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COMMONWEALTH PENNSYLVANIA v. CHARLES FISHER (03/31/77)

decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES FISHER, APPELLANT



Appeal from Sentence of the Court of Common Pleas of Berks County, Criminal Division, at Nos. 607 and 608, 1974. NO. 1630 OCTOBER TERM, 1975.

COUNSEL

David R. Eshelman, Assistant Public Defender, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellee.

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

Author: Van Der Voort

[ 247 Pa. Super. Page 191]

Appeal is taken to our Court from Judgments of Sentence rendered on May 30, 1975, following jury trials on indictments lodged at lower court nos. 607 and 608 of 1974. Because both cases are before us in one proceeding, and because our disposition as to each differs, we shall address the issues separately.

THE APPEAL FROM NO. 607 OF 1974

The indictment charged, in two counts, violations of the "Crimes Code", Act of 1972, Dec. 6, No. 334, viz: burglary, § 3502, and receiving stolen property, § 3925. Following disposition of preliminary motions, a jury was impanelled on March 20, 1975. A verdict of guilty of receiving stolen property was returned the next day, a demurrer to the charge of burglary having been sustained. On May 30, 1975, following hearing, the lower court sentenced appellant to serve a term of 2 1/2 to 7 years' imprisonment, commencing at the expiration of the sentence rendered at No. 608 of 1974, infra, and to pay a fine of $500.00 plus costs. No post-trial motions were filed.

Appellant now alleges that the sentence was excessive and that the sentencing judge erred in failing to make known the rationale behind the sentence as rendered. Further, appellant argues that trial counsel, different from present counsel, was ineffective in failing to file a timely motion to suppress evidence (a motion to suppress was actually filed) and post-trial motions (the record does not indicate the filing of any post-trial motions). Were we to rely upon the transcribed sentencing hearing notes for disposition of the first contention, we could not dispose of the

[ 247 Pa. Super. Page 192]

    ineffectiveness claim, even by a remand for hearing as to counsel's ineffectiveness, because neither we nor either party has the benefit of transcribed notes of testimony of trial. Nor are we able to assess on the present record whether trial counsel was in fact ineffective. Nor is appellant or his counsel able fully to review the trial proceedings and possibly to discover other arguments of trial counsel's ineffectiveness.*fn1 Despite repeated attempts by our Prothonotary to obtain said notes of trial testimony from the clerk of the lower court, and through the auspices of the court itself, we have not received these notes. It is apparent that the lower court cannot or will not comply with our requests and the mandate of Superior Court Rule 50.*fn2 It is necessary, for proper consideration of this appeal, that we be able to have the benefit of this vital part of the trial record. See Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973).

Therefore, judgment of sentence is reversed and the case is ...


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