Com. v. Rivera

• Decision Date: 22 February 1985
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Felix Berrios RIVERA, Appellant.
• Court: Pennsylvania Superior Court

Page 642

488 A.2d 642

339 Pa.Super. 242

COMMONWEALTH of Pennsylvania, Appellee, v. Felix Berrios RIVERA, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 16, 1984.

Filed Feb. 22, 1985.

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

Gary E. Hartman, Dist. Atty., Gettysburg, for Commonwealth, appellee.

Before SPAETH, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, JOHNSON, POPOVICH and CERCONE, JJ.

PER CURIAM:

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 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. ¹ Under these 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 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, 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.

CIRILLO, Judge, dissenting:

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

Such pertinent quotations of specific portions of the record, or summary thereof, with specific reference to the places in the record where the matter appears (e.g. ruling of exception thereto, etc.) as will show that the question was timely and properly raised below so as to preserve the question on appeal.

Where the portions of the record relied upon under this subdivision are voluminous, they shall be included in an appendix to the brief, which may, if more convenient, be separately presented.

Pa.R.App.P. 2119(c) provides that:

Reference to record. If reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears (see Rule 2132) (references in briefs to the record).

(Emphasis supplied).

These rules do not apply at the option of a party. If they did the consequence of non-compliance would be the result the majority suggests in this case. Whenever appellant deemed it beneficial to present a bald assertion of insufficiency of the evidence, or any other claim, the record and any reference to it would be omitted. The appellate court would be unable to rule in its absence and the case would be remanded for completion of the record without prejudice to appellant. This result would nullify the express mandate of the Pennsylvania Rules of Appellate Procedure.

In an analogous situation, President Judge Spaeth opined in Commonwealth v. Rozanski, 289 Pa.Super. 531, 546, 433 A.2d 1382, 1390, (1981) that:

Appellant also argues that the prosecutor engaged in inflammatory conduct by repeatedly playing the tape recording of appellant's message to St. Stephen's Church. Brief for appellant at 22. There is no merit to this argument either. As we have discussed, this evidence was properly admitted. In any event, this objection has been waived because appellant has failed to cite to the record, advising us either at what point in the trial the asserted objectionable use of the evidence occurred, or in what manner his objection was preserved for appellate review. See, Pa.R.A.P. 2117(c)(4).

(Emphasis supplied).

Likewise, in the instant case, appellant's failure to comply with Pa.R.App.P. 2117(c)(4) renders his objection waived.

In Commonwealth v. Gigli, 287 Pa.Super. 347, 350, 430 A.2d 319, 320 (1981) in a per curiam order of the Court, a panel which was comprised of President Judge Spaeth, Judge Wickersham, and Judge Lipez, appellant's brief was found to be inadequate for non-compliance with the rules of appellate procedure and the appeal dismissed. In cases such as these, a remand would not be in the interest of judicial economy.

Appellant argued that the evidence was insufficient to support a conviction for recklessly endangering another, or simply that the weapon used during the commission of the crime was incapable of being fired. The argument made no reference to the record.

Where reference is made to the evidence, appellant must set forth at least a reference to the place in the record where the matter complained of appears, Pa.R.App.P. 2119(c), and show that the question was timely and properly raised in the trial court so as to preserve the question for review, Pa.R.App.P. 2117(c)(4). The burden is on the appellant to comply with the rules of procedure. If he chooses not to comply, he must accept the consequences of his voluntary non-compliance.

The second issue raised by appellant does not rely on an incomplete record. It concerns the charge to the jury and we find the contention to be without merit. The charge in question was followed by an unequivocal instruction that the jury was to make a factual determination as to the robbery. We would therefore affirm the trial court with respect to the second issue.

JOHNSON, Judge, dissenting:

I join in the Dissenting Opinion of my colleague, Judge Cirillo, and write separately to expand upon the reasons why I believe the judgment of sentence should be affirmed.

Appellant, Felix Berrios Rivera, raises...