concurring and dissenting:
I agree with the majority’s disposition of the appeal from No. 608, but I suggest that the remedy chosen in the appeal from No. 607 is both inappropriately drastic and quite unnecessary.
There well may be reasons why “the lower court cannot comply with our requests and the mandate of Superior Court Rule 50,” Majority Opinion 247 Pa.Super. at 192, 372 A.2d at 3, i. e. to forward us a transcript of the notes of testimony at trial. However, there is nothng in the record to show either that there are such reasons, or what they are. In these circumstances, the majority’s decision to order a new trial penalizes the prosecution, which may losé the new trial, when, for all we can tell from the record, the fault lies not with the prosecution but with the lower court.
This is not a case like Commonwealth v. Goldsmith, cited by the majority. There, trial counsel made repeated requests but never received a full transcript; substantial and pertinent portions of the testimony were never transcribed because the stenographer became ill and later died, and other stenographers were unable to transcribe the notes of the deceased stenographer. Nor is this case like Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972); there, no “equivalent ‘picture’ of what transpired below,” Commonwealth v. Anderson, 441 Pa. 483, 493, 272 A.2d 877, 882 (1971), could be reconstructed, because the judge who presided at the trial was dead, defense counsel no longer was practicing in the Commonwealth, the prosecutor testified that he had no independent recollection of the case, and the judge’s court reporter testified that she did not recall whether or not she was present at the trial.
Goldsmith and DeSimone involved appeals from PCHA proceedings, which explains how the Supreme Court knew *199why transcripts were not available. The present case is on direct appeal. This distinction, however, does not compel the majority’s result. By analogy to the procedure used when a claim of ineffective trial counsel is raised on direct appeal, Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975), we could remand for a hearing at which an attempt could be made to reconstruct the record. If reconstruction were not possible, as in DeSimone, the hearing would tell us why.
This suggested procedure would be necessary only if the lower court is unable to have the notes of testimony transcribed. Accordingly, I would remand for completion of the record by addition of the notes, with the alternative that if that were not possible, the suggested procedure should be followed.
HOFFMAN and PRICE, JJ., join in this opinion.