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decided: December 15, 1976.


Appeal from the Judgment of Sentence imposed March 5, 1975, in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 968/970 December term, 1969. No. 928 October Term, 1975.


John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a concurring opinion. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.

Author: Cercone

[ 246 Pa. Super. Page 347]

The instant appeal is from the denial of appellant's request for a new trial pursuant to a PCHA petition filed

[ 246 Pa. Super. Page 348]

    in the court below. The principal issue on appeal is whether a conviction is valid if it is obtained in part by use of a prior conviction which is invalidated after it has been so used. We agree with the court below that, on the facts of this case, appellant's request for a new trial was properly denied.

In November, 1969 appellant was arrested and charged with rape, robbery and carrying a concealed deadly weapon. After a jury trial in May of 1970, appellant was found guilty of all charges. He was subsequently sentenced to concurrent terms of five to ten years on the rape and robbery convictions, and sentence was suspended on the weapons offense. Suffice it to say that the outcome of the trial rested squarely on the credibility of the victims versus the credibility of appellant. Without a doubt, a damaging blow to appellant's defense occurred when he testified in his own behalf and, from cross-examination by the Commonwealth, the jury learned that appellant had been convicted of rape in 1961 and assault and battery in 1965. Although this revelation was objected to at trial, raised in post-trial motions, and argued on appeal to this court as a violation of due process, we affirmed the judgments of sentence per curiam, and the Supreme Court denied allocatur. Commonwealth v. Jones, 219 Pa. Super. 723, 280 A.2d 446 (1971), No. 242 Allocatur Docket Nos. 1414-16, October Term, 1970. There began a series of unsuccessful efforts to collaterally attack the conviction in both the courts of this Commonwealth and the federal courts.

On July 30, 1973, appellant filed a Post Conviction Hearing Act petition alleging that his waiver of his right to appeal from the 1961 rape conviction was not knowing and intelligent. The hearing court agreed on the basis of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); and Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), and granted appellant

[ 246 Pa. Super. Page 349]

    the right to file post-trial motions nunc pro tunc. It was then discovered that the stenographic notes of testimony of the 1961 trial had not been preserved, so the court ordered a new trial. Because of the staleness of the case, the Commonwealth nol prossed it on April 16, 1974.

Appellant's now long-running show returned to a familiar theater, the PCHA court, but this time it had a new script. Appellant argued that, because an unconstitutional conviction had been used to impeach his credibility at his 1970 rape and robbery trial, Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) compelled that he be granted a new trial on those rape and robbery offenses for which he was convicted. The hearing court found appellant's argument sufficiently persuasive to reduce his sentence, since the 1961 rape conviction had been used to enhance punishment,*fn1 but disagreed that the use of the conviction for impeachment was unconstitutional so as to require a new trial. We will affirm that decision.

Tucker and Loper were cases which involved the use of convictions invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) at subsequent trials, although the Gideon errors were not raised until the judgments on the subsequent convictions had become final. Relying on Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1968),*fn2 the Court stated in Loper :

[ 246 Pa. Super. Page 350]

"Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant's credibility deprives him of due process of law." 405 U.S. at 483, 92 S.Ct. at 1019. The result, of course, was fully retroactive application of Gideon even for the purposes of collateral attack.

However, to apply the doctrine of Loper, Tucker and Burgett to the case at bar is to expand that doctrine beyond all reasonable limits. First, the rationale proposed by appellant and accepted by the dissent would grant a new trial in any case where a conviction used to impeach appellant's credibility is subsequently invalidated for any reason which arguably bears upon the integrity of the fact-finding process involved in that conviction. Even if we were to accept only that point of view, our decision would be manifestly impractical and portend havoc in the administration of criminal justice, especially in the context of the Post Conviction Hearing Act.*fn3 However,

[ 246 Pa. Super. Page 351]

    appellant and the dissent compound their error by arguing that convictions invalidated as a consequence of Griffin v. Illinois and Douglas v. California are convictions which fall within that class. This aspect of appellant's argument is palpably erroneous, both logically and constitutionally.

Douglas and Griffin have been misconstrued in the dissenting opinion. Simply put, Douglas and Griffin are not decisions involving violations of an individual's "appellate rights" in any sense other than incidentally; Douglas and Griffin are equal protection cases where the privilege, in a constitutional sense, to have an attorney on appeal or to have available a transcript of a trial record is denied to an individual because of his poverty. Discrimination on the basis of wealth is the essence of those decisions, not due process of law (i. e., appellate rights). Of course, if one casts those cases in terms of due process, the argument that a prior conviction cannot be presumed valid when there is no transcript of trial is far more persuasive. However, that is not the principle upon which Douglas and Griffin rest.

In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), not cited in the dissenting opinion,*fn4 the Supreme Court confronted the question of whether Douglas and Griffin were decisions resting on due process or equal protection. In concluding that the foundation for those decisions was the equal protection clause of the fourteenth amendment, the court stated:

"The defendant needs an attorney on appeal not as a shield to protect him against being 'haled into court' by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for,

[ 246 Pa. Super. Page 352]

    while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). . . . Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under ...

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