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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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 posttrial 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