No. 55 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Cambria County, at No. C-1192, 1975, filed September 29, 1976, Criminal Division
Russell J. Heiple, Johnstown, for appellant.
D. Gerard Long, Dist. Atty., David J. Tulowitzki, Ebensburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., files a concurring opinion. Pomeroy, J., concurs in the result. Nix, J., concurs in the result. Manderino, J., files a dissenting opinion.
Appellant, Andrew C. Hughes, was convicted by a jury of murder of the third degree for the shooting death of Robert Stephens. Post-verdict motions were denied, and appellant was sentenced to a prison term of ten to twenty years. This direct appeal followed.
The facts are as follows. On October 10, 1975, appellant, while driving his own automobile, encountered an automobile driven by Robert Stephens, the victim, at a particularly narrow passage of Ebensburg Road in the city of Johnstown. As both cars arrived at the spot simultaneously, neither was able to pass. Following a verbal exchange, appellant backed his car into a side street and allowed Stephens to pass.
Shortly thereafter, appellant was seen in a parking lot of the Frontier Club on Ebensburg Road. As Stephens walked past appellant's car, appellant jumped out, brandishing a .45 caliber handgun. He shot the victim five times in the chest and abdomen. Stephens died two days later.
Appellant first claims that he is entitled to a new trial because the trial court improperly substituted its trial notes for a lost portion of the transcript. The facts are as follows.
The stenographer originally assigned to this case became ill during the first day of trial. She was replaced by a second stenographer, who completed the trial. The notes from the first day of trial, which included testimony of Christine Stephens, the victim's wife, and Trooper Darryl Mayfield, a ballistics expert, were misplaced and never found.
On August 18, 1976, a hearing to supply the missing portions of the transcript was held. The trial court proposed filing its notes of the testimony, giving both the prosecution and defense an opportunity to make changes. The court then proposed to file a certificate, summarizing each witness' testimony. Defense counsel objected generally and moved for a new trial. The court overruled the objection and denied the request for a new trial. The court then proceeded with its proposed procedure. Defense counsel offered no statement or changes to the trial court's notes.
Pennsylvania Rule of Appellate Procedure 1923 provides:
"If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal."
Appellant argues that since this rule was not followed, he is entitled to a new trial. We do not agree.
At the time of the hearing to supply the missing portions of the transcript, Pa.R.A.P. 1923 had been in effect for over six weeks. Appellant, however, never objected on the grounds that the court's proposed procedure violated the rule. Under circumstances such as these, appellant cannot now complain of the failure to ...