J-S69031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTOINE CARTER

Appellant No. 311 EDA 2014

Appeal from the PCRA Order entered January 8, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0005989-2007

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JANUARY 12, 2015

Appellant, Antoine Carter, appeals from the January 8, 2014 order of 

the Philadelphia County Court of Common Pleas denying his petition 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Upon review, we affirm. 

The trial court summarized the facts and the procedural history of the 

case in its Rule 1925(a) opinion, which we incorporate here by reference. 

Trial Court Opinion, 4/3/14, 1-2. See also Commonwealth v. Carter, No. 

2600 EDA 2008, unpublished memorandum at 1-3 (Pa. Super. filed July 1, 

2011). Briefly, the trial court found Appellant guilty of aggravated assault, 

robbery, and recklessly endangering another person as of result of Appellant 

assaulting the victim over a twelve-hour period because he failed to 
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purchase beer with $10 Appellant had previously given to him. Appellant 

was sentenced, inter alia, to 25 to 50 years’ incarceration. 

On direct appeal, counsel filed a timely Rule 1923 statement because 

the trial transcript was not available.1 Counsel also filed a timely Rule 

1925(b) statement challenging the sufficiency of the evidence supporting his 

convictions. Subsequently, direct appeal counsel filed an Anders2 brief with 

this Court along with a petition to withdraw. On July 1, 2011, we affirmed 

the judgment of sentence and granted counsel’s petition to withdraw.3 On 

____________________________________________

1 Rule 1923 reads as follows:

If no report of the evidence or proceedings at a hearing or trial 

was made, or if a transcript is unavailable, the appellant may 

prepare a statement of the evidence or proceedings from the 

best available means, including his recollection. The statement 

shall be served on the appellee, who may serve objections or 

propose amendments thereto within ten days after service. 

Thereupon the statement and any objections or proposed 

amendments shall be submitted to the lower court for settlement 

and approval and as settled and approved shall be included by 

the clerk of the lower court in the record on appeal.

Pa.R.A.P. 1923. 

2 See Anders v. California, 386 U.S. 738 (1967).

3

It is worth noting that, Appellant, on direct appeal, challenged the 

adequacy of the record based on the absence of the trial transcript. In 

response, we noted:

Following the filing of counsel’s Anders brief on July 2, 2010, 

appellant filed an application to strike his attorney’s brief and 

remand to the Court of Common Pleas to reconstruct the record. 

On August 9, 2010, this [C]ourt denied the motion but ordered 

(Footnote Continued Next Page)
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December 14, 2011, our Supreme Court denied Appellant’s petition for 

allowance of appeal. Commonwealth v. Carter, 34 A.3d 825 (Pa. 2011).

On January 27, 2012, Appellant timely filed a PCRA petition. The trial 

court appointed counsel, who filed an amended PCRA petition on December 

4, 2012, alleging direct appeal counsel was ineffective for not requesting a 

new trial in the absence of trial transcript. The trial court dismissed the 

petition, finding direct appeal counsel was not ineffective. This appeal 

followed. 

Appellant argues the trial court erred in not finding direct appeal 

counsel ineffective for failing to request a new trial based on the 

unavailability of the trial transcript, as opposed to filing a Rule 1923 

statement. We disagree.

In reviewing the denial of PCRA relief, we examine whether the 

PCRA court’s determination “is supported by the record and free 

of legal error.” Commonwealth v. Rainey, [928 A.2d 215, 223 

(Pa. 2007)] (citations omitted). To be entitled to PCRA relief, 

appellant must establish, by a preponderance of the evidence, 

his conviction or sentence resulted from one or more of the 

enumerated errors in 42 Pa.C.S. § 9543(a)(2) . . . .

(Footnote Continued) _______________________

appellant’s counsel to provide appellant with transcripts of the 

court proceedings and/or any Pa.R.A.P. 1923 statements, and 

allowed appellant 60 days to file pro se response. Appellant 

failed to file a response.

Carter, 2600 EDA 2008, at 3 n.2. In addition to addressing counsel’s 

petition to withdraw, this Court also addressed the sufficiency of the 

evidence claims with regard to his convictions. Id. at 4-9. We concluded 

the evidence was sufficient to support Appellant’s convictions. Id.
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Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). 

Here, Appellant argues he is entitled to relief based on direct appeal 

counsel’s ineffective assistance. We review ineffective assistance claims 

according to the following standard:

To prevail on an ineffectiveness claim, appellant 

must establish:

(1) the underlying claim has arguable merit; (2) no 

reasonable basis existed for counsel’s actions or 

failure to act; and (3) [appellant] suffered prejudice 

as a result of counsel’s error such that there is a 

reasonable probability that the result of the 

proceeding would have been different absent such 

error.

Commonwealth v. Lesko, [15 A.3d 345, 373-74 (Pa. 2011)] 

(citing Commonwealth v. Pierce, [527 A.2d 973, 975 (Pa. 

1987)]). Failure to prove any prong of this test will defeat an 

ineffectiveness claim. Commonwealth v. Basemore, [744 

A.2d 717, 738 n.23 (Pa. 2000)] (citation omitted). “[I]f a claim 

fails under any necessary element of the Strickland [v.

Washington, 466 U.S. 668 (1984)], test, the court may 

proceed to that element first.” Lesko, at 374 (citations 

omitted). When an appellant fails to meaningfully discuss each 

of the three ineffectiveness prongs, “he is not entitled to relief, 

and we are constrained to find such claims waived for lack of 

development.” Commonwealth v. Steele, 961 A.2d 786, 797 

(Pa. 2008); see also Commonwealth v. Walter, 966 A.2d 

560, 566 (Pa. 2009) (citation omitted).

Id. at 804.

Regarding the issue of the unavailability of trial transcript,

[t]he U.S. Supreme Court has recognized that adequate and 

effective appellate review is impossible without a trial transcript 

or adequate substitute and has held that the States must 

provide trial records to indigent inmates. See Bounds v. 

Smith, 430 U.S. 817 [] (1977) (citing Griffin v. Illinois, 351 

U.S. 12 [] (1956)). [Our Supreme Court] has similarly 
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concluded that a criminal defendant is entitled to “a full 

transcript or other equivalent picture of the trial proceedings” in 

order to engage in meaningful appellate review. 

[Commonwealth v. Marshall, 812 A.2d 539, 551 (Pa. 2002)] 

(quoting Commonwealth v. Shields, [383 A.2d 844, 846 (Pa. 

1978)). However, in order to “establish entitlement to relief 

based on the incompleteness of the trial record, [appellant] must 

first make some potentially meritorious challenge which cannot 

be adequately reviewed due to the deficiency in the transcript.” 

Id.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1149 (Pa. 2012). 

Appellant baldy asserts that the Rule 1923 statement was inadequate 

because: (i) it provided extremely short summaries of complainant’s 

testimony, provided little other information about the trial, and failed to 

provide the names of the testifying officers, and (ii) “did not detail the crossexamination of the complainant and the inconsistent statements he made at 

trial.” Appellant’s Brief at 7. Appellant concludes that “[a] 1923 statement 

that does not even contain the names of the witnesses is not ‘equivalent 

picture of the trial proceedings.’” Id. (quoting Shields). 

Appellant miscomprehends the import of Rule 1923 and Shields. In 

Appellant’s view, in essence, anything less than the transcript is insufficient 

for purposes of appellate review. Neither Rule 1923, nor Shields or any 

other authority supports such interpretation. 

Even if we were to agree that failure to mention the witnesses by 

name affected Appellant’s entitlement to “a full transcript or other equivalent 

picture of the trial proceedings,” Shields, 383 A.2d at 846, Appellant fails to 

recognize that to establish entitlement to relief based on the incompleteness 
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of the record, Appellant “must first make some potentially meritorious 

challenge which cannot be adequately reviewed due to the deficiency in the 

transcript.” Id. Appellant identifies as potentially meritorious challenges 

the sufficiency of the evidence to support his convictions, and the credibility 

of victim. These claims, however, were adequately presented to and 

addressed by this Court on direct appeal. In fact, in addition to denying 

Appellant’s sufficiency of the evidence claims on its merits, this Court denied 

Appellant’s application to remand the matter to the trial court to reconstruct 

the record. Nonetheless, we granted Appellant the opportunity to address 

any deficiency in the record, but Appellant failed to do so. See Carter, No. 

2600 EDA 2008, at 3 n.2.

With regard to the credibility of victim, Appellant fails to recognize that 

this Court does not make credibility determinations, nor can we substitute 

our judgment with that of the trial court. See, e.g., Commonwealth v. 

Emler, 903 A.2d 1273, 1277 (Pa. Super. 2006). Accordingly, this Court 

could not, and would have not, reversed the trial court based on our 

assessment of victim’s credibility. See Carter, No. 2600 EDA 2008, at 5. 

In light of the foregoing, we find Appellant failed to specify any 

potential meritorious claim that could not be developed or reviewed because 

the trial transcript was not available. Accordingly, we conclude Appellant’s 
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claim that direct appeal counsel was ineffective fails because the underlying 

claim has no arguable merit.4 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2015

____________________________________________

4 Because we conclude Appellant’s claim does not have arguable merit, we 

need not address the other two prongs of standard for ineffective assistance 

claims. Basemore, 744 A.2d at 738 n.23 (Pa. 2000).