J-S40027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RASHEEN MCDONALD,                          :
                                               :
                      Appellant                :   No. 2585 EDA 2016

              Appeal from the Judgment of Sentence May 26, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003215-2015


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 05, 2017

        Appellant Rasheen McDonald appeals from the Judgment of Sentence

entered by the Court of Common Pleas of Delaware County on May 26,

2016, after a jury convicted him of, inter alia, Kidnapping, Robbery, and

Conspiracy.      Appellant asserts a Batson1 violation and challenges the

sentencing court’s application of the deadly weapons enhancement.         After

careful review, we affirm.

        The relevant facts, as gleaned from the trial court’s Pa.R.A.P. 1925(a)

Opinion, are as follows. On February 7, 2015, two masked men attempted

____________________________________________


*   Former Justice specially assigned to the Superior Court.
1 Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the use of
peremptory challenges to purposefully remove prospective jurors on the
basis of their race violates the equal protection clause of the United States
Constitution).
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to pull Donald Crews from his car after he parked near Grays Street in

Chester. Mr. Crews fought them off and ran away, but when he fell, the two

men grabbed him, hit him over the head with a gun, and brought him back

to the car. They forced Crews into the back seat at gunpoint and bound his

hands in front of him with zip ties. Crews recognized Appellant’s voice as

Appellant repeatedly asked, “Where’s the money?”

      The men then drove Crews to an alleyway in Chester, where Appellant

took a necklace and cash from Crews.        Appellant repeatedly asked Crews

“Where’s the money?” in addition to “Who is up at 11th Street?” and “Who is

up at Girard Avenue?” When Crews did not answer, Appellant opened the

rear passenger door and, at Appellant’s direction, the other individual shot

Crews in the leg. Appellant then grabbed Crews by the legs and forced him

into the trunk of the vehicle. Appellant’s mask came off at that time, and

Crews clearly saw Appellant’s face.

      Crews kicked in the back seat of the car and escaped. However, as he

fled, a third individual grabbed Crews and put him back into the back seat of

the car. Appellant was no longer with them. Crews jumped from the car as

it was traveling toward 11th Street, and ran to a house for help.

      When police arrived, Crews told the responding officer that Appellant

and others had kidnapped and shot him, and then taken his car. The City of

Chester Police Department investigated and arrested Appellant on February

17, 2015.




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       A jury trial proceeded on March 22 and 23, 2016, after which the jury

found Appellant guilty of Kidnapping, Robbery, Aggravated Assault, and

Conspiracy.2,3 The court sentenced Appellant to an aggregate term of 22.3

to 44.6 years’ incarceration followed by 11.5 years’ probation.

       After the denial of his Post-Sentence Motion, Appellant timely

appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following issues for our review:

       1. Did the lower court err in finding that the Deadly Weapon
          Enhancement is not illegal pursuant to Alleyne v. United
          States?

       2. Did the court err in denying that there was a violation
          pursuant to Batson v. Kentucky, especially in light of the
          missing transcript from jury selection?

Appellant’s Brief at 1.

       In his first issue, Appellant asserts that the sentencing court erred in

applying the deadly weapon enhancement provision to his sentence pursuant

to Alleyne.4 No relief is due.



____________________________________________


2 18 Pa.C.S. § 2901(a)(3); 18 Pa.C.S. §3701(a)(1)(i); and 18 Pa.C.S. §
2702(a), respectively.

3The jury also found Appellant guilty of Robbery of a Motor Vehicle, and
Conspiracy to Robbery of a Motor Vehicle.

4 Alleyne v. U.S., 133 S.Ct. 2151 (U.S. 2013) (holding that any fact that
increases the mandatory minimum sentence is an element of the crime and
must be submitted to the jury).



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          The Pennsylvania Sentencing Guidelines provide that when a court

determines that a firearm was used during the commission of a crime, it

“shall consider” the application of a sentencing enhancement provided in the

DWE/Possessed Matrix (§ 303.17(a)).               204 Pa. Code § 303.10(a)(1)(i). 5

This Court has observed that an Alleyne challenge is inapplicable to the use

of the deadly weapon enhancement. Commonwealth v. Buterbaugh, 91

A.3d      1247,   1270    n.10    (Pa.   Super.    2014)   (en   banc).6   See   also

Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015), affirmed in

part, reversed in part, vacated on other grounds, 149 A.3d 29 (Pa. 2015)

(explaining that, unlike minimum sentences imposed pursuant to statute,

sentencing guidelines are only advisory and, thus, enhancements “do not

bind a trial court to any particular sentencing floor, nor do they compel a

trial court in any given case to impose a sentence higher than the court

believes is warranted.        They require only that a court consider a higher

range of possible minimum sentences.”).

          Because the deadly weapons enhancement is part of the sentencing

guidelines, Alleyne does not apply.            Accordingly, this claim warrants no

relief.
____________________________________________


5Crimes in which a firearm is an element of the crime are excluded from the
deadly weapons enhancement guideline. See 204 Pa. Code § 303.10(a)(3).

6 As the Buterbaugh Court acknowledged, neither party in that case
challenged the deadly weapons sentencing enhancement as a violation of
Alleyne.



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      In his second issue, Appellant asserts that the trial court erred in

denying Appellant’s Batson objection made during voir dire and again in his

Post-Sentence Motion.     Additionally, Appellant contends that he cannot

address the Batson claim he raises on appeal because there is no record of

the sidebar conferences during jury selection.     In light of this, Appellant

requests that this Court remand the case to the trial court to create a

“Statement in Absence of Transcript” under Pa.R.A.P. 1923 or an “Agreed

Statement of Record” under Pa.R.A.P. 1924. Appellant’s Brief at 10, 11-13.

      It is well settled that the appellant bears the burden of producing a

complete record for, and prior to, appellate review.      Commonwealth v.

Dunkle, 932 A.2d 992, 996 (Pa. Super. 2007). See also Commonwealth

v. Michuck, 686 A.2d 403, 408 (Pa. Super. 1996) (discussing an appellant’s

responsibility to include relevant portions of the record for appellate review,

including voir dire excerpts, by preparing a statement in absence of record

or an agreed statement of record to supplement the record).        If relevant

portions of the notes of testimony are missing, “it becomes a circumstance

the appellant or his counsel needs to respond to by, for example, ordering

notes counsel failed to order earlier; or seeking an order of court to have

ordered notes promptly transcribed, or otherwise made available; or, where

notes cannot be secured, to take steps to have an equivalent picture of the

proceeding generated. See Pa.R.A.P. 1911(a); Pa.R.A.P. 1923 (statement in

the absence of transcript); Pa.R.A.P. 1924 (agreed upon statement of the


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record).” Commonwealth v. Lesko, 15 A.3d 345, 411 (Pa. 2011). It is

not the responsibility of this Court to obtain a copy of the trial transcript for

the purposes of reviewing an appellant’s claims.           Commonwealth v.

Osellanie, 597 A.2d 130, 132 (Pa. Super. 1991).

      In Appellant’s Brief, counsel fails to describe what, if any, efforts were

made to prepare a statement in lieu of a transcript. He merely asserts that

because he was not counsel of record at the trial phase, he “is therefore

unable to circulate such a statement.” Appellant’s Brief at 12. We find this

assertion to be somewhat feeble. This Court has explained, “Rule 1923 does

not require appellate trial counsel to have first hand, direct knowledge of

what transpired at trial.” Commonwealth v. Burrows, 550 A.2d 787, 789

(Pa. Super. 1988). “We reject any suggestion that a statement cannot be

prepared where there is no showing of any effort whatsoever to review the

existing record, consult with trial defense counsel, and consult with the

defendant.” Id. Accordingly, we decline counsel’s invitation to remand for

the preparation of a statement he was obligated to obtain prior to seeking

this Court’s review.

      Without a statement in lieu of a transcript, which was Appellant’s

responsibility to provide, we are unable to conduct a proper review and

analysis of Appellant’s Batson challenge.       Accordingly, we conclude this




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issue is waived.7      See Osellanie, supra at 132 (concluding that, in the

absence of a trial transcript or statement in lieu of a transcript, this Court is

unable to conduct proper appellate review and waiver is appropriate).

       Judgment of Sentence Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2017




____________________________________________


7 We further note that in the Argument section of his Brief, Appellant fails to
identify with specificity the trial court’s error, the juror who was struck, the
circumstances of the strike, the other strikes, and the composition of the
jury panel or the trial jury. Appellant also fails to apply the relevant legal
principles to the facts. Appellant’s failure to develop this issue prevents this
Court from conducting meaningful appellate review, and provides an
additional reason for this Court to conclude that this issue is waived. See
Commonwealth v. B.D.G., 959 A.2d 362, 371-372 (stating that failure to
develop an issue in appellate brief results in waiver of that issue); see also
Pa.R.A.P. 2119.



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