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COMMONWEALTH PENNSYLVANIA v. RICHARD MORGAN (10/20/76)

SUPREME COURT OF PENNSYLVANIA


decided: October 20, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD MORGAN, APPELLANT

COUNSEL

Defender Ass'n of Philadelphia, John W. Packel, Asst. Defender, Chief, Appeals Div., Douglas Riblet, Asst. Defender, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Per Curiam

[ 469 Pa. Page 37]

OPINION OF THE COURT

On April 9, 1975, appellant Richard Morgan was convicted of criminal contempt in the Court of Common Pleas, Philadelphia County and sentenced to three months imprisonment. A direct appeal from the contempt conviction was timely filed with this Court on April 29, 1975.*fn1 However, the transcript of the contempt proceedings was not available to appellant until after he had filed his brief with this Court due to the failure of the trial court stenographer to transcribe the notes of testimony. Although appellant had the opportunity to request leave of court to withdraw his brief and file another brief addressed to the substantive issues, he failed to do so. Rather, he chose to rely upon his original brief which directed its argument to the unavailability of the transcript. Thus, the sole question presented on appeal is whether the failure of the stenographer to timely transcribe the notes of testimony deprived appellant of his right of appeal and requires a reversal of the conviction. Under the facts of this case we do not believe the requested relief is the appropriate remedy.

It is undisputed that a defendant's right to a meaningful appeal requires he be provided with a copy of a transcript or other equivalent picture of the proceedings below, Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973); Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972). Moreover, it is the responsibility of the state to see that the transcript is made available to appellant so that he may effectively pursue his appeal rights. Commonwealth v. Goldsmith, supra, 452 Pa. at 29, 304 A.2d 478. However, while we agree that the stenographer has failed to act in this matter to the degree

[ 469 Pa. Page 38]

    of promptitude and diligence that the law expects,*fn2 we are not persuaded that appellant's right to appeal has been rendered a nullity since the notes from the proceeding below are now available. Thus, the instant case is easily distinguished from those prior decisions upon which appellant relies.

In Commonwealth v. Goldsmith, supra, a new trial was granted when the death of the stenographer prevented transcription of her notes. Similarly, in Commonwealth v. DeSimone, supra and Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971), we ordered new trials because the proceedings below were never recorded and therefore, no transcript was available for review. In each instance, the appellant was effectively denied his right to an appeal because there was no way to reconstruct the lower court proceedings. However, in the instant case the complete record is now available and appellant has failed to show any additional resultant prejudice beyond the delay itself. Under these circumstances, the interests of justice would not be served by reversing the conviction without a full consideration of the merits of the appeal.

Accordingly, the decision of this matter shall be held in abeyance for 30 days from the date of the filing of this opinion to afford appellant an opportunity to file a supplemental brief addressed to the merits of his appeal

[ 469 Pa. Page 39]

    from the contempt conviction in the court below. The Commonwealth shall have 30 days from the date of the filing of appellant's brief to file a supplemental response. Failure of appellant to comply with this directive will result in the dismissal of his appeal and an affirmance of the judgment of sentence.

It is so ordered.


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