J-S30013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DONATO RODRIGUEZ

                            Appellant                    No. 3291 EDA 2008


            Appeal from the Judgment of Sentence October 28, 2008
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0912651-2003


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 06, 2016

        Appellant, Donato Rodriguez, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial conviction for criminal conspiracy.1 We affirm.

        The trial court set forth the relevant facts of this case as follows:

           Appellant’s arrest stems from his involvement in the sale
           of 50 grams of [h]eroin to an undercover narcotics officer
           on September 25, 2003 in the city and county of
           Philadelphia. The investigation began on September 18,
           2003 when narcotics officer Luis Melendez…received
           information from a confidential informant that a man
           named “Alex” was selling [h]eroin [on] the 500 block of
           Indiana Street. The officer went to the location, met with
           a Dominican male calling himself Alex, (later identified as
           Luis Garvais) and agreed to purchase a bundle containing
           13 packets of [h]eroin for $100[.00]. [Mr.] Garvais told
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1
    18 Pa.C.S.A. § 903(a)(1).
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       Officer Melendez to drive his car around the corner, where
       he met him again, then walked out of sight back around
       the corner and returned with the [h]eroin. Using marked
       bills, or “buy money,” the plain clothes officer exchanged
       cash for narcotics then arranged a future buy at the “Lucky
       7” Bar. The contraband was placed on property receipt
       2479314.

       On September 23, [2003,] Officer Melendez again met with
       [Mr.] Garvais on the corner of Rohr and Indiana [S]treets
       outside of the Lucky 7 Bar, where the officer arranged to
       buy 10 bundles (130 packets) of [h]eroin from him for
       $800[.00]. After speaking to a male on a bicycle (later
       identified as Miguel Francisco), [Mr.] Garvais directed
       [Officer] Melendez to walk across the street to the bar and
       wait for him. There, the two talked about a bulk purchase
       of 50 grams for the price of $4000[.00], and as they
       negotiated the deal a mini-van pulled up next to them.
       [Mr.] Garvais exchanged the $800[.00] in buy money to
       an unidentified male in the van for narcotics, which he
       passed along to the officer. [Officer] Melendez arranged to
       meet again on the 25th, and left the area to meet with
       uniformed officers at an undisclosed location where he
       placed the narcotics on property receipt 2479316.

       At approximately 4:45 p.m. on September 25[, 2003,]
       Officer   Melendez    called  [Mr.]   Garvais to     make
       arrangements for the buy, and was told to drive to the 500
       block of Indiana Street, where they met and he was again
       directed to the Lucky 7 Bar. There, they renegotiated the
       terms of the deal, and [Mr.] Garvais asked [the] officer to
       drive him around so he could make a phone call. Inside
       the unmarked police car, [Mr.] Garvais used the officer’s
       cell phone to call “his man,” an unidentified male whose
       number the officer stored in his phone. [Mr.] Garvais
       relayed the terms of the deal to “his man” then told
       [Officer] Melendez everything was ok and he would call
       him back in fifteen minutes. The officer wrote his cell
       number on a piece of scrap paper and gave it to [Mr.]
       Garvais before dropping him off a few blocks from the
       Luck[y] 7 bar.

       [Officer] Melendez called his backup and informed them of
       the situation. After fifteen to twenty minutes of waiting,

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       [Mr.] Garvais called the officer back and told him to go
       back to the Lucky 7. The officer returned to [the] bar
       where [Mr.] Garvais introduced him to Appellant, who was
       skeptical of [Officer] Melendez and immediately began
       interrogating him in front of [Mr.] Garvais. Appellant
       asked the officer how long had he known “Alex” ([Mr.]
       Garvais), how [the officer] planned to cut the heroin, how
       he would break the heroin down and where would he sell
       it.   Officer Melendez, a certified expert on narcotics
       transactions, answered all of Appellant’s questions, then
       turned to [Mr.] Garvais and asked him what was wrong
       with Appellant. The officer then deftly accused Appellant
       of being a cop, and feigned concern that he was being set
       up to be robbed by both men because he was holding
       roughly $4000[.00].

       [Mr.] Garvais vouched for [Officer] Melendez in front of
       Appellant, and told him that [Officer] Melendez could be
       trusted, assuaging Appellant’s concerns. [Mr.] Garvais and
       Appellant then laughed and [Mr.] Garvais told [Officer]
       Melendez that Appellant was “his man” and asked the
       officer if he wanted to play pool. Appellant said something
       to Miguel Francisco (the male on the bicycle) and [Mr.]
       Francisco promptly left the bar.

       Concerned that [Mr.] Francisco might act as a look-out,
       [Officer] Melendez told Appellant and [Mr.] Garvais he had
       to use the bathroom, and went to warn his back-up
       officers. When he returned to the pool table, [Officer]
       Melendez again voiced concern to [Mr.] Garvais about
       being ripped off. Appellant responded that his product was
       pure and that he would personally guarantee it.

       With roughly one hour passing while the three men were in
       the bar, [Mr.] Garvais eventually exchanged 50 grams of
       [h]eroin with Officer Melendez for $4000[.00]. The officer
       left the bar and called back-up to converge on the bar and
       arrest everyone. The narcotics were placed on a property
       receipt.

       Inside the bar, officers arrested Appellant, [Mr.] Garvais,
       the bartender, and two older males in the bar. [Mr.]
       Garvais, upon seeing the officers enter the bar, threw a
       wad of the buy money onto the floor of the bar. He and

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          Appellant were placed into custody and searched upon
          arrest, and the money was recovered from the floor.
          Arresting officers recovered from Appellant $602[.00] in
          unmarked currency and a blue cell phone, and from [Mr.]
          Garvais they recovered $500[.00] in marked bills,
          $230[.00] in unmarked currency, and the scrap of paper
          that Officer Melendez had written his cell phone number
          [on]. The remaining $3500[.00] in marked currency was
          in the discarded wad recovered from the floor.

          When the arresting officers described the items recovered
          on [Mr.] Garvais and Appellant, Officer Melendez dialed the
          saved number that [Mr.] Garvais had previously dialed into
          [the officer’s] phone and used to set up the deal two days
          prior. The arresting officer answered from Appellant’s blue
          cell phone. All of the recovered cash, narcotics, and
          Appellant’s cell phone were placed on property receipts.

(Trial Court Opinion, filed September 9, 2011, at 2-5).

       Procedurally, on January 31, 2008, a jury convicted Appellant of one

(1) count of criminal conspiracy.              On September 11, 2008, the court

sentenced Appellant to a term of four (4) years’ probation. Appellant filed a

post-sentence motion, which the court granted on October 28, 2008,

resentencing Appellant to a term of two (2) years’ probation.2         Appellant

filed a timely notice of appeal on November 21, 2008. On April 3, 2009, the

prothonotary of this Court filed and sent a letter to the trial court regarding


____________________________________________


2
   The docket does not indicate when Appellant’s post-sentence motion was
filed, and no written motion is included in the certified record. Nevertheless,
the court’s October 28, 2008 order explicitly stated: “reconsideration of
sentence granted.” The court also indicated in its Pa.R.A.P. 1925(a) opinion
that it resentenced Appellant upon granting his motion for reconsideration of
sentence.



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the delinquency of the certified record.      In its opinion, the trial court

provided the following explanation for the delinquent record:

         Shortly after the trial concluded and the [c]ourt ordered
         [n]otes of [t]estimony, the reporter assigned to the trial
         resigned from the First Judicial District and moved to
         Colorado without leaving a forwarding address. There
         were no digital reproductions made and the physical notes
         themselves were rendered unreadable due either to the
         deterioration of the ink used, or improper use of the
         lettering machine which left the paper sheets themselves
         illegible.

         Subsequent attempts to contact the reporter failed,
         unfortunately, and the reporter died before any successful
         attempt to have her re-create the notes could be
         attempted.

(Trial Court Opinion at 1-2).   In lieu of the trial transcript, on March 16,

2011, the court ordered Appellant to file within fourteen days a proposed

statement in absence of transcript pursuant to Pa.R.A.P. 1923, and a

proposed statement of record per Pa.R.A.P. 1924.         The orders also (1)

directed trial counsel to assist appellate counsel in preparing the statements,

if necessary; and (2) directed the Commonwealth to file any objections

and/or proposed amendments within ten days of receiving Appellant’s

proposed statements.    On March 25, 2011, trial counsel filed and sent a

letter to the court indicating he could not accurately recall the facts of

Appellant’s case because of the length of time that had passed since the

trial. Counsel also stated Appellant was unavailable for an interview because

he had recently been sentenced to federal prison on new charges of

distribution of a controlled substance. Appellant did not file a Rule 1923 or

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Rule 1924 statement.         On September 9, 2011, the trial court issued its

opinion, in which it relied on its own notes to recreate the factual record and

address the issues raised in Appellant’s post-trial motions.3

       Appellant raises the following issue on appeal:

          IS APPELLANT ENTITLED TO A NEW TRIAL BECAUSE HE
          CANNOT EFFECTIVELY AND MEANINGFULLY EXERCISE HIS
          RIGHT TO AN APPEAL WHERE THE NOTES OF TESTIMONY
          ARE UNAVAILABLE AND AN EQUIVALENT PICTURE OF
          WHAT TRANSPIRED AT TRIAL CANNOT BE RECREATED BY
          NEWLY APPOINTED COUNSEL[?]

(Appellant’s Brief at 7).

       Appellant argues he cannot properly exercise his right to an appeal

because the notes of testimony from trial are unavailable, and he is unable

to create an equivalent account of the proceedings.      Appellant asserts the

court reporter’s physical notes of testimony were illegible, and no digital

reproductions were produced. Appellant avers the reporter resigned shortly

after the trial, moved to Colorado without leaving a forwarding address, and

died before any contact could be made to recreate her notes.         Appellant

contends any attempt to retrieve notes from the trial court judge would be

futile because the judge retired in 2012 and was subsequently convicted of

criminal charges.      Appellant claims his effort to retrieve notes from trial

counsel was fruitless because counsel had little to no memory of the case.
____________________________________________


3
  The court’s opinion indicates Appellant raised the following issues in post-
trial motions: (1) sufficiency of the evidence; (2) weight of the evidence;
and (3) improper jury instructions.



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Appellant submits he complied with Rule 1923 because he tried to recreate

an equivalent picture of the trial proceedings but was unable to do so under

the circumstances. Appellant concludes this Court should grant him a new

trial. We disagree.

      “In order to assure that a defendant’s right to appeal will not be an

empty, illusory right, we require that he…be furnished a full transcript or

other equivalent picture of the trial proceedings.”      Commonwealth v.

Shields, 477 Pa. 105, 108, 383 A.2d 844, 846 (1978).          “The burden of

obtaining transcripts from the proceedings falls squarely on the appellant.”

Commonwealth v. Harvey, 32 A.3d 717, 721 (Pa.Super. 2011), appeal

denied, 614 Pa. 701, 37 A.3d 1194 (citing Pa.R.A.P. 1911(a)). Pennsylvania

Rule of Appellate Procedure 1923 governs the situation in which a trial

transcript is unavailable:

         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 on
         appeal.

Pa.R.A.P. 1923.    “The theory that underlies Rule 1923 is that a verbatim

transcript of proceedings is not necessarily a condition precedent to

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meaningful appellate review, so long as the appellate court has an

‘equivalent picture’ of what happened at trial.” Harvey, supra at 721.

        [A]ppellate counsel is required to prepare a statement of
        the missing evidence from the best available means. …
        [T]he information necessary to prepare a statement in
        absence of transcript can come from any of the parties
        who were present, including the trial judge, witnesses, the
        trial prosecutor, defendant’s trial attorney, and defendant.

Id. at 722.

     Pennsylvania Rule of Appellate Procedure 1924 provides as follows:

        Rule 1924. Agreed Statement of Record

        In lieu of the record on appeal as defined in Rule 1921
        (composition of record on appeal), the parties may prepare
        and sign a statement of the case showing how the issues
        presented by the appeal arose and were decided in the
        lower court and setting forth only so many of the facts
        averred and proved or sought to be proved as are essential
        to a decision of the issues presented. If the statement
        conforms to the truth, it, together with such additions as
        the lower court may consider necessary fully to present
        the issues raised by the appeal, shall be approved by the
        lower court and shall then be certified to the appellate
        court as the record on appeal and transmitted thereto by
        the clerk of the lower court within the time prescribed by
        Rule 1931 (transmission of the record). Copies of the
        agreed statement and the order from which the appeal is
        taken may be filed as the reproduced record.

Pa.R.A.P. 1924.

     A new trial may be granted if the unavailability of a trial transcript

makes meaningful appellate review impossible and the defendant is free

from fault.   Commonwealth v. Burrows, 550 A.2d 787, 788 (Pa.Super.

1988), appeal denied, 522 Pa. 617, 563 A.2d 886 (1989). Further, “To be


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entitled to relief due to the incompleteness of the trial record[,] the

defendant must make some potentially meritorious challenge which cannot

be   adequately   reviewed    due   to   the   deficiency   in   the   transcript.”

Commonwealth v. Albrecht, 554 Pa. 31, 47, 720 A.2d 693, 701 (1998).

      Instantly, a jury convicted Appellant of criminal conspiracy on January

31, 2008.    The court sentenced Appellant on September 11, 2008, and

modified and reduced the sentence on October 28, 2008. Appellant filed his

notice of appeal on November 21, 2008, and requested transcripts; but no

trial transcripts were included in the certified record because the court

reporter’s notes of testimony were illegible, and she had moved out of state

and died before anyone was able to contact her.          On April 3, 2009, the

prothonotary of this Court filed and sent to the trial court a letter indicating

the record was delinquent.      For the next two years, Appellant made no

attempt to recreate the record of the trial proceedings by other means. On

March 16, 2011, the trial court ordered Appellant to file statements pursuant

to Pa.R.A.P. 1923 and Pa.R.A.P. 1924.       In response to the court’s orders,

trial counsel stated his memory of the case had faded; and he was unable to

recall any details other than the verdict and date of sentencing. Appellant,

however, had over two years since filing a notice of appeal to enlist the help

of trial counsel to recreate the missing parts of the record. Appellant bears

responsibility for his lengthy delay in seeking trial counsel’s assistance.

      Further, Appellant had other potential sources of information he could


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have relied on to prepare a Rule 1923 or Rule 1924 statement, including the

trial judge, prosecutor, witnesses, and Appellant’s own recollection of the

trial.   Nevertheless, Appellant made no effort to use those resources. For

instance, without explanation, Appellant dismisses the district attorney’s

office as a source of any accurate information of what occurred at trial.

Appellant failed to satisfy his duty to create a statement in absence of

transcript from the best available means, including his own recollection.

See Pa.R.A.P. 1923; Harvey, supra. Likewise, Appellant failed to prepare a

proposed statement of record under Pa.R.A.P. 1924. Thus, to the extent the

certified record is deficient due to missing notes of testimony, Appellant is

not free from fault.    See Burrows, supra.      Additionally, the trial court’s

opinion included a detailed factual history derived from its notes at trial, and

Appellant makes no objection to its accuracy.

         Moreover, Appellant’s brief addresses only the issue of the missing

trial transcript.   Appellant raises no claim of error with respect to the

proceedings or outcome of the trial. Therefore, Appellant also fails to meet

the requirement that he raise a potentially meritorious challenge that cannot

be adequately reviewed due to the deficiency of the record. See Albrecht,

supra.       Based on the foregoing, Appellant is not entitled to relief.

Accordingly, we affirm.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2016




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