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decided: July 1, 1974.


Appeal from order of Superior Court Oct. T., 1972, Nos. 761 and 762, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1969, Nos. 557 and 560, in case of Commonwealth of Pennsylvania v. Arthur Lee Davis.


John W. Packel, Assistant Defender, with him Anne F. Johnson, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

John W. Morris, Assistant District Attorney, with him David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen concurs in the result. Mr. Justice Manderino took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: O'brien

[ 457 Pa. Page 196]

Appellant, Arthur Lee Davis, was arrested in connection with a milk delivery truck robbery in Philadelphia. He pled not guilty and, after waiving a jury trial, was convicted on counts of aggravated robbery and burglary and sentenced to serve concurrent one and one-half to five year terms on each charge. No post-trial motions or appeals were taken at that time.

Following a 1971 Post Conviction Hearing Act petition, appellant filed nunc pro tunc post-trial motions, alleging denial of his right to confrontation and denial of effective assistance of counsel. An evidentiary hearing was held, after which his post-trial motions were denied. Appeal to the Superior Court resulted in a per curiam opinionless affirmance. Judge Packel wrote a dissenting opinion, which was joined by Judges Hoffman and Spaulding. 222 Pa. Superior Ct. 434, 295 A.2d 155 (1972). We granted allocatur to examine two issues raised by appellant.

At trial, the testimony of the milk truck driver, the complaining witness, was introduced by stipulation between defense counsel and the district attorney. It was stipulated that if the driver were present, he would testify that two men, one armed with a gun, entered his truck and robbed him of $200. It was further stipulated that at the preliminary hearing, the driver had identified appellant as one of the men.

Appellant first contends that his counsel's stipulation to this testimony, which placed him at the scene of the crime and named him as a participant, was in

[ 457 Pa. Page 197]

    fact a stipulation of guilt, despite appellant's plea of not guilty. Appellant further contends that since the testimony entered by stipulation was so damaging, the admission of the stipulation should have been surrounded by safeguards similar to those attending the entry of a guilty plea.

With this contention we agree. While it is true that appellant did not plead guilty, and, therefore, it was still possible for the court to find him not guilty, such a verdict would have been extremely unlikely. Not only did appellant stipulate to the testimony that would have been offered by the complaining witness, thereby giving up the opportunity to cross-examine the witness for purposes of attacking his credibility, his memory, or his capacity to observe, but also appellant offered no defense in his own behalf. Under such circumstances, the stipulation to the witness's testimony made the outcome a foregone conclusion. The United States Court of Appeals for the Sixth Circuit came to much the same conclusion in Julian v. United States, 236 F.2d 155 (1956), and held that when the defense counsel stipulates to facts which will support a conviction of his client, Rule 11 of the Federal Rules of Criminal Procedure requires that the court inquire whether the defendant understands the charges against him and voluntarily acquiesces in the stipulations. Our Rule 319(a) of the Pennsylvania Rules of Criminal Procedure has a similar requirement.

Since no such on-the-record colloquy appears in this case, we are faced with a situation analogous to silent-record cases involving a challenge to a guilty plea entered after our decision in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968). In such cases, we have held that the burden is on the Commonwealth to establish that the defendant's decision to ...

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