Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1964, Nos. 790 and 791, in case of Commonwealth of Pennsylvania v. Robert Gatewood.
Francis S. Wright, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, with him Maxine J. Stotland, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Cercone, J., concurs in the result. Wright, P. J., would affirm on the opinion of Judge Doty. Watkins, J., dissents.
[ 221 Pa. Super. Page 400]
This appeal from the denial of nunc pro tunc post-trial motions is based upon (1) the unavailability of a significant part of the notes of testimony, and (2) the denial by the trial court of an offer to prove, by the attorney for a co-defendant, a prior inconsistent statement of a witness as to a material matter.
The appellant has been convicted of aggravated robbery and aggravated assault and battery in connection with the holdup of a cab driver during the first hours of May 12, 1963. At the trial, the cab driver stated that he was robbed by three passengers and identified appellant as one of the three. He admitted that his first identification of the appellant took place more than six months after the incident, when appellant stood alone at the bar of court for his preliminary hearing.
A witness, who had been convicted as an accomplice in the robbery, testified that it was the appellant and his co-defendant who had participated in the holdup.
[ 221 Pa. Super. Page 401]
On cross-examination, he denied that he had told counsel for the co-defendant that he knew nothing about the robbery of the cab driver.
At the completion of the Commonwealth's case, counsel for the defendant made an offer of proof of a conversation between the witness and the attorney for the co-defendant but the offer was refused by the court, which stated: "The court is of the opinion that the disadvantages of having the attorney for Bowser take the witness stand are much greater than any benefits that would accrue from, and the Commonwealth's objection is sustained." Both the defendant and co-defendant testified. The transcribed notes do not contain any part of the testimony of the two defendants, but the charge of the court which is transcribed does make reference to some of the testimony of the co-defendants who each denied presence at or participation in the robbery.
Appellant asserts that a new trial is required because he has been denied due process of law in that the incomplete transcript of the lower court proceedings deprived him of a fully meaningful appeal, Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971). The missing notes span one of four days trial. The available record contains all the Commonwealth evidence and the testimony of one defense witness but does not contain the testimony of the appellant and co-defendant. The pages of ...