J-S23012-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

GARY C. HARKINS, :

:

Appellant : No. 628 EDA 2014

Appeal from the PCRA Order February 6, 2014,

Court of Common Pleas, Chester County,

Criminal Division at No(s): CP-15-CR-0001857-2006

and CP-15-CR-0002546-2008

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED MAY 13, 2015

Gary C. Harkins (“Harkins”) appeals from the denial of his motion for 

transcription and production of notes of testimony. We quash. 

In October 2006, Harkins pled guilty to indecent assault and corruption 

of minors1and was sentenced to five years of probation. In March 2009, 

Harkins pled guilty to luring a child into a motor vehicle, corruption of 

minors, resisting arrest and indecent assault of a person less than sixteen 

years old.2 He was sentenced, in relevant part, to eleven and a half to 

twenty-three months of incarceration, followed by eight years of probation. 

In April 2012, Harkins pled guilty to violating multiple parole and 

probationary sentences that he was serving at that time. The trial court 

 

1 18 Pa.C.S.A. §§ 3126(a)(8), 6301(a)(1). 

2 18 Pa.C.S.A. §§ 2910, 6301(a)(1), 5104, 3126(a)(8). 
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resentenced Harkins.3 Harkins did not seek to withdraw his guilty pleas nor 

did he file a direct appeal. 

No further activity occurred until June 18, 2013, when Harkins filed a 

motion seeking transcripts of the guilty plea proceedings that occurred 

following the revocation of his parole and probationary sentences. Motion 

for Transcription and Production of Notes of Testimony, 6/18/13, at 1.4 The 

lower court elected to treat this filing as a petition filed pursuant to the Post 

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”), and entered an 

order granting Harkins leave to proceed in forma pauperis and appointing 

counsel. Trial Court Opinion, 6/27/13.5 Appointed counsel (”Counsel”) filed 

a petition seeking to withdraw pursuant to Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988). On July 31, 2013, the lower court issued notice of its intent 

to dismiss pursuant to Pa.R.Crim.P. 907. Harkins did not file a response to 

this notice. On January 31, 2014, the lower court granted Counsel’s request 

 

3 Although not germane to our disposition, we note that the trial court 

imposed the balance of the maximum sentences on Harkins’ parole 

violations and reinstated the probationary sentences on the probation 

violations. See Trial Court Opinion, 4/16/14, at 3-4. 

4

 Harkins averred that the notes of testimony “are necessary and pertinent 

in the pursuit of [] petition for post-conviction collateral relief” but he did not 

raise any issues or identify what issues he sought to raise in a postconviction relief petition. See Motion for Transcription and Production of 

Notes of Testimony, 6/18/13, at 1-3. 

5 The lower court did not grant or deny Harkins’ request for transcripts in 

this order. 
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and dismissed Harkins’ “petition.” Harkins timely filed a notice of appeal 

and, in response to the lower court’s directive, a statement of matters 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).6 

Presently, Harkins raises two issues for our review:

1. Was [the] plea agreement breached by the 

court[] where [Harkins] had agreed to the 

Commonwealth’s plea offer and the court had 

excepted [sic] the offer and had sentenced 

[Harkins] to an incarcerated term followed by ten 

[] year registration pursuant to Megan’s Law? 

2. Did the court err when it had dismissed [Harkins’] 

PCRA petition[] when it had erroneously 

misapplied the “prisoner mailbox rule” for 

prisoner’s [sic] proceeding pro se? 

Harkins’ Brief at 3. Harkins did not include either of these issues in his 

statement of matters complained of on appeal. See Concise Statement of 

Errors, 3/26/14.7 It is well settled that issues not included in a courtordered statement of matters complained of are waived for purposes of 

appeal. Commonwealth v. Jackson, 10 A.3d 341, 347 n.4 (Pa. Super. 

2010); Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has repeatedly 

reiterated that this is a bright-line rule and that “in order to preserve their 

claims for appellate review, appellants must comply whenever the trial court 

 

6

In the order directing Harkins to file a concise statement of errors 

complained of on appeal, the lower court specifically advised that “[a]ny 

issue not properly included in the [s]tatement shall be deemed waived.” 

Trial Court Order, 3/16/14. 

7

In this statement, Harkins raised only five vague allegations of ineffective 

assistance of counsel. Concise Statements of Errors, 3/26/14, at 1-2. 
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orders them to file a [s]tatement of [m]atters [c]omplained of on [a]ppeal 

pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) 

statement will be deemed waived.” Commonwealth v. Castillo, 888 A.2d 

775, 780 (Pa. 2005); see also Commonwealth v. Hill, 16 A.3d 484, 494 

(Pa. 2011). Here, as the lower court ordered Harkins to file a statement of 

matters complained of on appeal and he failed to include these issues 

therein, we must find that they have been waived. As neither of the issues 

presented in this appeal has been preserved properly, we quash.8

Appeal quashed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/13/2015

 

8 We question the propriety of the lower court’s election to treat Harkins’ 

motion for transcripts as a PCRA petition, as Harkins conspicuously did not 

seek any relief thereby or raise any issues therein; however, Harkins has not 

challenged this classification by the lower court at any point in the court 

below or on appeal.