Com. v. Banks

Citation428 Pa. 571,237 A.2d 339
PartiesCOMMONWEALTH of Pennsylvania v. Henry H. BANKS, Appellant.
Decision Date09 January 1968
CourtUnited States State Supreme Court of Pennsylvania

S. R. Zimmerman, III, Lancaster, for appellant.

Wilson Bucher, Dist. Atty., Lancaster, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

PER CURIAM.

Order affirmed.

ROBERTS, J., files a dissenting opinion in which EAGEN, J., joins.

DISSENTING OPINION

ROBERTS, Justice.

Not only does the majority's disposition of this appeal fly in the face of controlling United States Supreme Court cases, but in a matter of first impression for this Court it owes both the bench and bar, as well as appellant Banks, more than a cryptic 'Per Curiam: Order affirmed.' We are here confronted with a factual situation calling for a re-examination of the status of our cases dealing with untranscribed records in criminal cases in light of the principles enunciated in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963).

Henry H. Banks was convicted after a 1948 trial by jury of murder in the first degree and sentenced to life. His first attempt at collateral relief was unsuccessful. 1 See Commonwealth ex rel. Banks v. Myers, 432 Pa. 124, 222 A.2d 880 (1966). A petition under the Post Conviction Hearing Act was then filed, counsel appointed and a hearing held. At the conclusion of this hearing, the hearing judge determined that the mandate of Douglas v. People of State of California, supra, had been violated and accordingly granted appellant the right to file a motion for new trial nunc pro tunc. 2 These new trial motions were denied 3 primarily because no transcript of appellant's trial was available--the court stenographer was dead and the notes could not be transcribed. This appeal was then perfected.

The Commonwealth cites a plethora of cases to support the proposition that a new trial is not necessary merely because the trial transcript is unobtainable. 4 All of these cases were decided well before Douglas and Norvell and several of them, such as Commonwealth ex rel. Turk v. Ashe, 167 Pa.Super. 323, 74 A.2d 656, cert. denied, Turk v. Claudy, 340 U.S. 907, 71 S.Ct. 274, 95 L.Ed. 656 (1950), are based upon the assumption that the fault for the now unobtainable transcript must be lodged with the prisoner. If fault must be assessed against a party in this litigation, then the Commonwealth must bear the blame. The Act of May 1, 1907, P.L. 135, § 7, 17 P.S. § 1809, in language which is unmistakable, makes it mandatory for the court stenographer in a capital case to transcribe and file the notes of testimony: '(I)n any case * * * of conviction of murder in the first degree, it Shall be the duty of the official stenographer forthwith to make, certify, and file of record a typewritten copy of the Stenographic notes of trial, Without any order of the court; * * *' (Emphasis supplied.) Furthermore, it cannot be said that appellant himself should have taken steps to insure that the stenographer performed his statutory duty. The opinion of the court below cites not only Douglas but our own cases of Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966) and Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965) as well to support its decision to permit the filing of new trial motions nunc pro tunc. These citations can mean only that the lower court determined that appellant was unconstitutionally deprived of assistance of counsel for purposes of appeal. I find it inconceivable that any court would except an unrepresented, indigent defendant to have the knowledge necessary to avail himself of a procedure to compel transcription of the notes of testimony when in the same breath it admits that he must have counsel to hurdle the intricacies of appeal.

The Supreme Court of the United States in Norvell v. State of Illinois, supra, was faced with a contention under Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) that unavailability of a trial transcript for purposes of collateral attack 5 worked a violation of due process and equal protection. Although the Court denied relief, its language leaves no doubt that the result would be different had Norvell combined his claim with an insistence that he had been denied the assistance of counsel for appeal. It has already been adjudicated that Banks has been denied such assistance for the court below granted relief under Douglas. The Supreme Court in Norvell unmistakably insisted:

'The issue in this case is whether Illinois has made an 'invidious discrimination' against petitioner. Griffin v. Illinois, supra, * * * More precisely, the question is whether when a transcript cannot subsequently obtained or reconstructed 6 Through no fault of the State, may it constitutionally draw the line against indigents who had lawyers at their trial but after conviction did not pursue their remedy?

'If it appeared that the lawyer who represented petitioner at the trial refused to represent him on the appeal and petitioner's indigency prevented him from retaining another, we would have a different case. Cf. Douglas v. California, * * * Petitioner, who testified at the hearing on the motion, made no such claim.

'(W)here transcripts are no longer available, Illinois may rest on the presumption that he who had a lawyer at the trial had one who could protect his rights on appeal.' (373 U.S. at 422--423, 424, 83 S.Ct. at 1368, 1369.) (Emphasis supplied.)

Given the 1907 statute, supra, Banks' transcript was unobtainable through Fault of the state. Furthermore, and more significantly, Pennsylvania in this case may Not 'rest on the presumption that he who had a lawyer at the trial had one who could protect his rights on appeal' for the simple reason that the grant of relief below based upon a finding of a Douglas violation is equivalent to a decision that Banks Did not have the services of an attorney to protect his appellate rights. We are thus faced with the 'different case' contemplated in Norvell. And with justice this case Should be different. The grant of Douglas relief indicates that Banks was deprived of assistance of counsel for appeal; this is the identical deprivation which prevented Banks from taking any action to compel the stenographer to transcribe his notes. Under the Constitution, this Court may not with one breath tell an indigent defendant that because of his indigency he was denied assistance of counsel for purposes of appeal and in the same breath insist that it will deprive him of the very means necessary to effectuate his unconstitutionally denied right, i.e., a trial transcript.

Nor are we the first court to face this question. In Pate v. Holman, 341 F.2d 764, modified on other grounds, 343 F.2d 546 (5th Cir. 1965), Judge Wisdom was confronted with an identical issue. 7 Pate, a state prisoner, brought an action for federal habeas corpus. His trial transcript was unavailable because of the death of the stenographer. Pate alleged that he had been deprived of the assistance of counsel on appeal under Douglas and thus insisted that, given the language of Norvell, he was entitled to a new trial. The Fifth Circuit agreed. After noting that a hearing was necessary to determine whether Douglas had been violated, that court concluded that a finding of a Douglas denial (as was found in Banks'...

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