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COMMONWEALTH PENNSYLVANIA v. MICHAEL F. DEAN (06/21/85)

submitted: June 21, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL F. DEAN, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Lehigh County, Criminal Division, at No. 1555 & 1556 of 1982.

COUNSEL

Thomas C. Anewalt, Allentown, for appellant.

James B. Martin, Assistant District Attorney, Allentown, for Com., appellee.

Brosky, Watkins and Hoffman, JJ.

Author: Brosky

[ 348 Pa. Super. Page 2]

This appeal is from judgment of sentence for two counts of arson, risking a catastrophe and criminal conspiracy. This case presents the question of whether an indigent defendant in Pennsylvania is entitled to a preliminary hearing transcript at state expense.*fn1 We agree that an indigent defendant is so entitled; however, we affirm since the appellant had a substantially equivalent alternative to the transcript.

Facts

On the day prior to the preliminary hearing, appellant's counsel presented a motion requesting the court to authorize a court stenographer -- at state expense since appellant was indigent -- to take notes of testimony at the preliminary hearing. The motion was denied. At the preliminary hearing appellant's counsel was permitted to tape record the proceedings. Partial transcriptions of this tape recording were used at trial. On appeal appellant raises the properly

[ 348 Pa. Super. Page 3]

    preserved issue that he was entitled to a stenographic record of the preliminary hearing.

Preliminary Hearing Transcript

Pennsylvania case law has not heretofore addressed whether an indigent defendant is entitled to a preliminary hearing transcript at state expense. Commonwealth v. Gelormo, 327 Pa. Super. 219, 226 n. 4, 475 A.2d 765, 768 n. 4 (1984). It is, however, axiomatic that, while a state can expand rights granted by the Federal Constitution, it cannot constrict those rights. Since the right in question has a Federal Constitutional basis, we must, perforce, recognize it in this Commonwealth.

In Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899 (1956), the United States Supreme Court stated: "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." The Court in Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) extended Griffin to include provision for a free transcript prior to trial of a preliminary hearing to indigent defendants. The analysis in Roberts was grounded in the Equal Protection clause. The case concluded ...


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