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COMMONWEALTH v. GOINS (10/09/75)

SUPERIOR COURT OF PENNSYLVANIA


decided: October 9, 1975.

COMMONWEALTH
v.
GOINS, APPELLANT

Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, April T., 1947, No. 6 O&T, in case of Commonwealth of Pennsylvania v. Fred Goins.

COUNSEL

Robert L. Potter, and Reed, Smith, Shaw & McClay, for appellant.

No appearance entered nor brief submitted for Commonwealth, appellee.

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

Author: Per Curiam

[ 236 Pa. Super. Page 568]

Appellant filed a petition pursuant to the Post Conviction Hearing Act, 19 P.S. ยง 1180-1 et seq., in which he alleged that he was denied the right to appeal following a conviction in 1947. See Douglas v. California, 372 U.S. 353 (1963), held retroactive by Smith v. Crouse, 378 U.S. 584 (1964).

Because there is no trial transcript, the burden is on the Commonwealth to show that appellant knowingly waived his right to appeal. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). The Commonwealth, however, concedes that it cannot meet its burden and, therefore, appellant is granted the right to appeal nunc pro tunc. The conviction must be vacated, and a new trial granted, when no trial transcript exists and the Commonwealth is unable to provide an "equivalent picture." Commonwealth v. Goldsmith, 452 Pa. 22, 24, 304 A.2d 478 (1973). The Commonwealth again concedes that it will not be able to sustain the required burden of proof.

Judgment of sentence reversed, and the case is remanded for a new trial.

Disposition

Judgment of sentence reversed and case remanded.

19751009

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