Appeal from order of Superior Court, April T., 1967, No. 288, reversing order of Court of Oyer and Terminer of Fayette County, September T., 1940, Nos. 6/106, in case of Commonwealth of Pennsylvania v. John DeSimone.
William J. Franks, for appellant.
Thomas P. Ruane, Jr., First Assistant District Attorney, and Joseph Kovach, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the decision of this case. Dissenting Opinion by Mr. Chief Justice Jones. Mr. Justice Pomeroy joins in this dissent.
We must here decide whether the principles recently enunciated in Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971), should apply to trials which took place prior to our decision in that case. In our view, Anderson must be so applied, and we accordingly grant appellant a new trial.
On September 5, 1940, appellant John DeSimone was convicted by a jury of armed robbery and related offenses. He was sentenced to 7 1/2 to 20 years imprisonment. No direct appeal was taken at that time.*fn1
In 1967 appellant filed the Post Conviction Hearing Act*fn2 petition that is now before us.*fn3 In this petition
appellant alleged that he was denied the effective assistance of counsel, that the trial court instructed the jury to find him guilty, that both he and his counsel were absent when the verdict was returned and also during the imposition of sentence, and finally that he was denied his right of appeal. Counsel was appointed to assist appellant in perfecting his petition, and a hearing was held on March 27, 1968. The hearing court subsequently dismissed the petition on August 26, 1968, finding appellant's testimony "not worthy of belief". The Superior Court affirmed per curiam without opinion, with Judge Hoffman filing a dissenting opinion in which Judge Spaulding and Judge Cercone joined. See Commonwealth v. DeSimone, 216 Pa. Superior Ct. 213, 263 A.2d 901 (1970). We granted allocatur.
Appellant presses three issues before our Court: ineffective assistance of counsel, denial of his appeal rights, and the absence of counsel during sentencing. We express no opinion as to the merits of his argument on these issues, for a new trial is necessary due to the total absence of any meaningful record of appellant's original trial.
Just one year ago this Court decided Commonwealth v. Anderson, supra. In that case, we held, after an exhaustive survey of the relevant authorities: "The common thread running through the surveyed United States Supreme, Federal and State Courts' decisions which have dealt with the problem is that, while a transcript per se is not an absolute due process necessity, there must be at least an ...