Commonwealth v. Burrows

550 A.2d 787, 379 Pa. Super. 548, 1988 Pa. Super. LEXIS 3518
CourtSupreme Court of Pennsylvania
DecidedNovember 7, 1988
Docket86
StatusPublished
Cited by14 cases

This text of 550 A.2d 787 (Commonwealth v. Burrows) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Burrows, 550 A.2d 787, 379 Pa. Super. 548, 1988 Pa. Super. LEXIS 3518 (Pa. 1988).

Opinions

JOHNSON, Judge:

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 [550]*550the 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 8-y2 to 7 years’ imprisonment, the conviction for retail theft having been a third or subsequent offense. See 18 Pa.C.S. § 3929(b)(l)(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 would continue efforts to have Dratwa file the transcript, Judge [551]*551Nygaard made it clear that counsel’s compliance with Rule 1923 would facilitate the appeal in this case.

Pennsylvania Rule of Appellate Procedure 1923 provides as follows:

Rule 1923. Statement in Absence of Transcript
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 of appeal.

Appellate counsel Constantine did not respond to or acknowledge Judge Nygaard’s letter of May 11, 1987 until September 23,1987. On that date, Constantine wrote to the trial judge acknowledging the May 11th letter directive and stating “it is not possible for me to prepare such a [Rule 1923] statement as I was not trial counsel in this matter.” Counsel went on to request that the court take “whatever legal action is possible” against Dratwa in Florida to have the transcripts prepared.

On September 30, 1987, Judge Nygaard again wrote to Constantine, indicating the court’s continuing accessibility to both Constantine and the prosecutor in developing the statement contemplated by Rule 1923. Judge Nygaard requested that Constantine take immediate action, in order not to jeopardize Burrow’s appeal.

On October 15, 1987, with no further action apparent of record by Constantine, the trial court record was received in this court. Finally, on November 24, 1987, a Brief of Appellant was filed by Constantine, containing as its principal contention that the case should be remanded for retrial since the trial transcript was unavailable and “meaningful appellate review is impossible.”

[552]*552We find no difficulty in accepting as a principle of law, that where meaningful review is impossible and appellant is free from fault, a new trial may be granted. Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978).

Meaningful review does not require, per se, a complete trial transcript. Where an indigent is implicated in a criminal trial, the court must provide either a trial transcript or an equivalent thereof in order that the defendant may properly prosecute an appeal. Oliver v. Zimmerman, 720 F.2d 766 (3d Cir.1983), cert. denied, 465 U.S. 1033, 104 S.Ct. 1302, 79 L.Ed.2d 701 (1984). And of equal importance, a criminal defendant must first show a colorable need for a complete transcript before the state must meet its burden of showing that something less will suffice. Karabin v. Petsock, 758 F.2d 966 (3d Cir.), cert. denied, 474 U.S. 857, 106 S.Ct. 163, 88 L.Ed.2d 135 (1985).

On this appeal, we are faced with a simple shoplifting case, where Burrows and one Yvette Williams were charged with having entered a Joseph Horne Co. department store in Erie at about 5:30 p.m. on April 3, 1985 and having attempted to stuff six dresses worth a total of $604 into a shopping bag without removing the hangers. Identification is not an issue.

The issue on this appeal is whether appellate counsel may ignore a directive of the trial court to prepare a statement of the evidence from the best available means, simply by stating, and re-stating, that appellate counsel was not trial counsel. We think not.

There is nothing to suggest that Michelle Hawks, defense trial counsel, was not available to Constantine throughout his stewardship on this appeal. It appears clear from the record, including the Petition for Writ of Habeas Corpus, the Trial Memorandum, and the Motion for New Trial and/or Arrest of Judgment, — all filed by trial defense counsel — that the issues to be presented on appeal do not go so much to any factual dispute, but rather relate to whether a conviction can be had for retail theft (attempt) where the [553]*553retailer’s merchandise had been rolled up but not yet deposited into an open shopping bag held by Yvette Williams.

Rule 1923 does not require appellate trial counsel to have first hand, direct knowledge of what transpired at trial.

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Bluebook (online)
550 A.2d 787, 379 Pa. Super. 548, 1988 Pa. Super. LEXIS 3518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-burrows-pa-1988.