J-S57045-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  Appellee                 :
          v.                               :
                                           :
CLARENCE BURBAGE,                          :
                                           :
                  Appellant                :   No. 3692 EDA 2017

                  Appeal from the PCRA Order November 9, 2017
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0001040-2012
                                           CP-51-CR-0001045-2012

BEFORE:        PANELLA, J., PLATT, J.* and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED DECEMBER 14, 2018

     Clarence Burbage (Appellant) appeals from the November 9, 2017

order, which dismissed his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     We provide the following background.        On May 22, 2011, Appellant

participated in the shooting of Danny Williams in his left buttocks in an

attempt to kill him.          An arrest warrant was issued for Appellant.

Subsequently, on May 27, 2011, Appellant shot Williams eight times, and

Williams was killed.    Appellant was charged at docket number CP-51-CR-

0001040-2012 (docket 1040) with both attempted murder and robbery, and

at docket number CP-51-CR-0001045-2012 (docket 1045) with first-degree

murder. A consolidated jury trial was held on May 31, 2013, and Appellant

was found guilty of numerous charges at both docket numbers. Appellant


*Retired Senior Judge assigned to the Superior Court.
J-S57045-18


was sentenced to life in prison without parole (LWOP) for the first-degree

murder conviction. He was also sentenced to a concurrent term of five-to-

ten years of incarceration for the robbery conviction. No further penalty was

imposed on the remaining charges.            This Court affirmed Appellant’s

judgment of sentence on August 21, 2015, and our Supreme Court denied

Appellant’s petition for allowance of appeal on April 5, 2016. See

Commonwealth v. Burbage, 131 A.3d 98 (Pa. Super. 2015), appeal

denied, 136 A.3d 978 (Pa. 2016).

      On November 8, 2016, Appellant timely filed a pro se PCRA petition at

both docket numbers.1 Although it is not clear from the record when counsel

was appointed, at some point in 2017, Attorney James A. Lammendola was

appointed   to   represent   Appellant.     On   October    2,   2017,   Attorney

Lammendola filed a no-merit letter and petition to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).2 On October 5, 2017,




1 In that petition, Appellant asserted that trial counsel was ineffective for not
bringing forth information that Appellant was unarmed at the second
incident until Williams reached for a weapon; that trial counsel was
ineffective for not explaining that “intent is part of the test for [first-]degree
murder;” that trial counsel was ineffective for failing to explore “included
lesser offenses;” and that defense counsel was too inexperienced to handle
this case. See PCRA Petition, 11/8/2016, at 3-4.

2 Although both docket numbers are listed on the no-merit letter, it was filed
only at docket 1040. In this filing, counsel set forth the aforementioned
issues raised in Appellant’s pro se PCRA petition. He also considered the


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the PCRA court filed notice of its intent to dismiss Appellant’s PCRA petition

pursuant to Pa.R.Crim.P. 907.3 On October 19, 2017, Attorney Lauren A.

Wimmer entered an appearance at both dockets. On November 9, 2017, the

PCRA court dismissed Appellant’s PCRA petition by entry of separate orders

at each docket number.       On November 16, 2017, Appellant, through

Attorney Wimmer, filed a single notice of appeal.4 On November 9, 2017,

the PCRA court authored an opinion, which listed both dockets in its

caption.5

      Appellant has raised the following issues on appeal.6




issue of whether trial counsel was ineffective for not challenging the LWOP
sentence. Turner/Finley Letter, 10/2/2017, at 8.
3 That notice was filed only at docket 1045.


4  The appeal was filed at docket 1045, but listed both docket numbers on the
filing.

5 That opinion was filed on November 9, 2017, at docket 1045 and on
November 16, 2017, at docket 1040. The PCRA court did not order a
Pa.R.A.P. 1925(b) statement, and none was filed.

6 On February 21, 2018, this Court issued a rule to show cause to Appellant
as to why the appeal should not be quashed for failure to file separate
notices of appeal at each docket number. Appellant timely filed a response,
arguing we should not quash this appeal because the notice of appeal listed
both docket numbers. Response, 2/23/2018.

      The Official Note to Pennsylvania Rule of Appellate Procedure 341(a)
provides that “[w]here … one or more orders resolves issues arising on more
than one docket … separate notices of appeal must be filed.” On June 1,
2018, in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our
Supreme Court acknowledged that this rule has been applied inconsistently
in the past. Thus, it held that for appeals filed after Walker, “when a single


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     I.     Whether [Attorney Lammendola] was ineffective for failing
            to raise in an amended PCRA petition that trial counsel was
            ineffective for failing to request a justification charge.

     II.    Whether [Attorney Lammendola] was ineffective for failing
            to raise in an amended PCRA petition that appellate
            counsel was ineffective for failing to argue on direct appeal
            that the trial court erred in admitting, over trial counsel’s
            objection, Commonwealth witness Mike/Jerry Holloman’s
            statement, “Murder killed Danny.”

     III.   Whether [Attorney Lammendola] was ineffective for failing
            to raise in an amended PCRA petition that trial counsel was
            ineffective for failing to request a jury charge regarding
            prior consistent statements.

     IV.    Whether the PCRA court erred in denying Appellant’s
            request for an extension of time to file an amended PCRA
            petition.

Appellant’s Brief at 3-4 (answers omitted).

     Instantly, Appellant’s first three claims allege that prior PCRA counsel,

Attorney Lammendola, was ineffective in his representation of Appellant. It

is well-settled that “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Moreover,

issues related to the ineffective assistance of PCRA counsel must be raised in

response to a Turner/Finley letter or in response to a Pa.R.Crim.P. 907



order resolves issues arising on more than one lower court docket, separate
notices of appeal must be filed.” Id. at 977.

      Here, the notice of appeal was filed prior to Walker. Furthermore,
throughout these PCRA proceedings, both the PCRA court and counsel filed
various items listing both docket numbers at only one docket number. This
has clearly created confusion in the certified record and perhaps confusion
for the court, attorneys, and parties. Thus, we decline to quash this appeal.


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notice. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc).

      Here, Appellant claims that when Attorney Wimmer entered her

appearance on October 19, 2017, she filed a response to the Rule 907 notice

asserting the foregoing ineffective-assistance-of-counsel claims. These are

the same three issues she now raises on appeal. See Appellant’s Brief at 6-

7. However, our review of the certified record at both dockets as well as the

certified docket entries does not reveal the existence of her response.

      It is well-settled that “an appellate court is limited to considering only

the   materials   in   the   certified   record   when   resolving   an   issue.”

Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006). “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.” Id. at

7. Thus, the absence of this document renders these issues waived.7




7  It does appear that the PCRA court considered a document filed by
Attorney Wimmer, although it is unclear what was in that document. See
PCRA Court Opinion, 11/9/2017, at 2 n.3 (“On October 19, 2017, Lauren A.
Wimmer, Esq. attempted to enter her appearance and filed a 907 Response
on [Appellant’s] behalf. In the [Rule] 907 Response, counsel demands an
evidentiary hearing on the basis that appellate counsel was ineffective for
failing to object to the admission of an alleged hearsay statement implicating
[Appellant] as the shooter, and alleges that the issues raised in [Appellant’s]
pro se petition were meritorious, and that PCRA counsel was ineffective for
failing to preserve them in the form of an amended petition.”). Thus, based
upon this short explanation, it appears that even if this document were in


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     Finally, Appellant claims the “PCRA court erred in denying counsel’s

request for an extension of time to file an amended PCRA petition.”

Appellant’s Brief at 18. According to Appellant, this issue was raised in her

response to the Rule 907 notice. Id.      However, as discussed supra, that

document is not included in the certified record. Accordingly, this issue is

waived as well.

     Because Appellant has waived all issues on appeal, we affirm the order

of the PCRA court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 12/14/18




the certified record, the issues raised on appeal were not raised in this
response. Thus, they would still be waived.


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