Com. v. Shields

• Decision Date: 23 March 1978
• Citation: 477 Pa. 105,383 A.2d 844
• Parties: COMMONWEALTH of Pennsylvania v. Alexander SHIELDS, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 844

383 A.2d 844

477 Pa. 105

COMMONWEALTH of Pennsylvania v. Alexander SHIELDS, Appellant (two cases).

Supreme Court of Pennsylvania.

Submitted Nov. 18, 1976.

Decided March 23, 1978.

[477 Pa. 107] Robert M. Fellheimer, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

MANDERINO, Justice.

Appellant, Alexander Shields, was tried by a jury and convicted of murder of the second degree, statutory rape, and involuntary sexual intercourse. Post-verdict motions were denied. The homicide conviction was appealed directly to this Court. The other convictions were properly certified to this Court by the Superior Court.

Appellant raises five issues on appeal: (1) that his confessions should have been suppressed because they were made subsequent to an arrest without probable cause and because appellant was incapable of making a knowing and intelligent waiver of his Miranda rights; (2) that he was improperly denied a continuance for the purpose of obtaining new counsel; (3) that the prosecutor was permitted over-broad cross-examination when appellant took the stand to challenge the voluntariness of his confessions; (4) that an effective appeal has been denied because of the loss of a portion of the trial transcript; and (5) that certain of appellant's points for charge were improperly denied.

Because we agree with appellant that the loss of a crucial portion of the trial transcript renders effective review in our Court impossible, we reverse the judgments of sentence and grant appellant a new trial. We therefore do not consider the other issues raised.

The prosecution concedes that the tapes of the prosecutor's closing argument to the jury were lost in the mail and never transcribed. The prosecution also admits that the court had ordered that all notes be transcribed. Defense counsel has consequently had no record of the closing remarks of the prosecutor for use in making post-verdict motions or for pursuing an appeal. Likewise, we have been denied opportunity to review alleged improprieties in the prosecutor's summation.

In order to assure that a defendant's right to appeal will not be an empty, illusory right, we require that he or she be furnished a full transcript or other equivalent picture of the trial proceedings. Meaningful appellate review is otherwise an impossibility, and fairness dictates that a new trial be granted. Commonwealth v. Goldsmith, 452 Pa. 22, 25, 304 A.2d 478, 480 (1973); Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972); Commonwealth v. Norman, 447 Pa. 515, 291 A.2d 112 (1972); Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 879 (1971); Commonwealth v. Banks, 428 Pa. 571, 237 A.2d 339 (1968) (dissenting opinion of Roberts, J., joined by Eagen, J.).

In the instant case no blame for the absence of a transcript may be ascribed to the appellant. The prosecution so concedes in its brief. "If a meaningful appellate review is impossible, for whatever reason, and the appellant is not at fault, he is entitled to a new trial." Commonwealth v. Goldsmith, supra, 452 Pa. at 25, 304 A.2d at 480 (1973). (Emphasis in original.)

The prosecution contends that appellant is not entitled to relief because defense counsel has not "specifically quoted or even described" the remarks which he found prejudicial. The prosecution's argument begs the question: If appellant could specifically quote or describe the alleged prejudicial portions of the closing argument, and assuming that the prosecution accepted the defense's version, there would be no need for the missing portion of the transcript to insure meaningful appellate review. The prosecution is in effect contending that defense counsel has not presented an "equivalent picture" of the prosecution's summation. The burden, however, is upon the prosecution, not the defendant, to make available a full record or its equivalent. Commonwealth v. Goldsmith, supra; Commonwealth v. Anderson, supra. Neither in the trial court nor before this Court has the prosecution made any attempt to provide an equivalent picture.

Moreover, defense counsel had no reason to expect that he would have to prove from his own notes any objectionable remarks made by the prosecution or any objections he timely raised. Counsel was justified in relying upon the record to disclose prejudicial material and to preserve his objections. When the record became unavailable, through no fault of the defendant, the prosecution had the responsibility to reconstruct a meaningful record in its place.

Defense counsel asserts that the closing argument did in fact contain prejudicial remarks and that he made timely objections. This has not been contradicted. The judge, in his opinion, stated that had the prosecutor made prejudicial remarks, the Court would have noted them. Thus he, too, would have us infer from a lack of proof that nothing objectionable occurred. Yet we note that he, like defense counsel, knowing that a full transcript was to be provided, did not have to be taking notes upon which he could rely.

As explained by Justice Douglas, citing Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn.L.Rev. 783, 792, 793 (1961) and quoted in Commonwealth v. Anderson, supra, 441 Pa. 484, 488, 272 A.2d 877, 879:

"Recollections and notes of trial counsel and of others are apt to be faulty and incomplete. Frequently, issues simply cannot even be seen let alone assessed without reading an accurate transcript."

Neither judge nor prosecutor has offered us any affirmative suggestion as to the content of the prosecutor's summation. In Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), quoted in Commonwealth v. Anderson, supra, 441 Pa. 483 at 487, 272 A.2d 879, Justice Goldberg enumerated some alternatives to the transcript:

"Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes or a bystander's bill of exceptions might all be adequate substitutes . . . ." 372 U.S. at 495, 83 S.Ct. at 779, 9 L.Ed.2d at 905.

The suggestion that defense counsel's inability to provide us with prejudicial quotes shows that no prejudicial remarks were made is a meager offering which falls far short of meeting the requirement that the prosecution supply an equivalent picture of the trial.

Two days after the verdict, defense counsel filed post-verdict motions, specifically reserving the right to file additional reasons upon his receipt of the transcript. In his supplemental brief he stated that, although he had received most of the record, he did not have the notes of the prosecutor's closing speech because they had not yet been transcribed. He alleged that the summation contained several inflammatory statements necessitating a new trial, but stated his inability to make accurate quotes thereof because of the unavailability of that portion of the transcript. Thus, he did not waive any issue as to prejudicial statements in the summation, and the very matter complained of here unavailability of the record precluded specificity in his objections.

Inasmuch as he did raise the issue of prejudice in the closing argument, and did then plainly state that the record had not yet been transcribed, he can hardly be said to have waived the issue he now raises. Counsel cannot have been expected to argue the loss of a transcript in the Commonwealth's possession and control until made aware of the mishap.

Although the missing portion of the transcript may be a small part of the record, it is a crucial portion indeed. Prejudicial comment by the prosecutor has long been a specific ground for reversal in this Commonwealth if the language of the prosecutor is such that,

"its unavoidable effect could be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant, so that they could not fairly weigh in his behalf such circumstances of doubt, extenuation, or degree of guilt that may be present in the case, and thus make them unable to render a true verdict." Commonwealth v. Hoffman, 439 Pa. 348, 355, 266 A.2d 726, 730 (1970); Commonwealth v. Meyers, 290 Pa. 573, 575, 139 A. 374, 377 (1927).

Defense counsel has alleged that such remarks were made, and the prosecution has provided us with no record of any kind from which we can assess the merits of his contention. We are thus precluded from affording appellant a meaningful review of a crucial portion of his trial, and must therefore grant him a new trial.

Judgments of sentence reversed and a new trial granted.

ROBERTS, J., joins in this opinion and files a concurring opinion.

POMEROY, J., filed a dissenting opinion in which LARSEN, J., joined.

NIX, J., dissents.

ROBERTS, Justice, concurring.

I join in the opinion of the Court and note that today's decision repudiates Commonwealth v. Banks, 428 Pa. 571, 237 A.2d 339 (1968), cert. denied, 393 U.S. 895, 89 S.Ct. 156, 21 L.Ed.2d 177 (1968), which, by per curiam order, refused to award a new trial to an appellant alleging trial error although no transcript of the trial existed. As I stated in my dissent in Banks, denying a new trial in such circumstances would "fly in the face of (the) controlling . . . principles enunciated in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, (9 L.Ed.2d 811) (1963) and Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366, (10 L.Ed.2d 456) (1963)." Commonwealth v. Banks, supra at 571, 237 A.2d at 339-340 (dissenting opinion of Roberts, J., joined by Eagen, J. (now C. J.)). It is regrettable...