Commonwealth ex rel. Tanner v. Claudy , 378 Pa. 429 ( 1954 )

Opinion by

Mr. Justice Arnold,

Relator appeals from an order denying his petition for writ of habeas corpus. He has heretofore been denied an application filed on other grounds: Commonwealth ex rel. Tanner v. Ashe, 365 Pa. 419, 76 A. 2d 210. His present petition was based on allegations that he was not, and that the record did not affirmatively show that he was present when sentenced on May 23, 1946, to life imprisonment, upon conviction of murder in the first degree. In its answer the Commonwealth admitted that the record had no entry showing he was present, bnt alleged that he was actually present, and that the omission to note his presence in the record was a clerical error.

At hearing the Commonwealth conclusively established, by testimony of relator’s counsel in the murder trial and of the prosecutor in that trial, that he was actually present with his counsel when sentence was pronounced. This testimony was fortified by records of the county jail (where he was held until sentence) showing that on May 23, 1348, he was taken to the court house at 9 :G0 A.M., was returned at noon, and was sent to the penitentiary on the same day to serve his sentence.

Thus, the sole question is whether even though he was actually present, the absence of a notation to that effect in the record is sufficient grounds for issuance of the writ. We think not.

It is well recognized that the courts have the power to correct clerical errors in the record: Commonwealth v. Mount, 172 Pa. Superior Ct. 258, 262, 93 A. 2d 887; Commonwealth v. Meyer, 169 Pa. Superior Ct. 40, 43, 82 A. 2d 298; Commonwealth v. Rusic, 229 Pa. 587, 591, 79 A. 140. So that no practical or procedural difficulties are presented on this aspect of the matter. It is also true that “ ‘it is the inherent right of the prisoner in a capital case to be present at every stage of the proceedings ’ ” and “ ‘neither court nor judge can take any step affecting his right in his absence’ ”: Commonwealth v. Johnson, 348 Pa. 349, 352, 35 A. 2d 312. Yet, in no case where the prisoner was present did this Court issue a writ or set aside the sentence merely because of a clerical omission to note his presence in the record. On the contrary, the sentence, and the right of the court to correct the record to show the prisoner’s presence, were upheld in Commonwealth v. Silcox, 161 Pa. 484, 29 A. 105,¹ where this Court stated at page 496: “The first specification complains that the record prior to the amendment . . . did not show the presence of the defendant at every stage of the proceedings which resulted in his conviction. That he was present during the trial and when the sentence was pronounced, and that full opportunity for the exercise of all his rights in relation to both was accorded to him, is not denied. The specification therefore rests on the common law doctrine that in capital cases the record must show affirmatively that the prisoner was present at every stage of the proceedings against him. The contention of the defendant based thereon is that although he toas actually present he is entitled to a new trial because the clerk neglected to note his presence on the record.. In the light of the undisputed facts there is no real merit in this contention; it is purely technical and it ought not to prevail unless the amendment which made the record conform to the fact was unauthorized. We think the amendment was clearly within and a proper exercise of the power of the court. It simply supplied a clerical omission and placed the record in this particular in harmony with the fact. It excluded the possibility of an inference from the record opposed to the truth of the case, but it did not deprive the defendant of any substantial right. What right had he to require that a defect in the record arising from an oversight of the clerk in keeping it and which left room for an inference hostile to the undisputed facts, should be perpetuated for his benefit? He neither lost nor acquired anything by the defect which prevented the correction of it in accordance with these facts.” (Italics supplied). This controls the present case. Although the fact of presence was denied, the contrary was conclusively established and therefore with the record corrected, as it can be, by the court imposing the sentence, the writ must be denied. To rule otherwise would be against common sense, justice and established law. See also Commonwealth ex rel. Wing v. Claudy, 370 Pa. 366, 88 A. 2d 84.

Order affirmed.

1 Cited with approval in Commonwealth v. Johnson, 348 Pa. 349, 35 A. 2d 312.