Commonwealth v. DeSimone
216 Pa. Super. 213
Pa. Super. Ct.
1970
Check Treatment

Dissenting Opinion

Dissenting Opinion by

Hoffman, J.:

Appellant was tried in 1940 before a judge and jury. In 1967, he filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. §1180, alleging ineffective assistance of counsel. A hearing was held, at which it was shown that counsel failed to request the stenographic recording of the trial proceedings. Despite this show*214ing, the PCHA court denied appellant’s petition. This appeal followed.

This case is governed by Judge Spaulding’s dissent in Commonwealth v. Anderson, 215 Pa. Superior Ct. 147, 256 A. 2d 868 (1969), in which Judge Cerconb and I joined. Judge Spaulding said:

“Notes of testimony are essential for post-trial or appellate review. Without a record, no reviewing court can determine whether trial errors were committed or whether the evidence supported the verdict. Consequently, as it effectively forecloses all future review, failure to request stenographic recording of trial proceedings is tantamount to a decision before trial that no appeal will be taken. No reasonable basis for trial counsel’s action has been advanced here by the Commonwealth nor is any conceivable. I conclude that appellant was deprived of constitutionally effective assistance of counsel.” Id. at 151.

I would reverse the order of the lower court and grant a new trial.

Spaulding and Cercone, JJ., join in this dissenting opinion.



Lead Opinion

Opinion

Per Curiam,

Order affirmed.