Commonwealth v. Lesko

ORDER

PER CURIAM.

The Application for Reargument is denied.

The matters raised by appellant as pending before the United States Supreme Court have already been fully considered by this Court, either during appellant’s direct appeal or his post conviction proceeding.

With respect to counsel’s contention that this Court considered matters outside the record in determining the “appropriateness or proportionality” of the death sentence, we first remind counsel that the transcript of the trial is not the whole record. Our present recitation of the facts, which does not differ from the statement by this Court on direct appeal, was drawn from the record and presented to provide a complete picture of the events which occurred. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983).

Moreover, the facts taken from the suppression record were not and could not be considered by us in dealing with the proportionality issue. In considering the proportionality of appellant’s sentence, this Court looked only at the mitigating and aggravating circumstances which were considered by the jury in reaching its decision. These factors, all of which were part of the trial transcript, were sufficient for us to determine that appellant’s sentence was not disproportionate to the penalty imposed in similar cases. See Commonwealth v. Travaglia, 502 Pa. at 504-05, 467 Pa. at 303-04.

FLAHERTY, J., did not participate in the consideration or decision of this case.