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COMMONWEALTH v. COLEMAN (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
COLEMAN, APPELLANT



Appeals from order of Court of Common Pleas of Cambria County, March T., 1967, No. D-108, and No. 18 O. & T., in case of Commonwealth of Pennsylvania v. George Coleman.

COUNSEL

Blair V. Pawlowski and Fremont J. McKenrick, Public Defender, for appellant.

Caram J. Abood, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 230 Pa. Super. Page 3]

Appellant contends that he has been denied an opportunity for meaningful appellate review of his two convictions because the transcripts of those proceedings were destroyed by fire.

The appellant was tried by a jury and convicted of the charge of assault and battery. Following the conviction, he filed a motion for a new trial. On October 30, 1967, appellant appeared in Court and withdrew his motion. On the same date, he entered a plea of nolo contendere to a charge of burglary. He was sentenced to a term of imprisonment of one to two years on each offense, the sentences to run concurrently. A transcript of the proceedings of October 30, 1967, was never lodged. In February, 1972, the appellant filed PCHA petitions alleging that the withdrawal of his motion for a new trial and his plea of nolo contendere on the second charge were not made voluntarily and understandingly.

At the post-conviction hearing, the Commonwealth reported to the Court that the notes taken by the stenographer on October 30, 1967, had been destroyed in a fire. Appellant questioned his trial counsel, who did not recall any of the events that took place on that date. Commonwealth called no witnesses to rebut appellant's contention. Despite this total absence of proof to dispel appellant's contentions, the petitions were dismissed. This appeal followed.

In the instant case, the appellant, by withdrawing his motion for a new trial and in entering a plea of nolo contendere, effectively waived his right to a direct appeal. He was limited in raising a limited number of enumerated issues, including the right to attack the entry of a plea or a waiver of his constitutional rights on the ground that said act was involuntarily and unknowingly made. 19 P.S. ยง 1180-3 (c).

[ 230 Pa. Super. Page 4]

While it may generally be said that the burden is upon the defendant to establish that the entry of his plea or the waiver of post-trial motions was not made voluntarily and understandingly. See e.g., Commonwealth v. Hill, 327 Pa. 614, 235 A.2d 347 (1967), the converse is true where the record is silent. Douglas v. California, 373 U.S. 353 (1963), announced the constitutional right of an indigent to counsel on appeal, a right without which a defendant would be denied a "meaningful appeal". In Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971), our Supreme Court first enunciated the law that a Douglas right of appeal is denied, and a new trial is mandated where no transcript or other equivalent picture of what transpired in the trial court was available for appellate review even though trial counsel had failed to request a stenographic recording of the trial. Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972), in holding Anderson fully retroactive, stated at 384-385: "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."

In the instant case, Commonwealth could only explain that the transcript had been destroyed. No witnesses were produced to "reconstruct" or to provide an "equivalent picture of what transpired below". As the record was silent ". . . as to what, if anything, the defendant was told about his appellate rights, the burden of proof in a collateral proceeding is upon the Commonwealth to show that these rights were knowingly ...


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