J-S82037-18

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA,

 Appellee

v.

FRANKLIN CUTTINO, 

Appellant

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IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 67 EDA 2018

Appeal from the Judgment of Sentence December 28, 2017

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0003815-2017

BEFORE: LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 12, 2019

Franklin Cuttino (Appellant) appeals from the judgment of sentence of 

four to ten years of incarceration, followed by four years of probation, imposed 

after he pleaded guilty to burglary, conspiracy, and theft by unlawful taking. 

We affirm.

On February 25, 2017, at about 3:00 p.m., Appellant and a coconspirator entered the victim’s garage without permission and stole two 

bicycles valued at nearly $1,000.

1

 The victim’s video surveillance system 

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1 Because Appellant has failed to include the notes of testimony as part of the 

certified record, we glean the facts from the police arrest report and criminal 

complaint.
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recorded Appellant committing the crime. Appellant was apprehended the 

following day.

On October 5, 2017, Appellant entered an open guilty plea to the 

aforementioned crimes.2 On December 28, 2017, Appellant was sentenced to 

concurrent terms of four to ten years of incarceration on the burglary and 

conspiracy convictions, followed by four years of probation on the theft by 

unlawful taking conviction. Appellant did not file post-sentence motions, but 

did file a timely notice of appeal. Appellant complied with Pa.R.A.P. 1925(b). 

On February 20, 2018, the trial court informed this Court that it would not be 

filing an opinion pursuant to Rule 1925(a) because the plea and sentencing 

judge is no longer serving as a judge in the trial court.

On appeal, Appellant raises one claim for our review. He contends that 

his sentence was “arbitrary, excessive, unreasonable, shocking to the 

conscience, and disproportionate to the crimes, in that it violated a 

fundamental norm of an open plea of guilty and an abuse of discretion.” 

Appellant’s Brief at 3 (unnecessary capitalization and internal quotation marks 

omitted). Because this claim implicates the discretionary aspects of 

Appellant’s sentence, we must first determine whether Appellant has invoked 

this Court’s jurisdiction to review the merits of this claim. 

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

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2 A remaining charge of receiving stolen property was nolle prossed.
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must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the following 

four factors: 

(1) whether appellant has filed a timely notice of 

appeal, see Pa.R.A.P. 902 and 903; (2) whether the 

issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence, see

Pa.R.Crim.P. 720; (3) whether appellant’s brief has a 

fatal defect, Pa.R.A.P. 2119(f); and (4) whether there 

is a substantial question that the sentence appealed 

from is not appropriate under the Sentencing Code, 

42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014) 

(some citations omitted). 

Here, Appellant timely filed a notice of appeal. However, our review of 

the record reveals that Appellant did not file a post-sentence motion. See

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (“Objections 

to the discretionary aspects of a sentence are generally waived if they are not 

raised at the sentencing hearing or in a motion to modify the sentence 

imposed.”). Further, this Court’s review has been substantially impeded by 

Appellant’s failure to request and file a transcript of his guilty plea and 

sentencing hearings in compliance with Pa.R.A.P. 1911(a) (“The appellant 

shall request any transcript required under this chapter in the manner and 

make any necessary payment or deposit therefor....”). 

[W]ell-settled Pennsylvania law makes clear an appellate court is 

limited to considering only the materials in the certified record 

when resolving an issue. Where the appellant has not made the 

transcript of the proceedings at issue a part of the certified record, 

we have said:
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With regard to missing transcripts, the Rules of 

Appellate Procedure require an appellant to order and 

pay for any transcript necessary to permit resolution 

of the issues raised on appeal. Pa.R.A.P. 1911(a).... 

When the appellant ... fails to conform to the 

requirements of Rule 1911, any claims that cannot be 

resolved in the absence of the necessary transcript or 

transcripts must be deemed waived for the purpose of 

appellate review.

Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014) (some 

internal citations omitted). There is no indication that Appellant requested the 

transcripts or that they are available. Without the transcripts, we are unable 

to determine whether Appellant preserved the issue at sentencing. See

Griffin, 65 A.3d at 935. Accordingly, Appellant has waived this issue for our 

review, and he is not entitled to relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/12/19