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COMMONWEALTH PENNSYLVANIA v. ROBERT WAYNE COTTEN (05/04/79)

decided: May 4, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT WAYNE COTTEN, APPELLANT



No. 30 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Crawford County, at No. 301 of 1976, Criminal Division.

COUNSEL

Emil M. Spadafore, Jr., Meadville, for appellant.

Robert S. Bailey, Assistant District Attorney, Meadville, for Commonwealth, appellee.

Cercone, Wieand, and Hoffman, JJ.

Author: Hoffman

[ 266 Pa. Super. Page 142]

Appellant contends that the lower court erred in denying his Post Conviction Hearing Act ("PCHA")*fn1 petition without a hearing and in refusing his motion for transcription of trial proceedings. After reviewing appellant's PCHA petition and brief*fn2 and the record, we agree that one issue should be remanded for an evidentiary hearing and that appellant should be supplied with a transcript of his trial.

On June 25, 1976, Crawford County police filed a criminal complaint charging appellant with involuntary deviate sexual intercourse,*fn3 indecent assault,*fn4 and corruption of a minor.*fn5 On September 16, 1976, a jury found appellant guilty of all three counts. The transcript of testimony taken after the jury's return of the verdict reveals that the trial judge

[ 266 Pa. Super. Page 143]

    advised him that he had a right to file post-verdict motions within seven days, a right to appeal any denial of those motions within 30 days after sentencing, and a right to free counsel, and that only those grounds contained in the post-verdict motions could be raised on appeal. Pa.R.Crim.P. 1123(c). No post-verdict motions were filed. On October 16, 1976, the following colloquy occurred during the sentencing hearing:

"THE COURT: . . . Mr. Cotten, you were told immediately after the verdict that you had a right to file motions for a new trial and arrest of judgment. Do you remember that?

"MR. COTTON [sic]: Yes.

"THE COURT: Did you decide not to file ...


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