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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
JUAN RODRIGUEZ,                          :          No. 904 EDA 2019
                                         :
                        Appellant        :


       Appeal from the Judgment of Sentence Entered May 25, 2017,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0009516-2015


BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   Filed: July 30, 2020

      Juan Rodriquez appeals nunc pro tunc from the May 25, 2017

judgment of sentence entered in the Court of Common Pleas of Philadelphia,

following a bench trial where appellant was convicted of persons not to

possess firearms, criminal conspiracy (possession with intent to deliver),

possessing instruments of crime, possession with intent to deliver a controlled

substance, and possession of a controlled substance.1 Appellant received an

aggregate sentence of six to twelve years’ incarceration. After careful review

we dismiss this appeal.




118 Pa.C.S.A. §§ 6105(a)(1), 903, 907, and 35 P.S. §§ 780-113(a)(30), and
35 P.S. § 780-113(a)(16), respectively.
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        As gleaned from the sentencing transcript2 and the briefs of the parties,

between August 11 and August 13, 2015, police observed appellant participate

in the sale of illegal drugs to a confidential informant at the property located

at 3825 Jasper Street in Philadelphia. (Notes of testimony, 5/25/17 at 9-10;

appellant’s brief3 at 6-7; Commonwealth’s brief at 2-3.) Appellant was also

seen going “in and out of” the residence after the sales were made. (Notes of

testimony, 5/25/17 at 10; appellant’s brief at 7; Commonwealth’s brief at 3.)

Upon executing a search warrant for the house, police recovered illegal

narcotics and a loaded firearm.         (Notes of testimony, 5/25/17 at 10-11;

appellant’s brief at 7; Commonwealth’s brief at 3.)

        On February 6, 2017, appellant was convicted of the above charges, and

on May 25, 2017, sentence was imposed.            Appellant timely appealed. On

July 17, 2017, the trial court ordered appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Appellant

timely complied. A Rule 1925(a) opinion was not filed, as the original trial

judge was no longer a sitting judge. On July 19, 2018, this court dismissed

the appeal due to appellant’s failure to file a brief. See Commonwealth v.

Rodriguez, No. 3795 EDA 2017.




2   No trial transcript has been filed in this case.

3 The pages in appellant’s brief are unnumbered and out of sequence. We
refer to page numbers as if they had been numbered and in the proper
sequence.


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        On August 22, 2018, appellant filed a Post-Conviction Relief Act

(“PCRA”) petition,4 asserting appellate counsel’s failure to file an appellate

brief. On February 26, 2019, the PCRA court reinstated appellant’s appeal

rights nunc pro tunc.           Appellant timely appealed.    He then filed a

Rule 1925(b) statement.5 On June 26, 2019, the trial court notified this court

that it would not be filing a Rule 1925(a) opinion, as it had not been able to

obtain the trial transcript.6

        On June 21, 2019, the trial court ordered the court reporter to file and

submit the transcript of appellant’s bench trial to this court. If the notes of

testimony were unavailable, the court reporter was ordered to file an affidavit

stating that the notes were lost. The record does not reflect that the court

reporter complied with this order.

        On October 4, 2019, this court ordered appellant to prepare a statement

of evidence and proceedings pursuant to Pa.R.A.P. 1923 within 60 days.

Appellant has not complied with this court’s order.




4   42 Pa.C.S.A. §§ 9541-9546.

5 The record does not reflect if or when appellant was ordered to file a
Rule 1925(b) statement.

6We note that only the transcripts from the May 25, 2017 sentencing hearing
and the June 6, 2016 hearing on appellant’s pre-trial motion to quash have
been filed. Appellant has not raised any issues relating to either proceeding.


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        Appellant raises the following issues on appeal:

              I.    DID THE TRIAL COURT ERR WHEN IT
                    DETERMINED THAT THE COMMONWEALTH MET
                    ITS   BURDEN    OF   PROOF  BEYOND   A
                    REASONABLE    DOUBT    THAT  APPELLANT
                    POSSESSED A FIREARM THAT WAS LOCATED
                    INSIDE A HOME, THAT WAS NOT HIS
                    RESIDENCE, ON TOP OF A CHINA CABINET,
                    WRAPPED IN A SHIRT, WHEN IT WAS
                    STIPULATED TO BY THE COMMONWEALTH THAT
                    APPELLANT HIMSELF NEVER WENT IN THE
                    HOUSE THAT DAY?

              II.   DID THE TRIAL COURT ERR WHEN IT
                    DETERMINED THAT THE COMMONWEALTH MET
                    IS BURDEN OF PROOF BEYOND A REASONABLE
                    DOUBT THAT APPELLANT POSSESSED THAT []
                    FIREARM AS AN INSTRUMENT OF CRIME?

Appellant’s brief at 5.

        The issues raised by appellant address the sufficiency and/or weight of

the evidence.7 Appellant has the duty of supplying this court with a record

which    is sufficient    to   permit a   meaningful   appellate   review.   See

Commonwealth v. Steward, 775 A.2d 819, 835 (Pa.Super. 2001) (citation

omitted), appeal denied, 792 A.2d 1253 (Pa. 2001).                 “The burden of

obtaining transcripts from the proceedings falls squarely on the appellant.”

See Commonwealth v. Harvey, 32 A.3d 717 (Pa.Super. 2011), citing to

Pa.R.A.P. 1911(a), appeal denied, 37 A.3d 1194 (Pa. 2012).




7In appellant’s brief, he cites to the scope and standard of review as to both
sufficiency and weight of the evidence.


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      Where    a   transcript   of   trial   proceedings   cannot   be   created,

Pa.R.A.P. 1923 provides:

            If no report of the evidence or proceedings at a
            hearing or trial was made, or if a transcript is
            unavailable, the appellant may prepare a statement
            of the evidence or proceedings from the best available
            means, including his recollection. The statement shall
            be served on the appellee, who may serve objections
            or propose amendments thereto within ten days after
            service. Thereupon the statement and any objections
            or proposed amendments shall be submitted to the
            lower court for settlement and approval and as settled
            and approved shall be included by the clerk of the
            lower court in the record on appeal.

Pa.R.A.P. 1923.    “[F]ailure to ensure that the record provides sufficient

information to conduct a meaningful review constitutes a waiver of the

issue[s] sought to be reviewed.” Commonwealth v. Lopez, 57 A.3d 74, 82

(Pa.Super. 2012) (citation omitted), appeal denied, 62 A.3d 379 (Pa. 2013).

      Here, at footnote 1 of his brief, appellant asserts as follows:

            [i]t should be noted that the notes of testimony from
            the non-jury trial do not exist. Counsel was ordered
            by this Honorable Court to recreate the record for this
            appeal. This was done so by reviewing discovery,
            notes from the preliminary hearing, interviews with
            [a]ppellant and prior counsel.

Appellant’s brief at 6 n.1. However, this is not reflected in appellant’s brief.

Further, we note that the certified record does not reflect any attempt by

appellant to prepare a statement pursuant to Pa.R.A.P. 1923. Thus, we have

nothing by which we may evaluate appellant’s claims. We, therefore, decline




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to review appellant’s issues with an incomplete record and consider them to

be waived. See Commonwealth v. Reed, 971 A.2d 1216, 1219 (Pa. 2009).

     Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/30/20




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