J-S11025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERNEST R. WHOLAVER                                     IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

DAUPHIN COUNTY PRISON, WARDEN
DEROSE, DETECTIVE WALBURN, JANE
AND JOHN DOE

                            Appellant                       No. 888 MDA 2014


                 Appeal from the Order Entered April 16, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-MD-0001682-2013


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                        FILED MAY 01, 2015

       Ernest R. Wholaver appeals from the order entered on April 16, 2014,

in the Court of Common Pleas of Dauphin County, denying his motion for

leave to file an appeal nunc pro tunc.              After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

       By way of background, Wholaver filed a private criminal complaint

alleging that on or about September 2, 2013, while incarcerated in the

Dauphin County Prison, he was severely assaulted by several other inmates

at the direction of prison officials.1         The allegations in the complaint were

____________________________________________


1
  Wholaver believes he was targeted by the other prisoners and prison
officials because he is facing three death sentences, having been convicted
of crimes against his wife and two daughters.
J-S11025-15



subsequently investigated by Dauphin County Deputy District Attorney

Kristyne Sharpe.         She concluded the allegations were false and/or

unprovable and declined prosecution.             Wholaver sought a review of that

decision by the Court of Common Pleas, pursuant to Pa.R.Crim.P. 506(B)(2).

On January 23, 2014, the Honorable John F. Cherry determined the refusal

to prosecute was justified and denied Wholaver relief.          Wholaver did not

appeal the January 23, 2014 order.

        However, on April 2, 2014, Wholaver filed a petition for allowance of

appeal the January 23, 2014 order nunc pro tunc.                Therein, Wholaver

claimed, in part, that he attempted to file the appeal previously, but filed it

with the wrong court.2 On April 16, 2014, the trial court denied Wholaver’s

petition, stating it would “not extend time for a claim which lacks merit.”

See Order, 4/16/2014. Wholaver then filed a timely appeal from the April

16, 2014 order denying him permission to appeal the January 23, 2014

order nunc pro tunc.

        In his appellant’s brief, Wholaver has provided no argument as to why

the trial court erred in denying his petition for nunc pro tunc relief. Rather,

Wholaver has provided arguments substantively addressing issues relevant

to the January 23, 2014 order.             Such issues are not before this Court.

Wholaver also argues Judge Cherry should have recused himself due to his


____________________________________________


2
    Wholaver provided no support for this claim.



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J-S11025-15



bias against him.      Wholaver claims Judge Cherry has ruled against him in

four other cases, thereby demonstrating his inability to rule fairly. However,

Wholaver never raised this issue before the trial court and therefore the

claim has been waived. See Pa.R.A.P. 302(a); Commonwealth v. Tejada,

107 A.3d 788, 797 (Pa. Super. 2015) (citation omitted) (issues not raised in

the lower court are waived and cannot be raised for the first time on

appeal).

       Because Wholaver has presented no argument regarding the order

appealed from, we have nothing to review. Accordingly, we affirm the order

of April 16, 2014, denying Wholaver permission to appeal nunc pro tunc.3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




____________________________________________


3
  The trial court addressed Wholaver’s claims in its original memorandum
opinion attached to the January 23, 2014 order. We have reviewed the
entire record of this matter and are in agreement with the trial court that
Wholaver would not be entitled to relief even if we addressed his claims
regarding the January 23, 2014 order.



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