J-S11012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

OMAR POWELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1749 EDA 2018

Appeal from the Order May 29, 2018

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-CR-0002378-2006

BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED JULY 1, 2019

Appellant, Omar Powell, appeals the May 29, 2018 order denying his 

request for transcripts. We affirm.

The trial court summarized the factual and procedural history of this 

case in its opinion pursuant to Pa.R.A.P. 1925(a), as follows:

[Appellant] has filed this appeal from the denial of his pro 

se “Request for Transcripts.” It is alleged that [Appellant] was 

“deprived...of his right to an effective appeal,” and “deprived...of 

a meaningful review of the record requested...” as a result of the 

court denying his motion.1 These claims are unfounded.

1 See Concise Statement.

[Appellant] was found guilty by jury of Murder of the First 

Degree on March 29, 2007. This conviction resulted from the 

murder of Christine Kennedy, which occurred on March 10, 1997. 

Thereafter, [Appellant] was sentenced to life imprisonment on 

April 17, 2007. Since that date, [Appellant] has had his Murder 

of the First Degree conviction examined by the Superior Court at 

least six (6) times, and he has not been entitled to any relief.2 

Currently, no matters are pending with this [c]ourt.
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2 Commonwealth v. Omar Powell, 2285 EDA 2007 

(Pa.Super. July 14, 2008); Commonwealth v. Omar 

Powell, 2083 EDA 2010 (Pa.Super. August 22, 2011); 

Commonwealth v. Omar Powell, 3199 EDA 2012 

(Pa.Super. June 19, 2013); Commonwealth v. Omar 

Powell, 1317 EDA 2014 (Pa.Super. December 1, 

2014); Commonwealth v. Omar Powell, 1364 EDA 

2017 (Pa. Super. February 12, 2018); Commonwealth 

v. Omar Powell, 1799 EDA 2017 (Pa. Super. February 

22, 2018).

Previously, counsel was appointed to represent [Appellant] 

both at trial and in Post Conviction Relief Act (hereinafter PCRA) 

proceedings. Most recently, on September 12, 2016, Attorney 

Matthew Rapa was appointed to represent [Appellant] in regards 

to his fourth PCRA petition. Counsel’s independent inquiry 

revealed no basis for relief, and he filed a Motion to Withdraw and 

a Finley3 no-merit letter indicating the same. This [c]ourt entered 

an order denying the PCRA petition, and [Appellant] appealed. 

The Superior Court affirmed the denial of [Appellant’s] fourth 

PCRA petition on February 22, 2018.

3 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988).

On May 8, 2018, [Appellant] attempted to revive his case 

yet again by filing a Request for Transcripts, with a supporting 

affidavit alleging indigent status and requesting the cost of the 

transcripts be waived. In response, this [c]ourt issued an order 

denying the request for transcripts on May 29, 2018, emphasizing 

that [Appellant] had no matters pending for which transcripts 

would be required, and that all the materials he requested had 

previously been provided. [Appellant] filed a Notice of Appeal 

challenging that order on June 13, 2018, and he was directed to 

comply with Pa.R.A.P. 1925(b) on June 14, 2018. On June 29, 

2018, [Appellant] filed a “Concise Statement Pursuant to 

Pa.R.A.P. 1925(b)(1)” (hereinafter Concise Statement), making 

five (5) allegations regarding the denial of his request.

Trial Court Opinion, 7/27/18, at 1-2. 
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Appellant presents the following issues for our review, which we set forth 

verbatim:

Did the Common Pleas Court Fail to Provide Proof that a copy of 

the requested record has in fact been provided to the defendant 

(Not counsel)?

Did the Common Pleas Court deprive defendant of the right to an 

effective appeal by denying him access to the trial transcript, and 

PCRA Hearing Transcript in the past and present?

Did the Common Pleas Court deprive defendant of a meaningful 

review of the record requested insuring that he will be unable to 

avail the perfection of an adelquate appeal of his conviction?

Did the Common Pleas Court error when it fail to provide an 

alternative to obtain the record thedefendant requested?

Did the Common Pleas Court deprive defendant of a meaningful 

review of the requested record insuring that he will never have a 

equal opportunity in litigating any issues fairly in the future, as it 

did in the past, and also preventing him from discovering any 

issues within the record?

Appellant’s Brief at 2-3.

Appellant does not separate the argument portion of his brief into five

distinct sections corresponding to his statement of the questions involved. 

Instead, he presents one undivided discussion, contending that the common 

pleas court erred when it denied him access to transcripts. Appellant’s Brief 

at 4-5. Appellant asserts that “even though trial counsel was provided with a 

copy [counsel] never turned over a copy to [Appellant].” Id. at 4. Appellant 

further argues that:

because he was never provided with a copy of the requested 

transcript by counsel and the court it was impossible for him to 

prepare a meaningful ap[p]eal for the court to review, and that 
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for whatever reason [Appellant] is not at fault for not having 

essential transcripts in his possession.

Id. 

In Commonwealth v. Martin, 705 A.2d 1337 (Pa. Super. 1998), under 

circumstances similar to those presented in the instant case, we affirmed the 

trial court’s denial of such a request for the following reasons:

The resolution of this appeal is governed by this Court’s 

holding in Commonwealth v. Ballem, 482 A.2d 1322 

(Pa.Super.1984). Like the appellant in that case, the instant 

appellant asserts that the requested documents are necessary in 

order for him to pursue relief in post-conviction proceedings. As 

such, the reasoning that was affirmed in Ballem applies directly 

to this matter. That is, despite the validity of the asserted 

necessity for a Post Conviction Relief Act motion,

no such action is currently pending. Consequently, 

the lower court, confronted only with the instant 

petition, was in no position to assess appellant’s 

claims to determine whether they constituted 

compelling reasons warranting a grant of his petition. 

In such a case, and until a proceeding to question the 

record is commenced, we find no abuse of the lower 

court’s discretion in denying appellant’s request.

Id. at 1324.

Martin, 705 A.2d at 1338 (footnotes omitted).

This Court again addressed the issue in Commonwealth v. Crider, 735 

A.2d 730, 733 (Pa. Super. 1999). In Crider, the defendant filed a motion 

seeking, inter alia, a copy of the certified record and the transcripts of his 

guilty plea and sentencing hearings in order to pursue PCRA relief. Id. at 731. 

In upholding the trial court’s denial of Crider’s motion, this Court explained:
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The trial court correctly observed that a court is not required 

to comply with a defendant’s request for transcripts in order to 

pursue relief in a PCRA proceeding where no such action is 

pending. [Martin, 705 A.2d 1337]; Ballem, [482 A.2d 1322]. In 

Martin, this Court rejected the appellant’s argument that the 

documents requested through defendant’s pro se motion were 

necessary in order for the defendant to pursue relief in postconviction proceedings. Martin, 705 A.2d at 1338. We adopted 

the reasoning in Ballem that a trial court, confronted only with a 

petition for production of documents where no action is pending, 

is in no position to assess a petitioner’s claims to determine 

whether they constitute compelling reasons warranting a grant of 

the petitioner’s petition. Id. Here, as in Martin, we decline to 

find an abuse of discretion in denying the petitioner’s request until 

a proceeding to question the record is commenced. See id.

Crider, 735 A.2d at 733.

In addressing Appellant’s claims herein, the trial court cited Martin and

Crider in concluding that it was not required to grant a request for transcripts 

when the request was not connected to a pending action. Trial Court Opinion, 

7/27/18, at 3. The court also stated the following in furtherance of its 

decision:

Aside from the absence of a pending matter, [Appellant] has 

failed to identify the specific transcripts he is seeking.4 He also 

ignores the fact that all of [the] transcripts have already been 

provided to him on numerous occasions.5 Despite having multiple 

opportunities to review these materials during the course of the 

appeal process, he has been unable to produce a claim that would 

entitle him to relief. Even when counsel was appointed to 

represent [Appellant’s] interests, they were unable to substantiate 

any legitimate claims for relief on his behalf. It is unlikely that 

there is anything left to be discovered in the record if [Appellant’s] 

motion is granted. This most recent filing is nothing more than a 

thinly veiled attempt to re-litigate issues that have previously 

[been] deemed meritless. 

4 [Appellant’s] failure to specify which transcripts he 

is requesting suggests that he has not yet established 
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a new basis for challenging his conviction. [Appellant] 

is really engaging in a fishing expedition, hoping to 

find a new issue to raise by reviewing the entire record 

yet again. This is not a basis for granting his request.

5 Throughout the history of this case, all of the 

transcripts have been provided to [Appellant] at one 

point or another for his review, and he utilized them 

in crafting his series of appeals. Nothing in the record 

has changed since the last time the Superior Court 

denied relief on February 22, 2018, so there is no 

reason to provide [Appellant] with the transcripts 

once more.

Trial Court Opinion, 7/27/18, at 3-4. 

Instantly, Appellant had not filed a PCRA petition or initiated any other 

pending matter when he requested copies of the transcripts. Consequently, 

pursuant to Martin, Crider, and Ballem, the trial court did not err in denying 

Appellant’s request. Furthermore, Appellant provides no argument directly 

addressing our holdings in Martin, Crider and Ballem. Moreover, as the 

common pleas court observed, Appellant has not identified which transcript 

he is seeking or the basis for the request; thus, his claim lacks specificity and 

could be waived on that basis.

1

 Lastly, evidence of record reflects that 

Appellant has received these transcripts previously. Accordingly, we conclude 

that Appellant is not entitled to relief on his claims. 

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1 “The failure to develop an adequate argument in an appellate brief may 

result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth v. 

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007). We shall not develop an 

argument for an appellant, nor shall we scour the record to find evidence to 

support an argument; instead, we will deem issue to be waived. Id.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/1/19