Robert M. Fellheimer, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., joins in this opinion and files a concurring opinion. Pomeroy, J., filed a dissenting opinion in which Larsen, J., joined. Nix, J., dissents.
Appellant, Alexander Shields, was tried by a jury and convicted of murder of the second degree, statutory rape, and involuntary sexual intercourse. Post-verdict motions were denied. The homicide conviction was appealed directly to this Court. The other convictions were properly certified to this Court by the Superior Court.
Appellant raises five issues on appeal: (1) that his confessions should have been suppressed because they were made subsequent to an arrest without probable cause and because appellant was incapable of making a knowing and intelligent waiver of his Miranda rights; (2) that he was improperly denied a continuance for the purpose of obtaining new counsel; (3) that the prosecutor was permitted over-broad cross-examination when appellant took the stand to challenge the voluntariness of his confessions; (4) that an effective appeal has been denied because of the loss of a portion of the trial transcript; and (5) that certain of appellant's points for charge were improperly denied.
Because we agree with appellant that the loss of a crucial portion of the trial transcript renders effective review in our Court impossible, we reverse the judgments of sentence and grant appellant a new trial. We therefore do not consider the other issues raised.
The prosecution concedes that the tapes of the prosecutor's closing argument to the jury were lost in the mail and never transcribed. The prosecution also admits that the court had ordered that all notes be transcribed. Defense counsel has consequently had no record of the closing remarks of the prosecutor for use in making post-verdict motions or for pursuing an appeal. Likewise, we have been denied opportunity to review alleged improprieties in the prosecutor's summation.
In order to assure that a defendant's right to appeal will not be an empty, illusory right, we require that he or she be furnished a full transcript or other equivalent picture of the trial proceedings. Meaningful appellate review is otherwise an impossibility, and fairness dictates that a new trial be granted. Commonwealth v. Goldsmith, 452 Pa. 22, 25, 304 A.2d 478, 480 (1973); Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972); Commonwealth v. Norman, 447 Pa. 515, 291 A.2d 112 (1972); Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 879 (1971); Commonwealth v. Banks, 428 Pa. 571, 237 A.2d 339 (1968) (dissenting opinion of Roberts, J., joined by Eagen, J.).
In the instant case no blame for the absence of a transcript may be ascribed to the appellant. The prosecution so concedes in its brief. "If a meaningful appellate review is impossible, for whatever reason, and the appellant is not at fault, he is entitled to a new trial." Commonwealth v. Goldsmith, supra, 452 Pa. at 25, 304 A.2d at 480 (1973). (Emphasis in original.)
The prosecution contends that appellant is not entitled to relief because defense counsel has not "specifically quoted or even described" the remarks which he found prejudicial. The prosecution's argument begs the question: If appellant could specifically quote or describe the alleged prejudicial portions of the closing argument, and assuming that the prosecution accepted the defense's version, there would be no need for the missing portion of the transcript to insure meaningful appellate review. The prosecution is in effect contending that defense counsel has not presented an "equivalent picture" of the prosecution's summation. The burden, however, is upon the prosecution, not the defendant, to make available a full record or its ...