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COMMONWEALTH v. NORMAN (05/25/72)

decided: May 25, 1972.

COMMONWEALTH
v.
NORMAN, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, No. 933, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1949, Nos. 266 to 281, inclusive, in case of Commonwealth of Pennsylvania v. Charles Norman.

COUNSEL

Francis S. Wright, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Milton M. Stein, Assistant District Attorney, with him Louis A. Perez, Jr., Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Jones. Mr. Justice Pomeroy joins in this dissent.

Author: O'brien

[ 447 Pa. Page 516]

On May 18, 1949, appellant, Charles Norman, was tried before a judge and jury on sixteen separate bills of indictment, eight charging aggravated assault, and eight charging carrying a concealed weapon in connection with eight separate armed robberies. Appellant pleaded guilty to two of the indictments, and a jury found him guilty of all of the rest. At the insistence of the trial judge, post-trial motions were argued immediately after the verdicts were rendered. The motions were denied and appellant was sentenced to consecutive sentences adding up to either 50 to 100 years

[ 447 Pa. Page 517]

    or 80 to 160 years, depending on whether one chooses to believe the record which indicates that sentences were only pronounced on five of the bills, or chooses to examine each of the eight bills upon which is contained a 10 to 20 year sentence to be served consecutively with the others. Both counsel and the lower court have assumed that the sentences were "limited," as pronounced, to five consecutive 10 to 20 year sentences. In view of our disposition of this case, we need not settle the discrepancy between the sentences as pronounced and the sentences as indicated on the separate indictments.

On May 29, 1967, appellant filed a petition for relief under the Post Conviction Hearing Act, alleging a denial of his Douglas rights. On November 2, 1967, appellant was permitted to file motions for a new trial nunc pro tunc. These motions were denied and the Superior Court affirmed. Commonwealth v. Norman, 217 Pa. Superior Ct. 840, 270 A.2d 265 (1970). We granted allocatur and now we reverse.

We do so because of the denial of due process occasioned when, despite appellant's counsel's specific request that a stenographer be appointed and the notes of testimony be transcribed, the court stenographer failed to transcribe the trial court's charge to the jury. As we noted in Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971), there is almost universal accord that if "a transcript per se is not an absolute due process necessity, there must at least be an equivalent 'picture' of what transpired below." See also Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972).

The Commonwealth relies on Norvell v. Illinois, 373 U.S. 420, 83 S. Ct. 1366 (1963), a case in which the trial transcript was unavailable because of the death of the reporter, where the Supreme Court held: ". . . [W]here transcripts are no longer available, Illinois

[ 447 Pa. Page 518]

    may rest on the presumption that he who had a lawyer at the trial had one who could protect his ...


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