Appeal from order of Court of Common Pleas of Philadelphia County, Nov. T., 1967, No. 1272, in case of Commonwealth of Pennsylvania v. Samuel Christian.
James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Alfred P. Filippone, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Wright, P. J.
[ 215 Pa. Super. Page 10]
We are here concerned with an appeal by the Commonwealth from an order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, by virtue of which order a prior guilty verdict was withdrawn and a finding of not guilty entered. Ordinarily, where a defendant has been found not guilty, the Commonwealth has no right of appeal: Commonwealth v. Lodge No. 148 Loyal Order of Moose et al., 188 Pa. Superior Ct. 531, 149 A.2d 565; Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118. However, the irregular procedure revealed by this record makes appellate review mandatory.
On September 18, 1967, at Columbia Avenue and Eighteenth Street in the City of Philadelphia, one Tyrone Bryant was wounded by a revolver shot. The appellee, Samuel Christian, was arrested as he fled from the scene of the shooting. In Christian's possession the arresting officer found a revolver with five cartridges, four empty and one loaded. The grand jury at November Term 1967 returned four bills of indictment against Christian as follows: Bill No. 1271 charged simple assault and battery, aggravated assault and battery and assault and battery with intent to murder. Bill No. 1272 charged carrying a concealed deadly weapon and unlawfully carrying a firearm without a license. Bill No. 1273 charged playfully and wantonly pointing a firearm. Bill No. 1274 charged attempt with intent to murder. When these
[ 215 Pa. Super. Page 11]
indictments were called for trial, May 17, 1968, jury trial was waived and the testimony was heard by a judge sitting without a jury. At the conclusion of the trial the judge made the following statement: "There is not enough evidence to sustain a conviction on bill number 1274; there is not enough evidence to sustain a conviction on bill number 1271; and there is not enough evidence to sustain a conviction on bill number 1273, and accordingly he is found not guilty on those three bills. He is found guilty on the 2nd count of bill number 1272, unlawfully carrying a firearm without a license. He is held for presentence investigation . . . This might have been first degree murder".
On November 19, 1968, Christian's trial attorney filed a belated "Petition for Motion for New Trial and in Arrest of Judgment Nunc Pro Tunc". No reasons were therein asserted for the granting of a new trial or for the arrest of judgment. The petition was addressed solely to the proposition that a hearing should be granted "to determine whether or not he intelligently waived his right to appeal and, if not, for the filing of post-trial motions and the proper perfection of petitioner's appeal". Attached to the petition was an order in the form of a rule on the district attorney "to show cause why a hearing should not be granted for the filing of post trial motions nunc pro tunc". This order was not dated, and no return day for the rule was fixed. It was nevertheless signed by the trial judge, and lodged in the office of the court administrator, December 4, 1968, who scheduled a hearing for December 20, 1968. The record does not show that the district attorney had notice of the presentation of the petition or of the making of the order. Nor is there anything to indicate that a rule was ever issued or served on the district attorney. The transcript
[ 215 Pa. Super. Page 12]
of the hearing is set forth in full in the footnote.*fn1
Following the lodging of the instant appeal, the court below filed an opinion in compliance with our Rule 46. The trial judge therein explains his action as follows: "We entered a directed verdict of not guilty as to all bills except the charge of carrying a deadly weapon without a license. As to that charge we had a reasonable doubt, but before a verdict was pronounced, the file was handed up with the ...