J-S69031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANTOINE CARTER

                        Appellant                   No. 311 EDA 2014


           Appeal from the PCRA Order entered January 8, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0005989-2007


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY STABILE, J.:                      FILED JANUARY 12, 2015

     Appellant, Antoine Carter, appeals from the January 8, 2014 order of

the Philadelphia County Court of Common Pleas denying his petition

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Upon review, we affirm.

     The trial court summarized the facts and the procedural history of the

case in its Rule 1925(a) opinion, which we incorporate here by reference.

Trial Court Opinion, 4/3/14, 1-2. See also Commonwealth v. Carter, No.

2600 EDA 2008, unpublished memorandum at 1-3 (Pa. Super. filed July 1,

2011). Briefly, the trial court found Appellant guilty of aggravated assault,

robbery, and recklessly endangering another person as of result of Appellant

assaulting the victim over a twelve-hour period because he failed to
J-S69031-14



purchase beer with $10 Appellant had previously given to him.           Appellant

was sentenced, inter alia, to 25 to 50 years’ incarceration.

        On direct appeal, counsel filed a timely Rule 1923 statement because

the trial transcript was not available.1         Counsel also filed a timely Rule

1925(b) statement challenging the sufficiency of the evidence supporting his

convictions. Subsequently, direct appeal counsel filed an Anders2 brief with

this Court along with a petition to withdraw. On July 1, 2011, we affirmed

the judgment of sentence and granted counsel’s petition to withdraw. 3 On

____________________________________________


1
    Rule 1923 reads as follows:

        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.
2
    See Anders v. California, 386 U.S. 738 (1967).
3
  It is worth noting that, Appellant, on direct appeal, challenged the
adequacy of the record based on the absence of the trial transcript. In
response, we noted:

        Following the filing of counsel’s Anders brief on July 2, 2010,
        appellant filed an application to strike his attorney’s brief and
        remand to the Court of Common Pleas to reconstruct the record.
        On August 9, 2010, this [C]ourt denied the motion but ordered
(Footnote Continued Next Page)


                                           -2-
J-S69031-14



December 14, 2011, our Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Carter, 34 A.3d 825 (Pa. 2011).

      On January 27, 2012, Appellant timely filed a PCRA petition. The trial

court appointed counsel, who filed an amended PCRA petition on December

4, 2012, alleging direct appeal counsel was ineffective for not requesting a

new trial in the absence of trial transcript.     The trial court dismissed the

petition, finding direct appeal counsel was not ineffective.       This appeal

followed.

      Appellant argues the trial court erred in not finding direct appeal

counsel ineffective for failing to request a new trial based on the

unavailability of the trial transcript, as opposed to filing a Rule 1923

statement. We disagree.

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination “is supported by the record and free
      of legal error.” Commonwealth v. Rainey, [928 A.2d 215, 223
      (Pa. 2007)] (citations omitted). To be entitled to PCRA relief,
      appellant must establish, by a preponderance of the evidence,
      his conviction or sentence resulted from one or more of the
      enumerated errors in 42 Pa.C.S. § 9543(a)(2) . . . .

                       _______________________
(Footnote Continued)

      appellant’s counsel to provide appellant with transcripts of the
      court proceedings and/or any Pa.R.A.P. 1923 statements, and
      allowed appellant 60 days to file pro se response. Appellant
      failed to file a response.

Carter, 2600 EDA 2008, at 3 n.2. In addition to addressing counsel’s
petition to withdraw, this Court also addressed the sufficiency of the
evidence claims with regard to his convictions. Id. at 4-9. We concluded
the evidence was sufficient to support Appellant’s convictions. Id.



                                            -3-
J-S69031-14


Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

     Here, Appellant argues he is entitled to relief based on direct appeal

counsel’s ineffective assistance.    We review ineffective assistance claims

according to the following standard:

              To prevail on an ineffectiveness claim, appellant
              must establish:

              (1) the underlying claim has arguable merit; (2) no
              reasonable basis existed for counsel’s actions or
              failure to act; and (3) [appellant] suffered prejudice
              as a result of counsel’s error such that there is a
              reasonable probability that the result of the
              proceeding would have been different absent such
              error.

     Commonwealth v. Lesko, [15 A.3d 345, 373-74 (Pa. 2011)]
     (citing Commonwealth v. Pierce, [527 A.2d 973, 975 (Pa.
     1987)]). Failure to prove any prong of this test will defeat an
     ineffectiveness claim.   Commonwealth v. Basemore, [744
     A.2d 717, 738 n.23 (Pa. 2000)] (citation omitted). “[I]f a claim
     fails under any necessary element of the Strickland [v.
     Washington, 466 U.S. 668 (1984)], test, the court may
     proceed to that element first.”       Lesko, at 374 (citations
     omitted). When an appellant fails to meaningfully discuss each
     of the three ineffectiveness prongs, “he is not entitled to relief,
     and we are constrained to find such claims waived for lack of
     development.” Commonwealth v. Steele, 961 A.2d 786, 797
     (Pa. 2008); see also Commonwealth v. Walter, 966 A.2d
     560, 566 (Pa. 2009) (citation omitted).

Id. at 804.

     Regarding the issue of the unavailability of trial transcript,

     [t]he U.S. Supreme Court has recognized that adequate and
     effective appellate review is impossible without a trial transcript
     or adequate substitute and has held that the States must
     provide trial records to indigent inmates.      See Bounds v.
     Smith, 430 U.S. 817 [] (1977) (citing Griffin v. Illinois, 351
     U.S. 12 [] (1956)).       [Our Supreme Court] has similarly

                                       -4-
J-S69031-14


      concluded that a criminal defendant is entitled to “a full
      transcript or other equivalent picture of the trial proceedings” in
      order    to    engage     in   meaningful     appellate     review.
      [Commonwealth v. Marshall, 812 A.2d 539, 551 (Pa. 2002)]
      (quoting Commonwealth v. Shields, [383 A.2d 844, 846 (Pa.
      1978)). However, in order to “establish entitlement to relief
      based on the incompleteness of the trial record, [appellant] must
      first make some potentially meritorious challenge which cannot
      be adequately reviewed due to the deficiency in the transcript.”
      Id.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1149 (Pa. 2012).

      Appellant baldy asserts that the Rule 1923 statement was inadequate

because: (i) it provided extremely short summaries of complainant’s

testimony, provided little other information about the trial, and failed to

provide the names of the testifying officers, and (ii) “did not detail the cross-

examination of the complainant and the inconsistent statements he made at

trial.” Appellant’s Brief at 7. Appellant concludes that “[a] 1923 statement

that does not even contain the names of the witnesses is not ‘equivalent

picture of the trial proceedings.’” Id. (quoting Shields).

      Appellant miscomprehends the import of Rule 1923 and Shields. In

Appellant’s view, in essence, anything less than the transcript is insufficient

for purposes of appellate review.     Neither Rule 1923, nor Shields or any

other authority supports such interpretation.

      Even if we were to agree that failure to mention the witnesses by

name affected Appellant’s entitlement to “a full transcript or other equivalent

picture of the trial proceedings,” Shields, 383 A.2d at 846, Appellant fails to

recognize that to establish entitlement to relief based on the incompleteness

                                      -5-
J-S69031-14


of the record, Appellant “must first make some potentially meritorious

challenge which cannot be adequately reviewed due to the deficiency in the

transcript.”   Id.   Appellant identifies as potentially meritorious challenges

the sufficiency of the evidence to support his convictions, and the credibility

of victim.     These claims, however, were adequately presented to and

addressed by this Court on direct appeal.      In fact, in addition to denying

Appellant’s sufficiency of the evidence claims on its merits, this Court denied

Appellant’s application to remand the matter to the trial court to reconstruct

the record. Nonetheless, we granted Appellant the opportunity to address

any deficiency in the record, but Appellant failed to do so. See Carter, No.

2600 EDA 2008, at 3 n.2.

      With regard to the credibility of victim, Appellant fails to recognize that

this Court does not make credibility determinations, nor can we substitute

our judgment with that of the trial court.     See, e.g., Commonwealth v.

Emler, 903 A.2d 1273, 1277 (Pa. Super. 2006).           Accordingly, this Court

could not, and would have not, reversed the trial court based on our

assessment of victim’s credibility. See Carter, No. 2600 EDA 2008, at 5.

      In light of the foregoing, we find Appellant failed to specify any

potential meritorious claim that could not be developed or reviewed because

the trial transcript was not available. Accordingly, we conclude Appellant’s




                                      -6-
J-S69031-14


claim that direct appeal counsel was ineffective fails because the underlying

claim has no arguable merit.4

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2015




____________________________________________


4
  Because we conclude Appellant’s claim does not have arguable merit, we
need not address the other two prongs of standard for ineffective assistance
claims. Basemore, 744 A.2d at 738 n.23 (Pa. 2000).



                                           -7-
