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.
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,
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
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.