J-S57045-18

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

CLARENCE BURBAGE,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 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-CR0001040-2012 (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 
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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-toten 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.