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COMMONWEALTH v. STEWART (09/18/70)

decided: September 18, 1970.

COMMONWEALTH
v.
STEWART, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1962, Nos. 2631 and 2633 to 2636, inclusive, in case of Commonwealth v. James R. Stewart, Jr.

COUNSEL

David I. Grunfeld, for appellant.

James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 218 Pa. Super. Page 39]

This is an appeal, nunc pro tunc, from the judgment of sentence of the Court of Common Pleas, Trial Division, of Philadelphia, by the defendant-appellant, James R. Stewart, Jr., after conviction of larceny and forgery on March 1, 1963; and from the denial of a new trial, nunc pro tunc.

The defendant, on March 5, 1963, was found guilty on five bills of indictment and sentenced to not less than 2 1/3 years nor more than 10 years in prison.

On March 16, 1969, leave was granted by Judge Sloane to file post-trial motions, nunc pro tunc, and after appeal to this Court it was remanded for hearing. After post-conviction hearing before Judge Gold, the motion for a new trial was denied. Two arguments were pressed below and now are pressed here: (1) Admission of a statement allegedly made by the defendant

[ 218 Pa. Super. Page 40]

    in the form of an admission that he signed the checks in question was error because he had not been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. ed. 2d 694, 86 S. Ct. 1602 (1966). (2) The failure of the court to have the charge transcribed is an effective denial of defendant's post-trial remedies.

The defendant relied on Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968), in which the Pennsylvania Supreme Court held Miranda applicable to a situation involving a tacit admission where the case was not finalized as of the date Miranda was announced. So in Little, Miranda was applied to a nunc pro tunc appeal as the defendant contends for in the instant case. See also, Commonwealth v. Gist, 433 Pa. 101, 249 A.2d 351 (1969); Commonwealth v. Wetzel, 214 Pa. Superior Ct. 536, 257 A.2d 310 (1969).

However, in Jenkins v. Delaware, 395 U.S. 213, 23 L. ed. 2d 253, 89 S. Ct. 1677 (1969), the majority opinion by Mr. Chief Justice Warren held that in view of the "justifiable reliance of law enforcement officials" on pre-existing constitutional standards pertaining to criminal procedure, and in view of "society's interest in the effective prosecution of criminals in light of the protection [that such standards] afford[ed] criminal defendants", the constitutional principles announced in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974 (1966), holding that in the absence of intelligent waiver of the constitutional rights involved, confessions and other statements obtained through custodial interrogation are inadmissible in a criminal trial where the accused has not been informed of his right to counsel, and of his right to remain ...


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