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COMMONWEALTH v. DESIMONE (03/19/70)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 19, 1970.

COMMONWEALTH
v.
DESIMONE, APPELLANT

Appeal from order of Court of Oyer and Terminer of Fayette County, Sept. T., 1940, Nos. 6/106, in case of Commonwealth of Pennsylvania v. John DeSimone.

COUNSEL

William J. Franks, for appellant.

A. J. Kuzdenyi, First Assistant District Attorney, and Joseph E. Kovach, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 216 Pa. Super. Page 213]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant was tried in 1940 before a judge and jury. In 1967, he filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยง 1180, alleging ineffective assistance of counsel. A hearing was held, at which it was shown that counsel failed to request the stenographic recording of the trial proceedings. Despite this showing,

[ 216 Pa. Super. Page 214]

    the PCHA court denied appellant's petition. This appeal followed.

This case is governed by Judge Spaulding's dissent in Commonwealth v. Anderson, 215 Pa. Superior Ct. 147, 256 A.2d 868 (1969), in which Judge Cercone and I joined. Judge Spaulding said:

"Notes of testimony are essential for post-trial or appellate review. Without a record, no reviewing court can determine whether trial errors were committed or whether the evidence supported the verdict. Consequently, as it effectively forecloses all future review, failure to request stenographic recording of trial proceedings is tantamount to a decision before trial that no appeal will be taken. No reasonable basis for trial counsel's action has been advanced here by the Commonwealth nor is any conceivable. I conclude that appellant was deprived of constitutionally effective assistance of counsel." Id. at 151.

I would reverse the order of the lower court and grant a new trial.

19700319

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