Opinion
March 22, 1973.
June 14, 1973.
Appeals — Review — Affidavit as to after-discovered evidence — Affidavit not found by appellate court in record — Remand of case to obtain a complete record.
In this case, in which it appeared that defendant contended that after-discovered evidence should entitle him to a new trial; that in the briefs of the parties reference was made to an affidavit setting forth the reason the offered evidence was not available at the time of trial and the nature of the evidence and its materiality to defendant's defense; and that the appellate court searched the record and found no affidavit; it was Held, in the circumstances, that the case should be remanded to the lower court to obtain a complete record for purposes of appeal.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and SPAETH, JJ.
Appeal, No. 1390, Oct. T., 1972, from judgment of sentence of Court of Common Pleas of Montgomery County, Sept. T., 1969, No. 264, in case of Commonwealth of Pennsylvania v. Anthony Bonaduce. Case remanded.
Indictment charging defendant with burglary, larceny and conspiracy. Before VOGEL, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
James A. Lynch, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Submitted March 22, 1973.
Appellant contends that after-discovered evidence should entitle him to a new trial. In the briefs of the parties, reference is made to an affidavit setting forth: (1) the reason the offered evidence was not available at time of trial; and (2) the nature of the evidence and its materiality to appellant's defense.
We have searched the record and find no affidavit. Under the circumstances, we are unable to make a determination of the matter on the bare allegations of counsel. From the state of the record, we cannot decide if the criteria for the grant of a new trial because of after-discovered evidence, as set forth in Commonwealth v. Phillips, 183 Pa. Super. 377, 132 A.2d 733 (1957), have been satisfied.
We remand this case to the lower court to obtain a complete record for purposes of appeal.