Commonwealth v. Jones , 246 Pa. Super. 346 ( 1976 )

CERCONE, Judge:

The instant appeal is from the denial of appellant’s request for a. new trial pursuant to a PCHA petition filed in the court below. The principal issue on appeal is whether a conviction is valid if it is obtained in part by use of a prior conviction which is invalidated after it has been so used. We agree with the court below that, on the facts of this case, appellant’s request for a new trial was properly denied.

In November, 1969 appellant was arrested and charged with rape, robbery and carrying a concealed deadly weapon. After a jury trial in May of 1970, appellant was found guilty of all charges. He was subsequently sentenced to concurrent terms of five to ten years on the rape and robbery convictions, and sentence was suspended on the weapons offense. Suffice it to say that the outcome of the trial rested squarely on the credibility of the victims versus the credibility of appellant. Without a doubt, a damaging blow to appellant’s defense occurred when he testified in his own behalf and, from cross-examination by the Commonwealth, the jury learned that appellant had been convicted of rape in 1961 and assault and battery in 1965. Although this revelation was objected to at trial, raised in post-trial motions, and argued on appeal to this court as a violation of due process, we affirmed the judgments of sentence per curiam, and the Supreme Court denied allocatur. Commonwealth v. Jones, 219 Pa.Super. 723, 280 A.2d 446 (1971), No. 242 Allocatur Docket Nos. 1414-16, October Term, 1970. There began a series of unsuccessful efforts to collaterally attack the conviction in both the courts of this Commonwealth and the federal courts.

On July 30, 1973, appellant filed a Post Conviction Hearing Act petition alleging that his waiver of his right to appeal from the 1961 rape conviction was not knowing and intelligent. The hearing court agreed on the basis of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L. Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L.Ed. 891 (1956); and Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), and granted appellant the right to file post-trial motions nunc pro tunc. It was then discovered that the stenographic notes of testimony of the 1961 trial had not been preserved, so the court ordered a new trial. Because of the staleness of the case, the Commonwealth nol prossed it on April 16, 1974.

Appellant’s now long-running show returned to a familiar theater, the PCHA court, but this time it had a new script. Appellant argued that, because an unconstitutional conviction had been used to impeach his credibility at his 1970 rape and robbery trial, Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed. 2d 592 (1972) compelled that he be granted a new trial on those rape and robbery offenses for which he was convicted. The hearing court found appellant’s argument sufficiently persuasive to reduce his sentence, since the 1961 rape conviction had been used to enhance punishment,¹ but disagreed that the use of the conviction for impeachment was unconstitutional so as to require a new trial. We will affirm that decision.

Tucker and Loper were cases which involved the use of convictions invalid under Gideon v. Wainwright, 372 U. S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) at subsequent trials, although the Gideon errors were not raised until the judgments on the subsequent convictions had become final. Relying on Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L.Ed.2d 319 (1968),² the Court stated in Lo-per: “Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law.” 405 U.S. at 483, 92 S.Ct. at 1019. The result, of course, was fully retroactive application of Gideon even for the purposes of collateral attack.

However, to apply the doctrine of Loper, Tucker and Burgett to the case at bar is to expand that doctrine beyond all reasonable limits. First, the rationale proposed by appellant and accepted by the dissent would grant a new trial in any case where a conviction used to impeach appellant’s credibility is subsequently invalidated for any reason which arguably bears upon the integrity of the fact-finding process involved in that conviction. Even if we were to accept only that point of view, our decision would be manifestly impractical and portend havoc in the administration of criminal justice, especially in the context of the Post Conviction Hearing Act.³ However, appellant and the dissent compound their error by arguing that convictions invalidated as a consequence of Griffin v. Illinois and Douglas v. California are convictions which fall within that class. This aspect of appellant’s argument is palpably erroneous, both logically and constitutionally.

Douglas and Griffin have been misconstrued in the dissenting opinion. Simply put, Douglas and Griffin are not decisions involving violations of an individual’s “appellate rights” in any sense other than incidentally; Douglas and Griffin are equal protection cases where the privilege, in a constitutional sense, to have an attorney on appeal or to have available a transcript of a trial record is denied to an individual because of his poverty. Discrimination on the basis of wealth is the essence of those decisions, not due process of law (i. e., appellate rights). Of course, if one casts those cases in terms of due process, the argument that a prior conviction cannot be presumed valid when there is no transcript of trial is far more persuasive. However, that is not the principle upon which Douglas and Griffin rest.

In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L. Ed.2d 341 (1974), not cited in the dissenting opinion,⁴ the Supreme Court confronted the question of whether Douglas and Griffin were decisions resting on due process or equal protection. In concluding that the foundation for those decisions was the equal protection clause of the fourteenth amendment, the court stated:

“The defendant needs an attorney on appeal not as a shield to protect him against being ‘haled into court’ by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant’s consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). . Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.” Id. at 610-11, 194 S.Ct. at 2444. See also Griffin v. Illinois, 351 U.S. at 18, 76 S.Ct. 585.

It is obvious, therefore, that Douglas and Griffin do not hold that the lack of an appeal unconstitutionally taints the reliability of a conviction. On the contrary, as Ross v. Moffitt reiterates, a criminal conviction from which a state allows no appeal is presumptively valid under the constitution; but, where an appeal is provided by a state, the question of the right to an attorney and to a transcript of the trial record is one of equal protection under the law and not one of due process.

Predictably I think, most of the federal courts which have come to grips with the problem presented in the instant cause have refused to be as expansive as the dissent today proposes. In United States v. Penta, 475 F.2d 92 (1st Cir. 1973) the court expressly stated that it would limit Loper to Gideon situations and refused to apply the Loper rationale in situations where convictions used to impeach were subsequently invalidated because of an illegal search and seizure. But see Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969).⁵ In United States v. Graves, 394 F.Supp. 429 (W.D.Pa.1975), the court again limited Loper to its facts and rejected applying a similar rationale to convictions unconstitutional under Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) (constitutional rights of juvenile offenders in cases to be certified to criminal court). And, in United States v. White, 463 F.2d 18 (9th Cir. 1972), the court refused to apply Burgett to convictions which occurred under a criminal statute subsequently determined to be unconstitutional. In our estimation, both practically and logically, these are the better reasoned decisions.

Thus, we have concluded that there is no basis constitutionally to determine that the reliability of a criminal conviction is suspect simply because an appellate court has not affirmed it on the merits. That being the case, the applications of the principle of Loper v. Beto to convictions invalidated as a consequence of Douglas and Griffin would be wholly inappropriate even under the broadest reading of Loper’s holding.⁶ Furthermore, as noted above, given the extraordinary burden that such a decision would put on the criminal justice system, the result approved by the dissent would be highly impractical.

Order of the lower court is affirmed.

PRICE, J., files a concurring opinion. HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins.

1 . The propriety of this aspect of the hearing court’s decision has not been challenged.

2 . The essence of the Court’s rationale in Burgett v. Texas is capsulized in Loper v. Beto, 405 U.S. at 481, 92 S.Ct. at 1018 as follows:

“ ‘To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that . . right’ 389 U.S. at 115, 88 S.Ct. at 262, 19 L.Ed. at 324.”

3 . It should be noted that under its rationale the dissent suggests not only that a new trial is required when the conviction used to impeach is invalidated subsequent to the conviction appealed, but by the very posture of the instant case the dissent also suggests that convictions which became final prior to Loper are equally susceptible to attack. Consequently, any person who testified at his trial and was impeached by prior convictions would have new grounds and renewed motivation for attacking impeaching convictions long since thought final. In other words, the dissent would make its “penumbral” Loper rationale fully retroactive. If one may further extrapolate from the dissent’s rationale that convictions invalid under the Loper-type rationale similarly cannot be used to impeach, combined with the fact that the impeaching conviction may be overturned after the trial of the case appealed, the array of dominoes would be complete. Should any of those convictions fall, then all the convictions which follow would fall also. Indeed, it might be that an appellant need not have testified at his trial in order to attack it under such a Loper-type rationale. For example, suppose the instant appellant’s argument were that he did not testify at his rape trial because of the existence of another rape conviction which would have been used to impeach him, but which has since been invalidated? This question was raised, but not decided, in United States v. Cole, 463 F. 2d 163, 170 (2d Cir. 1972).

4 . Instead, the dissent prefers citing decisions which made Douglas and Griffin retroactive, and asserts that retroactivity is “a result indicating the Court’s view that the denial of the right to appeal creates the possibility of an unreliable verdict.” [Emphasis added.]

5 . Although United States v. Martinez, 413 F.2d 61 (7th Cir. 1969) is sometimes cited as supporting Beto v. Stacks, its procedural posture was completely different. Therein the question was whether, at sentencing, a convicted defendant could challenge the constitutional validity of prior convictions which the government sought to introduce to enhance punishment under a recidivist statute. The court held that such challenges should be permitted, and that unconstitutional convictions may not be considered thereafter to increase the sentence.

6 . I might add that the lead opinion in Loper was merely a plurality opinion. Mr. Justice White wrote a concurring opinion, and Chief Justice Burger, along with Justices Blackmun, Powell and Rehnquist dissented. Given the close division in Loper, which involved convictions void under Gideon, I doubt that the High Court will leap at the opportunity of extending it to convictions which are constitutionally impaired in any fashion. See, e. g., United States v. Penta, supra, cert. denied, 414 U.S. 870, 94 S.Ct. 89, 38 L.Ed.2d 88 (1973).