Appeal, No. 314, April T., 1961, from judgment of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, April T., 1961, No. 113, in case of Commonwealth of Pennsylvania v. Philip Scasserra. Judgment reversed.
Hymen Schlesinger, with him M. Y. Steinberg, for appellant.
Martin Lubow, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 199 Pa. Super. Page 201]
OPINION BY MONTGOMERY, J.
Defendant Philip Scasserra was indicted for burglary. He waived a jury trial and on August 18, 1961, was found guilty by Hon. WILLIAM F. CERCONE. On August 25, 1961, he was sentenced to two and one-half to five years and ordered sent to the Western Correctional Diagnostic and Classification Center of Pennsylvania, from which sentence he has appealed.*fn1
On August 22 defendant had filed a motion for a new trial which was not specifically disposed of at the time of sentence but was argued before a court en banc and dismissed on May 17, 1962, which was subsequent to the taking of this appeal on September 26, 1961. By an amendment to his motion defendant sought to convert it into one for both a new trial and in arrest of judgment. The court en banc refused both, although it could have disposed of the one in arrest of judgment without consideration since it was not timely filed, the amendment incorporating it being made long after the time allowed for such motions. In fact, neither should have been disposed of since the record had previously
[ 199 Pa. Super. Page 202]
been removed to this Court; furthermore, the judgment of sentence was, in fact, a disposition of same. Commonwealth v. Grow, 48 Pa. Superior Ct. 373.
Appellant-defendant has assigned numerous reasons why he should be granted a new trial or have the judgment arrested. However, since the motion to arrest the judgment was untimely, we shall not consider the reasons offered in its support; and since we are of the opinion that the ends of justice require a new trial, we shall discuss only our reason for that action.
This case was tried on August 18, 1961, and a verdict of guilty entered the same day. The court made no order continuing the hearing, but did provide for sentencing on Friday of the following week, August 25, 1961, indicating that some presentence investigation would be made. However, on that day, instead of proceeding with the sentence, the hearing was reopened and additional testimony taken on the qualification of one of the expert witnesses who had testified at the earlier hearing, and in addition, testimony was taken from another expert in corroboration of the first. At the conclusion of this additional testimony the court said (p. 77): "Let the record show that the testimony of Mr. Valenta and Mr. Botton was made for the purpose of qualifying and developing the qualifications of these men, and it is their entire testimony upon which the court's opinion is founded. ..." Judge CERCONE then proceeded again to declare appellant guilty of burglary, and pronounced sentence.
In Commonwealth v. Brown, 192 Pa. Superior Ct. 498, 162 A.2d 13, we held that once a decision was made in a criminal case, tried without a jury as authorized by the Act of June 11, 1935, P.L. 319, No. 141, as amended, 19 P.S. § 786 et seq. (pp), that decision is a general verdict as though rendered by a jury, and, therefore, the trial ...