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COMMONWEALTH PENNSYLVANIA v. FELIX BERRIOS RIVERA (02/22/85)

filed: February 22, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
FELIX BERRIOS RIVERA, APPELLANT



No. 14 Harrisburg, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Adams County, No. CC-74-82.

COUNSEL

John D. Kuhn, Public Defender, Harrisburg, for appellant.

Gary E. Hartman, District Attorney, Gettysburg, for Commonwealth, appellee.

Spaeth, President Judge, and Cavanaugh, Wieand, McEwen, Cirillo, Del Sole, Johnson, Popovich and Cercone, JJ. Cirillo, J., filed a dissenting opinion. Johnson, J., filed a dissenting opinion in which McEwen, J., joined. Cercone, J., did not participate in the consideration or decision of this appeal.

Author: Per Curiam

[ 339 Pa. Super. Page 243]

Felix Berrios Rivera was tried by jury and was found guilty of conspiracy, burglary, theft, robbery, and recklessly endangering another person as a result of the gunpoint theft of money and valuables from two women in Adams County. After post-trial motions had been denied, the trial court imposed a sentence of imprisonment for not less than four nor more than eight years. On direct appeal, Rivera raises two issues which require that we examine the complete trial record. A complete record, however, is not

[ 339 Pa. Super. Page 244]

    available to us. The trial court, we are advised, has declined to order a transcript of the entire trial and has directed that only a portion thereof be transcribed. Because of this unsatisfactory state of the record, we are unable to conduct an adequate review. Therefore, we will remand to permit the trial court and the parties to complete the record by transcribing all testimony offered during trial.

The first issue raised by appellant is the alleged insufficiency of the evidence to sustain the conviction for recklessly endangering another person. The evidence, it is argued, does not disclose whether the gun was loaded. Appellant argues from this Court's decision in Commonwealth v. Trowbridge, 261 Pa. Super. 109, 395 A.2d 1337 (1978), which held that merely pointing an unloaded gun did not constitute reckless endangerment, that the Commonwealth's evidence failed to support a finding that he had recklessly endangered the victims of his crime. This contention, in view of our earlier decision, would appear to have arguable merit sufficient to require this Court's careful review of the evidence received at trial. The trial court rejected the argument because, it concluded, there was other evidence to support the jury's verdict. This conclusion was reached by the court "[a]fter reviewing our trial notes and the portion of the trial transcribed . . . ." (Trial Court Opinion, p. 3). The trial court's notes, of course, are not available to this Court. The only portion of the trial which has been transcribed is the testimony of Kathy Laughman, an accomplice of appellant, who gave testimony as a Commonwealth witness. Her recollection of details was meager. No other testimony, not even that elicited from the victims, is before us. We have been advised by appellant's counsel that a request made to the trial court to direct transcription of the remaining portions of the trial was rejected.*fn1 Under these

[ 339 Pa. Super. Page 245]

    circumstances, we will remand with instructions to the trial court to complete the record and return it to us for further review.

The same deficiency suggests that we also delay decision on appellant's second issue. The trial judge, when asked by the jury for additional instructions concerning the several definitions of robbery, told the jury that "there [was] no evidence in this case that could substantiate a finding of guilty of count 3." N.T., June 30, 1982, at 38. This count contained an accusation that appellant had violated 18 Pa.C.S. § 3701(a)(1)(v), which makes it a felony of the third degree if a person, during the course of committing a theft, "physically takes or removes property from the person of another by force however slight." The effect of this remark, the appellant contends, was to compel the jury, if it found that he had been one of the robbers, to convict him of violating 18 Pa.C.S. § 3701(a)(1)(ii) or (iv). The first of these subsections provides that a felony of the first degree has occurred if, in the course of a theft, the thief "threatens another with or intentionally puts him in fear of immediate serious bodily injury." The second subsection defines a felony of the second degree to occur when, during the course of a theft, the thief "inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury."

Judge Johnson, writing in dissent, suggests that this issue is susceptible of decision upon the record now before us. A majority, however, is of the opinion that the parties and this Court will be better served by reserving decision until after a full and careful review has been made of a complete record of all evidence placed before the jury. The delay thus caused will not "reward" the defendant. Similarly, it will not serve to encourage laxity on the part of counsel. Neglect on the part of counsel has its own reward and can be dealt with by other means. Here, however, the efforts of counsel to complete the record were thwarted by

[ 339 Pa. Super. Page 246]

    the trial court which rejected a request for a full transcript and ordered that only a portion of the trial testimony be transcribed. Although we decry the delay caused by these circumstances, we are of the opinion that this Court will better be able to fulfill its reviewing responsibility by requiring a complete record of all the evidence presented at trial to determine whether it supports the verdict of the jury and the instructions delivered by the trial court.

Remanded with directions to the trial court to obtain and forward forthwith to this Court a full transcript of the trial. Meanwhile, jurisdiction is retained.

CIRILLO, Judge, dissenting:

I respectfully dissent. Pa.R.App.P. 2117(c)(4) ...


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