Concurring Opinion by
Mr. Justice Roberts:I join in the majority opinion for the reasons stated therein as well as for those reasons stated in my dissenting opinion in Commonwealth v. Banks, 428 Pa. *30571, 237 A. 2d 339 (joined by Eagen, J.), cert. denied, 393 U.S. 895, 89 S. Ct. 156 (1968).
In joining, I note that this case is not in conflict with Norvell v. Illinois, 373 U.S. 420, 83 S. Ct. 1366 (1963), and reliance upon that holding here would be misplaced. “All that Norvell held was that a state, without violating the due process or equal protection clauses, may refuse to give a prisoner a new trial when no transcript of the trial is available if the prisoner knowingly and intelligently waived his Douglas rights of appeal. For when a defendant has knowingly and intelligently waived his right of appeal, whether a transcript of Ms trial is available is irrelevant, for he has waived Ms right to assert any claims which he could have raised on direct appeal.” Commonwealth v. DeSimone, 447 Pa. 380, 385, 290 A. 2d 93, 96 (1972) (emphasis added) (footnotes omitted).1
Here, the Post Conviction Hearing Act court affirmatively found that appellant had been denied Ms appellate rights as guaranteed by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). Thus, it has already been adjudicated (and is not now challenged) that appellant, unlike Norvell, has teen denied the assistance of counsel on appeal. TMs, then, is the “different case” not governed by Norvell. “If it appeared that the lawyer who represented petitioner at the trial refused to represent him on the appeal and petitioner’s *31indigency prevented Mm from retaining another, we would have a different case. Cf. Douglas v. California, . . .” Norvell at 422-23, 83 S. Ct. at 1368 (emphasis added). Here, such a Douglas denial did result. Thus, the presumption relied upon in Norvell, “. . . that he who had a lawyer at the trial had one who could protect his rights on appeal ,”2 is not applicable here, gee Banks, supra (dissenting opinion). “The grant of Douglas relief indicates that [appellant] was deprived of assistance of counsel for appeal; this is the identical deprivation which prevented [appellant] from tailing any action to compel the stenographer to transcribe his notes. Under the Constitution, this Court may not with one breath tell an indigent defendant that because of his indigency he was denied assistance of counsel for purposes of appeal and in the same breath insist that it will deprive him of the very means necessary to effectuate his unconstitutionally denied right, i.e., a trial transcript.” Banks, supra at 575, 237 A. 2d at 341 (dissenting opinion).
Moreover, Norvell mandates the result our Court has reached for the additional reason that the unavailability of appellant’s trial transcript is due to the fault of the Commonwealth.3 Our statute, unlike the Illinois statute involved in Norvell, makes it mandatory that the notes of testimony in a murder conviction be immediately transcribed “'without any order of the court ” “If the fault must be assessed against a party in this litigation, then the Commonwealth must bear the blame. The Act of May 1, 1907, P. L. 135, §7, 17 P.S. §1809, in language which is unmistakable, makes it mandatory for the court stenographer in a capital case to transcribe and file the notes of testimony: ‘[I]n any case ... of conviction of murder in the first degree, it shall he the duty of the official stenographer forth*32■with, to make, certify, and file of record a typewritten, copy of the stenographic notes of trial, without any order of the court; ...’ (Emphasis supplied. ) Furthermore, it cannot be said that appellant himself should have taken steps to insure that the stenographer performed his statutory duty.” Banks, supra at 573, 237 A. 2d at 340 (dissenting opinion).
Even a cursory reading of Norvell makes it abundantly clear that the absence of fault on the part of the state was a controlling factor in the Court’s opinion. That factor, however, in view of our statute (noted above), is absent here.
In light of DeSimone, supra, which requires the retroactive application of Commonwealth v. Anderson, 441 Pa. 483, 272 A. 2d 877 (1971) (requiring a transcript or “equivalent picture” of trial), this Court has reached the result required by our prior case law.
“More prescisely, the question is whether when a transcript cannot subsequently be obtained or reconstructed through no fault of the State, may it constitutionally draw the line against indigents who had lawyers at their trial but after conviction did not pursue their remedy f . . . And so we have the narrow question—whether a State may avoid the obligation of Griffin v. Illinois, where, without fault, no transcript can be made available, the indigent having had a lawyer at the trial and no remedy having been sought at the time." Norvell v. Illinois, 373 U.S. 420, 422, 83 S. Ct. 1366, 1368 (3963) (footnote omitted) (emphasis added).
373 U.S. at 424, 83 S. Ct. at 1369.
See note 1, supra.