Appeals, Nos. 177 to 180, inclusive, April T., 1958, from judgment of Court of Quarter Sessions of Allegheny County, Sept. T., 1957, No. 69, and June T., 1957, Nos. 196, 197, and 198, in case of Commonwealth of Pennsylvania v. Harold Kimble. Judgment affirmed.
Max K. Markovitz, for appellant.
William Claney Smith, Assistant District Attorney, and Edward C. Boyle, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 491]
The appellant, Harold Kimble, was convicted on October 18, 1957, on four bills of indictment in the Court of Quarter Sessions of Allegheny County for violation of the narcotic laws. The appellant was sentenced to pay a fine of $250, to pay the costs of prosecution and to undergo imprisonment of not less than five years nor more than ten years in the Allegheny County Workhouse. This sentence was to run concurrently with the sentence imposed in a prior case of Aggravated Assault and Battery, which he was serving at the time. Similar concurrent sentences were imposed on the other three bills. Prior to the argument on his motion for a new trial and in arrest of judgment, the stenographer who took the notes of testimony at the trial became incapacitated and was unable to transcribe his notes.
The appellant's original motion for a new trial set forth four stereotyped reasons: That the verdict was against the evidence and the weight thereof; that it was against the law; that it was against the charge of the court and that the trial judge erred in ruling on the evidence. The motion in arrest of judgment set forth that error appeared on the face of the record of the proceeding and that the evidence was insufficient to sustain the charge in the indictments. No more specific reasons were ever given, except that, prior to
[ 187 Pa. Super. Page 492]
the argument, the following additional reason was filed:
"It is impossible to procure a transcript of the proceedings at the trial of the above-captioned case, so as to ascertain what trial errors were committed such as to be the basis of the filing of further reasons in support of the pending motion for a new trial, or such as to be the basis of supporting the reasons heretofore filed in the pending motion for a new trial and in the pending motion for an arrest of judgment. Mr. W. W. Shaw, the court reporter, who took the testimony and the charge of the learned trial judge, is incapacitated, and his incapacity, according to the defendant's information and belief, will prevent Mr. Shaw's future ability to transcribe the trial testimony and the charge of the court, and none of the other court stenographers is able to transcribe said testimony and charge."
After argument before the court en banc the motions were dismissed and this appeal is based solely on the refusal of the Court below to grant a new trial because the transcript of testimony was not available to the appellant. So the question before us is whether the failure to grant a new trial for that reason is an abuse of discretion by the court below. We do not believe it is, unless accompanied with a recital of facts pointing out how the lack of the notes of testimony prejudiced the appellant.
A careful examination of the review of the testimony, from the copious notes of the trial judge, as set forth in the opinion of the court below, where the testimony of the witnesses and the charge of the court is recited in detail, the accuracy of which is not challenged by the appellant, does not convince us that the appellant was prejudiced, in any way, on his appeal, by the ...