Appeal from order of Superior Court Oct. T., 1969, No. 262, affirming the judgments of Criminal Courts of Chester County, Sept. T., 1966, No. 499, in case of Commonwealth of Pennsylvania v. Charles E. Anderson.
William J. Gallagher, for appellant.
William Butler, 4th, Assistant District Attorney, and Norman J. Pine, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Jones concur in the result. Mr. Justice Cohen took no part in the decision of this case.
On February 23, 1967, Charles E. Anderson was convicted by a jury in Chester County of assault and battery with intent to kill, and violation of the Uniform Firearms Act. A prison sentence was imposed immediately following the jury's verdict. No appeal was then filed. Throughout the foregoing proceedings, Anderson was represented by court-appointed counsel.
In May 1968, Anderson sought post-conviction relief alleging: (1) denial of his " Douglas " rights; and (2) denial of the assistance of effective trial counsel. After an evidentiary hearing, at which Anderson was represented by new court-appointed counsel, the court dismissed the petition, but permitted an appeal to be filed from the 1967 judgments of sentence as if timely filed. Such an appeal was entered in the Superior Court and resulted in an affirmance of the judgments without opinion. Judge Spaulding filed a dissenting opinion in which Judges Hoffman and Cercone joined. See 215 Pa. Superior Ct. 147, 256 A.2d 868 (1969). We granted allocatur and now reverse.
The trial proceedings were not recorded and hence no transcript is now available for review. Neither counsel requested that a record be made, and the court did not order it to be done. Appellant contends: (1) that failure to record the trial proceedings was a denial of constitutional due process in that it precluded a meaningful appeal; and, (2) that trial counsel's failure to request that the proceedings be recorded and to preserve trial objections violated his right to the assistance of effective counsel.
In Pennsylvania the courts are required by statute to have a record made of all criminal proceedings whenever
requested so to do by the defendant or his counsel. See Act of May 1, 1907, P. L. 135, § 2, as amended, 17 P.S. § 1802. The Commonwealth correctly argues that this statute is not self-executing and contends that in the absence of a request that the proceedings be recorded, the statutory right is waived. But is the right also one of constitutional dimension? If so, the waiver issue must be viewed in a different perspective. For the record is barren of facts upon which an effective waiver may be found, and the only relevant evidence is Anderson's uncontradicted testimony at the PCHA hearing that he was not aware of his right in this regard and was not informed thereof by either the court or his counsel. And, as has been stated many times before, a waiver of a constitutional right to be effective must be intentional and knowing and will not be presumed. See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019 (1938).
The United States Supreme Court has never specifically ruled that a transcript of a criminal trial, in and of itself, is a vital due process necessity for appellate review in all criminal trials. Instead, there has been a continuous careful hedge about adequate alternatives to a transcript. Most of the relevant cases dealt with the necessity of furnishing a transcript to an indigent defendant.
In Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585 (1956), while holding that in this instance the Illinois authorities had to purchase a trial transcript for indigents who sought to appeal, the Court carefully noted at page 20: "We do not hold however that Illinois must purchase a stenographer's transcript in every case where a defendant cannot buy it. The Supreme Court [that of Ill.] may find other means of affording ...