decided: January 24, 1974.
Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, April T., 1930, No. 243, in case of Commonwealth of Pennsylvania v. Robert C. Jones.
Michael J. Perezous and Xakellis, Perezous & Mongiovi, for appellant.
Charles A. Achey, Jr., Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Justice Manderino.
Author: Per Curiam
[ 455 Pa. Page 270]
Appellant's case has twice previously been before this Court. On December 30, 1971, we remanded the case to the Court of Common Pleas of Lancaster County for a determination as to whether appellant had waived his Douglas*fn1 rights. Commonwealth v. Jones,
[ 455 Pa. Page 271447]
Pa. 228, 286 A.2d 892 (1971). The lower court found that a Douglas hearing would be fruitless and granted appellant the right to appeal, as though timely filed, to this Court. On that appeal, appellant raised the issue of whether his confession was voluntary. The record of appellant's murder trial had not been transcribed, however, and we again remanded the case, this time for a Jackson-Denno hearing on the voluntariness of appellant's alleged confession.*fn2 Commonwealth v. Jones, 450 Pa. 372, 301 A.2d 631 (1973).
At the Jackson-Denno hearing, testimony was received from appellant, from the custodian of the records of the Lancaster City Police, and from a former police officer who had attended and testified at appellant's murder trial.*fn3 Although in a Jackson-Denno hearing the Commonwealth must prove the voluntariness of a confession by a preponderance of the evidence, Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968), the burden of proving that a confession was taken and used against a defendant is upon that defendant. This is no less true in a silent record case, especially where the testimony of a witness who attended the trial and the availability of the police records which would normally contain any written confession provide "an equivalent picture" of what transpired at trial on this issue.*fn4
[ 455 Pa. Page 272]
At the commencement of the Jackson-Denno hearing, the court below erroneously stated that the burden rests upon the defendant to prove that his confession was involuntary. This is clearly a misstatement of the law of our Commonwealth. However, in view of the finding of the court below that no confession was offered at trial, this error must be viewed as harmless. We believe the finding of the court below was supported by credible evidence*fn5 and the dismissal of appellant's post-conviction petition was proper.
Judgment of sentence affirmed.
Judgment of sentence affirmed.
Dissenting Opinion by Mr. Justice Manderino:
I dissent. I agree with the majority that the prosecution must prove the voluntariness of a confession by a preponderance of the evidence. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).
[ 455 Pa. Page 273]
I disagree, however, that the appellant has the burden of proving that a confession was taken and used at his trial. Since at least 1907, the law of Pennsylvania has required, following a conviction of murder in the first degree, that the official stenographer make, certify, and file of record, a typewritten copy of the stenographic notes of trial, without any order of court. Act of May 1, 1907, P. L. 135, § 7, 17 P.S. § 1809. The purpose of an official transcript is to provide an accurate record of what transpired at a trial. The absence of such a statutorily required transcript of record cannot justify the shifting of a burden to the appellant to do what the law specifically requires is the duty of the official stenographer, an officer of the court. Without a record, as required by law, the appellant is deprived of his constitutionally guaranteed appellate rights through no fault of his own. He is therefore entitled to a new trial. Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973); Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972); Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971). I agree with the majority that the prosecution in the absence of a trial transcript, may provide an equivalent picture of what transpired at trial as a substitute. I cannot agree, however, that such an equivalent picture was provided by the prosecution in this case. I cannot read the testimony of the police officer in this case, which is crucial, as providing an equivalent picture of what transpired at the appellant's trial. The police officer testified that he did not know whether a confession was taken from the appellant and further testified that since he was not present during the entire trial, he could not recall testimony about a confession. The police officer further testified that he was not in charge of the investigation. Such testimony did not provide an equivalent picture. The judgment of sentence should be reversed and a new trial awarded.