Appeal from order of Court of Oyer and Terminer of Lancaster County, Dec. T., 1947, No. 137, in case of Commonwealth of Pennsylvania v. Henry H. Banks.
S. R. Zimmerman, III, for appellant.
Wilson Bucher, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this dissenting opinion.
Dissenting Opinion by Mr. Justice Roberts:
Not only does the majority's disposition of this appeal fly in the face of controlling United States Supreme Court cases, but in a matter of first impression for this Court it owes both the Bench and Bar, as well as appellant Banks, more than a cryptic "Per Curiam: Order affirmed." We are here confronted with a factual situation calling for a re-examination of the status of our cases dealing with untranscribed records in criminal cases in light of the principles enunciated in Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963) and Norvell v. Illinois, 373 U.S. 420, 83 S. Ct. 1366 (1963).
Henry H. Banks was convicted after a 1948 trial by jury of murder in the first degree and sentenced to life. His first attempt at collateral relief was unsuccessful.*fn1 See Commonwealth ex rel. Banks v. Myers, 423 Pa. 124, 222 A.2d 880 (1966). A petition under the Post Conviction Hearing Act was then filed, counsel appointed and a hearing held. At the conclusion of this hearing, the hearing judge determined that the mandate of Douglas v. California, supra, had been violated and accordingly granted appellant the right to file a motion for new trial nunc pro tunc.*fn2 These new trial motions were denied*fn3 primarily because no transcript of appellant's trial was available -- the court stenographer was dead and the notes could not be transcribed. This appeal was then perfected.
The Commonwealth cites a plethora of cases to support the proposition that a new trial is not necessary merely because the ...