Appeal from the judgment of Sentence entered December 19, 1985, Court of Common Pleas, Erie County, Criminal Division, at No. 610 of 1985.
Francis John Constantine, Erie, for appellant.
John J. Trucilla, Assistant District Attorney, Erie, for Com.
McEwen, Del Sole and Johnson, JJ. Del Sole, J., files a dissenting statement.
[ 379 Pa. Super. Page 549]
We are challenged to consider the proper remedy when a criminal trial transcript is not available, through no fault of the defendant, and appellate defense counsel has refused to avail himself of the provisions of Rule of Appellate Procedure 1923, providing for an agreed upon statement of the record.
Appellate counsel argues that the case should be remanded for retrial on the basis that the trial transcript is unavailable and meaningful appellate review is impossible. The Commonwealth responds that the case should be remanded for preparation of a trial transcript or for reconstruction of
[ 379 Pa. Super. Page 550]
the trial proceedings to provide an equivalent picture. Following our careful review of the record, we are constrained to disagree with both formulations. We, therefore, affirm.
After a one-day trial without jury, Robert J. Burrows was convicted on one count each of retail theft and criminal conspiracy. Motions for a new trial and in arrest of judgment were filed and denied. Burrows was sentenced to 3-1/2 to 7 years' imprisonment, the conviction for retail theft having been a third or subsequent offense. See 18 Pa.C.S. § 3929(b)(1)(iv) (third degree felony). A motion to modify sentence was denied on December 31, 1985.
Up to this point, Burrows was represented by the Public Defender, in the person of Michelle Hawk.
On January 17, 1986, Francis J. Constantine entered his appearance for Burrows and filed a notice of appeal in the court of common pleas from the judgment of sentence. The same day, new appellate counsel filed an order, dated January 16, 1986, permitting Burrows to proceed in forma pauperis on this appeal.
The notice of appeal was docketed in the Superior Court on January 21, 1986, along with the in forma pauperis order.
From the record, no further activity appears to have taken place until May 11, 1987. On that date, the Honorable Richard L. Nygaard wrote to appellate defense counsel, Constantine, informing him that the transcript of the trial of October 10, 1985 had not been filed. Judge Nygaard further informed counsel that the court stenographer, Donna Dratwa, was no longer employed by the county and was living in Florida. Judge Nygaard further stated that attempts to have Dratwa transcribe and file the trial proceedings had proven fruitless.
The trial court's letter of May 11, 1987 went on to direct appellate counsel to comply with the procedure set forth in Pa.R.A.P.1923, and prepare a statement in lieu of the transcript of the trial. While indicating that the court ...