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COMMONWEALTH v. KULIK (01/17/66)

decided: January 17, 1966.

COMMONWEALTH
v.
KULIK, APPELLANT



Appeal from order of Superior Court, Oct. T., 1964, No. 592, affirming judgment of Court of Quarter Sessions of Bucks County, Nov. T., 1963. No. 44, in case of Commonwealth of Pennsylvania v. J. Tyler Kulik.

COUNSEL

W. Hamlin Neely, for appellant.

William J. Carlin, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts.

Author: Cohen

[ 420 Pa. Page 112]

J. Tyler Kulik was convicted of abortion. A motion for a new trial was denied and sentence was imposed. Thereafter an appeal was taken to the Superior Court. Following argument on the appeal before that court, petitions were filed wherein the appellant sought to raise in his appeal the additional question that the trial judge committed basic and fundamental error in a portion of his charge to the jury. The Superior Court allowed the filing of supplemental briefs on this point.

It appears that the original record as filed with the Superior Court shows in its typewritten portion that the trial court directed the jury as follows: "On the other hand, if you do have such reasonable doubt, it is equally your duty to render a verdict of guilty." It further appears that the trial judge in his own handwriting inserted the word "not" between the words "do" and "have" in that portion of his charge. The insertion by the trial judge was made sometime following

[ 420 Pa. Page 113]

    the lodging of the official stenographer's transcript of testimony.

This case presents the question of what action this Court should take when a trial judge alters the official stenographer's transcript of testimony without following the procedures provided for in the Act of May 11, 1911, P. L. 279, § 4, 12 P.S. § 1199. We have concluded that for the proper administration of the judicial system in this Commonwealth a trial judge must strictly adhere to the procedural requirements of the Act and that, therefore, a new trial must be granted to the appellant.

We feel confident that the trial judge's correction of the record was done in order to make the record consistent with the language he used in directing the jury. We are satisfied that the trial judge acted in complete good faith and with a desire to have the record correctly reflect the proceedings in the trial. This, however, goes only to the question of whether any harm was done to the appellant. We feel that regardless of whether appellant was prejudiced or not, the sanctity of the official stenographer's transcript of testimony is of such significance that we cannot allow even a non-prejudicial change of that transcript without following the procedure established by the Legislature. It is incumbent on this Court to establish and maintain the most stringent standards in this area.

Since the Act of May 11, 1911 sets forth the procedure that must be followed in order to correct the official stenographer's transcribed notes of testimony, after they have been lodged with the prothonotary or clerk, so as to make them comport with the occurrences at the trial, only by rigid adherence to those procedures can we be assured that the ...


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