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COMMONWEALTH v. GOLDSMITH (05/04/73)

decided: May 4, 1973.

COMMONWEALTH
v.
GOLDSMITH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1957, No. 577, in case of Commonwealth of Pennsylvania v. Walter Goldsmith.

COUNSEL

David N. Savitt, with him Walsh and Savitt, for appellant.

Maxine J. Stotland, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J. Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Justice Nix concurs in the result. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.

Author: Manderino

[ 452 Pa. Page 23]

Walter Goldsmith, appellant, was convicted of murder in the first degree and sentenced to life imprisonment

[ 452 Pa. Page 24]

    in December, 1958. No appeal was taken. In 1965, appellant filed pro se a petition for a writ of habeas corpus. Original trial counsel was appointed by the court to represent the appellant. An order denying relief was affirmed on appeal. Commonwealth ex rel. Goldsmith v. Myers, 430 Pa. 385, 243 A.2d 429 (1968). In 1970, appellant filed pro se a PCHA petition, claiming for the first time that he had not knowingly and voluntarily waived his appeal rights following his conviction in 1958. The public defender was appointed by the court to represent the appellant. The PCHA hearing resulted in a finding that the appellant had not knowingly and voluntarily waived his right of appeal and, thus, appellant was permitted to file post-trial motions. These motions were filed by the public defender. Later, appellant's original trial counsel was substituted for the public defender and argued the post-trial motions. Relief was denied and appellant, represented by original trial counsel, is now before us on direct appeal from his judgment of sentence.

Appellant raises one issue. He contends that he is entitled to a new trial since he cannot effectively and meaningfully exercise his direct appeal rights because he has not been furnished a full transcript or other equivalent picture of what transpired during his trial. We agree.

Under the Act of May 1, 1907, P. L. 135, § 7, 17 P.S. 1809, following a conviction of murder in the first degree, it is ". . . the duty of the official stenographer forthwith to make, certify, and file of record a typewritten copy of the stenographic notes of trial, without any order of court. . . ." In this case trial counsel made repeated requests but never received a full transcript. It is not disputed that substantial and pertinent portions of the notes of testimony were never transcribed because the stenographer became ill and

[ 452 Pa. Page 25]

    later died. Other stenographers unsuccessfully attempted to transcribe the notes of the deceased stenographer.

Recently, in Commonwealth v. DeSimone, 447 Pa. 380, 384-85, 290 A.2d 93, 96 (1972), this Court said: "Simple logic and justice require that once a defendant is guaranteed a right of appeal . . . he must be provided with a 'transcript or other equivalent "picture" of what transpired below' in order to have a 'meaningful appeal.' It is just as constitutionally impermissible to deny a defendant a record necessary for appellate review as it is to deny him the assistance of counsel necessary to prosecute the appeal."

As in DeSimone, the appellant in this case cannot meaningfully exercise his appeal rights without a full transcript or other equivalent picture.

In Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971), a new trial was granted because no transcript or other equivalent picture of what transpired in the trial court was available for appellate review even though trial counsel failed to request a stenographic recording of the trial. The same circumstances were present in DeSimone. In this case, the trial was stenographically recorded but a full transcript was never filed, as legally required. The difference is not material. A meaningful appellate review is impossible absent a full transcript or an equivalent picture of the trial proceedings. If a meaningful appellate review is impossible, for whatever reason, and the appellant is not at fault, he is entitled to a new trial. As we said in both Anderson and DeSimone, fairness compels the grant of a new trial.

Appellant's failure to claim a denial of his appeal rights in his 1965 habeas corpus petition did not constitute a waiver and appellant was entitled to raise the issue in his 1970 PCHA petition. The waiver concept, introduced into our law by the Post Conviction

[ 452 Pa. Page 26]

Hearing Act, Act of January 25, 1966, P. L. 1580. § 1 et seq. 19 P.S. 1180-1 et seq., can bar a claim, raised in a petition under the Act, only if an appellant knowingly and understandingly failed to raise the claim in a proceeding filed after the effective date of the Act, March 1, 1966, Commonwealth v. Melton, 449 Pa. 223, 296 A.2d 727 (1972); Commonwealth v. ...


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