Well, I mean, I can have him start
          with - -

       Q: Do you see the first question that you have?

       A: The first one?

          [Appellant’s Attorney]: Judge, here’s my - -

          [Darnell Woodson’s Attorney]: I - -

          [Appellant’s Attorney]: I want to state my grounds.
          There’s a procedure to be followed. Let’s say this is
          trying to be brought in to refresh [a] recollection, all
          right? Such as, well, you have to establish certain
          things including but not limited to that the person
          doesn’t remember. Just to say start reading - - I mean,
          he’s never indicated that there’s been any problem with
          --


                                    - 10 -
J-S17009-17


            [Trial Court]: Well, he did refer to his notes before.

            [Appellant’s Attorney]: Okay.

            [Commonwealth]: And he did say he didn’t remember
            specifically.

            [Trial Court]: Well, specifically, what things? I mean, he
            . . . [w]hat things[?] - - I think you need to establish
            what he can’t remember and what he’s - - what detail
            he’s looking at.

            [Commonwealth]: Okay.

        Q: Let me ask you this. I mean, you’ve already testified to
        it but they’re not clear. So let me ask you again. You
        indicated that officers stopped . . . two of the [defendants]?

        A: Two of the [defendants], yes.

                                      ...

        Q: Okay. . . . And then you also indicated that . . . the
        items were recovered from one of the defendants, but you
        couldn’t remember which one?

        A: That’s correct.

        Q: Okay. Would it help to refresh your recollection to look
        at your statement to see who, if anybody, had the items on
        him?

        A: Just give me a minute, please.

        Q: No problem.

        A: Yes. So that defendant was [Appellant].

        Q: It was [Appellant]?

        A: Yes.

N.T. Trial, 10/27/15, at 86-90.



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J-S17009-17



      Appellant did not object further.

      Therefore, in this case, the trial court sustained Appellant’s original

objection to Officer Lewis “read[ing] a portion of his written statement.”

Appellant’s Brief at 12.      Further, in the ensuing argument, Appellant

acknowledged that Officer Lewis would be permitted to read the statement if

a foundation were laid, establishing that Officer Lewis could not remember a

detail and that the written statement would refresh his recollection. Id. at

87-88 and 89. The Commonwealth then followed the correct procedure and,

when Officer Lewis later read from his written statement, Appellant did not

object. Id. at 89-90. As such, Appellant’s claim of error fails.

      Third, Appellant claims that the evidence was insufficient to support

his conviction for intimidation of a witness or victim. This claim fails.

      We review Appellant’s sufficiency of the evidence claim under the

following standard:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at
        trial in the light most favorable to the verdict winner, there
        is sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt.             In
        applying the above test, we may not weigh the evidence
        and substitute our judgment for [that of] the fact-finder. In
        addition, we note that the facts and circumstances
        established by the Commonwealth need not preclude every
        possibility of innocence.        Any doubts regarding a
        defendant’s guilt may be resolved by the fact-finder unless
        the evidence is so weak and inconclusive that as a matter of
        law no probability of fact may be drawn from the combined
        circumstances. The Commonwealth may sustain its burden
        of proving every element of the crime beyond a reasonable
        doubt by means of wholly circumstantial evidence.

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J-S17009-17


        Moreover, in applying the above test, the entire record must
        be evaluated and all evidence actually received must be
        considered. Finally, the trier of fact while passing upon the
        credibility of witnesses and the weight of the evidence
        produced, is free to believe all, part or none of the
        evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en

banc) (internal quotations and citations omitted). Further, as our Supreme

Court has held, a claim that “the testimony presented to the [fact-finder]

was so unreliable and contradictory that the[] verdict could only have been

arrived at through speculation and conjecture . . . [is] a challenge to the

sufficiency [of the evidence].” Commonwealth v. Brown, 52 A.3d 1139,

1156 n.18 (Pa. 2012).

     Appellant was convicted of the crime of “intimidation of witnesses or

victims” under 18 Pa.C.S.A. § 4952(a)(1). N.T. Trial, 10/28/15, at 142-143;

Commonwealth’s Information, 12/2/14, at 2. This subsection reads:

        A person commits an offense if, with the intent to or with
        the knowledge that his conduct will obstruct, impede,
        impair, prevent or interfere with the administration of
        criminal justice, he intimidates or attempts to intimidate
        any witness or victim to: (1) Refrain from informing or
        reporting to any law enforcement officer, prosecuting official
        or judge concerning any information, document or thing
        relating to the commission of a crime.

18 Pa.C.S.A. § 4952(a)(1); see also N.T. Trial, 10/28/15, at 142-143;

Commonwealth’s Information, 12/2/14, at 2.

     Within Appellant’s brief to this Court, Appellant does not claim that the

evidence was insufficient to support his conviction under Section 4952(a)(1).

Instead, Appellant claims that the evidence was insufficient to support his


                                    - 13 -
J-S17009-17



conviction under 18 Pa.C.S.A. § 4952(a)(3) because “[t]here was no

evidence that [Appellant] or any co-defendant attacked [the Victim] with the

intent to prevent him from testifying in court or providing information to law

enforcement.”      Appellant’s   Brief   at   13-14;     see   also   18    Pa.C.S.A.

§ 4952(a)(3) (“A person commits an offense if, with the intent to or with the

knowledge that his conduct will obstruct, impede, impair, prevent or

interfere with the administration of criminal justice, he intimidates or

attempts to intimidate any witness or victim to: . . . (3) Withhold any

testimony, information, document or thing relating to the commission of a

crime from any law enforcement officer, prosecuting official or judge”).

      Given that Appellant was convicted of “intimidation of witnesses or

victims” under 18 Pa.C.S.A. § 4952(a)(1), Appellant’s claim on appeal

immediately fails.     Moreover, and regardless, the evidence was clearly

sufficient to support Appellant’s conviction under Section 4952(a)(1), as the

Victim testified that Appellant and the co-defendants beat and robbed him

for “snitching” about a prior time that the Victim was robbed.             N.T. Trial,

10/26/15, at 108-109.       This testimony is clearly sufficient to support a

finding that Appellant “intimidate[d] or attempt[ed] to intimidate [the

Victim]” from “[r]efrain[ing] from informing or reporting to any law

enforcement     officer,   prosecuting   official   or    judge   concerning      any

information, document or thing relating to the commission of” both the

prior crime and the current crime.                  18 Pa.C.S.A. § 4952(a)(1).

Appellant’s claim on appeal fails.

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      Finally, Appellant claims that the trial court erred in its response to

Jury Question Number Two. This claim is waived.

      During jury deliberation, the jury submitted the following question to

the trial court: “Can you tell us what objects were recovered from which of

the defendants from the September incident?”      N.T. Trial, 10/29/15, at 4.

The trial court responded to the question by permitting the jury to have

possession of the Commonwealth’s Exhibit C-12 – which had been admitted

into evidence at trial.   The exhibit is not included in the certified record.

However, from the trial testimony, the exhibit was apparently a property

receipt that was prepared by Philadelphia Police Officer Christopher Lewis.

N.T. Trial, 10/27/15, at 113. The only evidence in the certified record that

Appellant points us to regarding Exhibit C-12 is at pages 112 to 114 of the

October 27, 2015 trial transcript. The testimony was as follows:

        Q: Okay. And once [the Victim] positively identified the
        three defendants at the bar of the Court, did you, in fact,
        then search the males?

        A: That is correct.

        Q: And can you tell the ladies and gentlemen of the jury
        what happened when you searched the males?

        A: From [Appellant], we recovered - - well, we took out a
        charger, a headset, a transpass, a cell phone, and an iPhone
        and one [$5.00] bill, at which time [the Victim] IDed as
        being the stuff that was stolen from him.

                                      ...

        Q: Okay.    And what, if anything, did you do with those
        items?

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J-S17009-17



       A: I - - after the defendant was arrested, I placed the
       property receipt - - I put it on a property receipt. I’m sorry.
       I have to look at my notes. The property receipt was
       3165281.

       Q: Now, at that point, were all three defendants arrested?

       A: That’s correct.

       Q: Okay.

          [Commonwealth]: If I can show Officer Lewis what has
          been previously marked Commonwealth Exhibit C-12.

          [Trial Court]: C-12.

          (Whereupon,        Exhibit      C-12   was   marked      for
          identification).

          [Court Officer]: C-12 to the witness.

       A: Yes, ma’am. This is the property receipt.

       Q: And, Officer Lewis, please explain to the ladies and
       gentlemen of the jury what exactly a property receipt is and
       why you would [] create a property receipt.

       A: A property receipt is when police collect evidence, we
       have to put it on some type of paper so a trace - - a paper
       trace. If I recover anything - - if something gets stolen
       from you and the police recover it, we have some way of
       showing that we did recover the items. At times, we would
       give them back or it would be held for evidence. So a
       property receipt is . . . an inventory of what was taken from
       the complainant and what we recover sometimes from a
       defendant.

       Q: And, Officer Lewis, what, if anything did you do with the
       property that you placed on a property receipt?

       A: After we placed it on the property receipt, I got the
       defendant to sign that everything I took from him was on


                                       - 16 -
J-S17009-17


        this property receipt, which he did, and then we returned it
        to the owner.

                                     ...

        Q: Okay. And do you see [the Victim’s] signature on this
        property receipt?

        A: Yes.

        Q: Okay.

        A: He signed it saying that that was his property.

N.T. Trial, 10/27/15, at 112-114.

      Within Appellant’s brief to this Court, Appellant claims that the trial

court should not have permitted the jury to have possession of Exhibit C-12

and should have simply responded to the jury’s question by “instruct[ing

them] that their memory of the evidence controls and they should rely on

[that] in making their determination.”       Appellant’s Brief at 15.   Appellant

claims that “[t]he prejudice [that he] suffered was that it was his name

listed at the top of property receipt #3165281 under the caption ‘From

Whom Taken.’” Id.

      Yet, since Appellant has failed to include Exhibit C-12 in the certified

record and since the trial testimony does not give this Court a clear

understanding of the exhibit, this Court cannot properly analyze Appellant’s

claim of error. Therefore, Appellant’s final claim on appeal is waived. Smith

v. Smith, 637 A.2d 622, 623-624 (Pa. Super. 1993) (“First, it is black letter

law in this jurisdiction that an appellate court cannot consider anything

which is not a part of the record in the case. Second, it is the responsibility


                                    - 17 -
J-S17009-17



of the Appellant to supply this Court with a complete record for purposes of

review.   Third, although no reproduced record has been offered by the

Appellant to remedy the deficiency in the official record, we would note that

reproduction of the record is not an acceptable substitute for the original,

certified record.   Fourth, a failure by an Appellant to [e]nsure that the

original record certified for appeal contains sufficient information to conduct

a proper review constitutes a waiver of the issue(s) sought to be examined”)

(internal citations and italics omitted).

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




                                      - 18 -
