Commonwealth v. Harvey

32 A.3d 717, 2011 Pa. Super. 186, 2011 Pa. Super. LEXIS 2250
CourtSuperior Court of Pennsylvania
DecidedAugust 30, 2011
StatusPublished
Cited by10 cases

This text of 32 A.3d 717 (Commonwealth v. Harvey) is published on Counsel Stack Legal Research, covering Superior 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. Harvey, 32 A.3d 717, 2011 Pa. Super. 186, 2011 Pa. Super. LEXIS 2250 (Pa. Ct. App. 2011).

Opinion

OPINION BY

STEVENS, P.J.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following Appellant’s conviction by a jury on the charges of involuntary deviate sexual intercourse, indecent assault, corrupting the morals of a minor, and endangering the welfare of a child.1 Appellant contends that he is entitled to a new trial since the [719]*719notes of testimony from a portion of his trial are permanently unavailable and he could not create “an equivalent picture” of what transpired during trial. We affirm.

On March 12, 2007, a jury convicted Appellant of numerous offenses in connection with his sexual assault of the minor victim, S.B.I. On August 3, 2007, Appellant, who was deemed to be a sexually violent predator for Megan’s Law purposes, was sentenced to an aggregate of eleven and one-half years to twenty-five years in prison. Appellant filed a timely post-sentence motion, which the trial court denied, and this timely appeal followed. On October 2, 2007, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and on October 23, 2007, Appellant sought an extension of time due to the unavailability of the trial transcripts. By orders entered on October 25, 2007, the trial court granted Appellant’s request for an extension of time and directed the court reporter to transcribe all notes of testimony. On September 12, 2008, the trial court filed an order directing Appellant to file a Pa.R.A.P. 1925(b) statement, and on October 3, 2008, indicating that counsel had not yet received all of the relevant notes of testimony, Appellant filed a petition for an extension of time. By Opinion filed on October 30, 2008, the trial court indicated that Appellant had received all relevant notes of testimony. However, on January 26, 2009, Appellant filed in this Court a petition seeking a remand due to the unavailability of notes from the first two days of Appellant’s jury trial (March 6 and 7, 2007). By order entered on February 13, 2009, this Court granted Appellant’s petition, directed the trial court to transcribe any missing notes of testimony, and directed Appellant to file a Pa.R.A.P. 1925(b) statement within twenty-one days of the receipt of all missing transcripts. On September 21, 2010, the court administrator for the lower court sent a letter to Appellant’s counsel indicating that the notes of testimony from March 7, 2007, which included the end of jury selection and the beginning of trial testimony, were permanently unavailable and the court reporter had resigned.

On December 1, 2010, Appellant filed a Pa.R.A.P. 1925(b) statement asserting: “Appellant is entitled to a new trial because he cannot effectively and meaningfully exercise his right to an appeal where the transcript of the first day of trial is missing and he cannot create an equivalent picture of what transpired during his trial.” 2 Additionally, on December 1, 2010, Appellant filed a Pa.R.A.P. 1923 “Statement in Absence of Transcript” indicating, in pertinent part, that Appellant’s trial counsel has no recollection of the details of the case and Appellant’s trial counsel’s file contains no trial notations. Thus, Appellant’s appellate counsel, indicating she was relying solely on the preliminary hearing transcript, asserted the following:

At trial, defense counsel, Mr. Vincent Corrigan, represented [Appellant]. ADA William Davis represented the Commonwealth. S.B.I. was the complaining witness in this matter. At the time of the preliminary hearing, she was ten years old. [Appellant] was her brother’s father. (N.T.3 6/3/05 at 7). They resided at 3856 Franklin Street in Philadelphia. (N.T. 10). S.B.I. testified that [Appellant] would use his penis to touch the inside of her mouth and her [720]*720buttocks. (N.T. 11). This would happen in her mother’s bedroom while her mother was at work. (N.T. 12).
On cross-examination, S.B.I. stated that at the time of the first assault her younger sister was present in their shared bedroom. (N.T. 18). S.B.I. stated that [Appellant] called her into her mother’s bedroom prior to the assault (N.T. 18) and told her that ‘my mom can’t teach me how to do this, and that other stuff.’ (N.T. 18). He unzipped his pants and put his penis in her mouth. (N.T. 20).
The Commonwealth’s objection was sustained when defense counsel attempted to question S.B.I. regarding the specifics of this alleged assault. See N.T. 21. S.B.I. indicated that this type of assault happened at least ten times. However, the fifth time he put his penis in her buttocks (N.T. 23-24). S.B.I. did not recall when this occurred or what time of day it occurred. She recalled that he told her to get down and pull down her pants. (N.T. 24). This alleged assault occurred an additional time, later on, although S.B.I. did not testify as to when.
The Commonwealth’s objection was sustained when defense counsel attempted to question S.B.I. regarding what she did after each of these events (N.T. 27).

Appellant’s Pa.R.A.P. 1923 Statement in Absence of Transcript filed 12/1/10 at 2-3 (footnote in original) (footnote omitted).

The Commonwealth filed a response to Appellant’s proposed Pa.R.A.P. 1923 statement indicating, in relevant part, the following:

[Appellant’s] proposed statement concerns the first day of trial, but appears to be based on the notes of the preliminary hearing. It does not follow, however, that any particular aspect of the examination of the victim during the first day of trial was identical, or even similar, to the examination of the victim at the preliminary hearing. The Commonwealth therefore submits two objections to the proposed statement as follows.
First, [Appellant] alleges that during cross-examination on the first day of trial this court sustained an objection by the Commonwealth ‘when defense counsel attempted to question [the victim] regarding the specifics of [the] alleged assault.’ Trial counsel for the Commonwealth does not recall such an event during the first day of trial. Further, [Appellant] fails to state the nature of, or basis for, the alleged objection, the court’s reason for allegedly sustaining it, or whether the facts [Appellant] sought to elicit were established by other testimony. For these reasons, the Commonwealth objects to the allegation.
Second, [Appellant] alleges that this court on the first day of trial sustained an objection by the Commonwealth ‘when defense counsel attempted to question [the victim] regarding what she did after each [sexual assault].’ Again, trial counsel for the Commonwealth does not recall such an event during the first day of trial. Also, and once again, [Appellant] fails to state the nature of, or basis for, the alleged objection, the court’s reason for allegedly sustaining it, or whether the facts [Appellant] sought to elicit were established by other testimony. For these reasons, the Commonwealth objects to this allegation as well.
This Court may of course have its own recollection of the events at issue, which the court is entitled to consider in resolving this matter. See Pa.R.A.P. 1923 (proposed statement and objections subject to the ‘settlement and approval’ of the trial court).

[721]*721Commonwealth’s Response to Appellant’s Pa.R.A.P. 1928 Statement in Absence of Transcript filed 12/10/10 at 1-2.

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Cite This Page — Counsel Stack

Bluebook (online)
32 A.3d 717, 2011 Pa. Super. 186, 2011 Pa. Super. LEXIS 2250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-harvey-pasuperct-2011.