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COMMONWEALTH v. ANDERSON (09/11/69)

decided: September 11, 1969.

COMMONWEALTH
v.
ANDERSON, APPELLANT



Appeal from order of Criminal Courts of Chester County, Sept. T., 1966, No. 499, in case of Commonwealth of Pennsylvania v. Charles E. Anderson.

COUNSEL

William J. Gallagher, for appellant.

William Butler, 4th, Assistant District Attorney, and Norman J. Pine, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Spaulding, J. Hoffman and Cercone, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 215 Pa. Super. Page 148]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Spaulding, J.:

I respectfully dissent.

In February 1967 appellant Charles E. Anderson was convicted by a jury of assault with intent to kill and violation of the Uniform Firearms Act. At trial, neither defense counsel nor the Commonwealth requested stenographic recording of the notes of testimony and no record of the trial exists. This appeal is to determine whether the failure of appellant's trial counsel to request that the testimony at appellant's trial be recorded amounts to ineffective representation.

In the court below, appellant presented a post-conviction petition in which he contended (1) he had been denied the right to appeal and (2) the failure of counsel to request notes was constitutionally ineffective assistance. The court held against appellant on the ineffective representation claim but granted the right to file post-trial motions nunc pro tunc after finding a denial of the right to appeal. Appellant contends that the court erred in not granting relief in the form of a new trial.

The right of a criminal defendant to have the trial proceedings stenographically reported is provided in the Act of May 5, 1911, P. L. 161, 17 P.S. ยง 1802. The Commonwealth, in asserting that the failure to transcribe the testimony does not entitle appellant to a new trial, relies upon Commonwealth ex rel. Turk v. Ashe, 167 Pa. Superior ...


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