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COMMONWEALTH v. RAY (06/28/72)


decided: June 28, 1972.


Appeal from order of Superior Court, Oct. T., 1969, No. 987, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1968, No. 519, in case of Commonwealth of Pennsylvania v. Frederick Ray.


Thomas C. Carroll, Assistant Defender, with him Francis Wright, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

James D. Crawford, Deputy District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 448 Pa. Page 308]

Frederick Ray was observed by two police officers acting in a suspicious manner as he stood on the northwest corner of Wallace and Eleventh Streets in Philadelphia. He furtively glanced at the officers and then made a sudden dash into a nearby bar, causing the police to chase in hot pursuit. Upon reaching the bar, the officers saw Ray drop a .22 calibre pistol to the floor, a firearm which later was discovered to be loaded

[ 448 Pa. Page 309]

    and unlicensed. Ray was taken into custody on the spot, escorted to police headquarters and later taken before a magistrate. Subsequently, an indictment was returned by the grand jury charging Ray with carrying a concealed deadly weapon,*fn1 and unlawfully carrying a firearm without a license.*fn2 Attached to the indictment was a small slip of paper reciting a summary offense*fn3 against Ray to wit, violation of Section 10-814 of the Philadelphia Code.*fn4

[ 448 Pa. Page 310]

On May 22, 1969, Ray appeared before the court for trial. The charges in the indictment were read to him (no mention was made of the summary offense) and Ray waived his right to trial by jury.

The first witness called by the Commonwealth was a police officer who had observed Ray with the gun and who had made the arrest. The next state witness, another policeman, testified that a search of the records revealed no license for the firearm had been issued. This same witness then attempted to testify concerning an incriminating statement Ray made to the police. The trial judge refused to allow this evidence, citing as his reason the Commonwealth's failure to establish a corpus delicti. The court asserted that the element lacking for proof of the corpus was that of concealment.

The assistant district attorney urged the court to allow the evidence of the statement to establish Ray's guilt under Section 10-814 of the Philadelphia Code, an offense which does not have concealment as a component part. The following colloquy then took place between the court and the state's attorney:

"Mr. Cox [assistant district attorney]: Not the essence, the summary offense charged on the indictable [sic], the summary would be a violation of the City ordinance 10-814 which is possession of an unlicensed weapon.

"The Court: Do you want a ruling on that one?

"Mr. Cox: Yes, sir.

"The Court: I rule that the City ordinance is unconstitutional.

The ordinance is a violation of the Federal Constitution: 'The right of the people to bear arms shall not be infringed.'

I don't like guns any more than you do.

Is there anything further on this particular bill of indictment ?

[ 448 Pa. Page 311]

"Mr. Cox: Beyond the offer of proof on the statement, no Your Honor, no.

"The Court: The verdict is not guilty." [Emphasis added.]

Subsequently, this entry was made in the court docket with respect to the indictable offenses: "Adjudged not guilty." There were no docket entries in respect to the summary offense but someone (not identified) wrote "discharged" across the small slip of paper reciting the summary offense.

The Commonwealth then entered an appeal in the Superior Court. Ray filed a timely motion to quash. Subsequently, the Superior Court denied the motion to quash, and filed an opinion ruling Section 10-814 of the Philadelphia Code was "unconstitutional" because it attempted to extend Philadelphia's authority and power beyond the limits granted by the legislature. See 218 Pa. Superior Ct. 72, 272 A.2d 275 (1970). We granted allocatur.

On the record presented, the Superior Court erred in not quashing the appeal. If in its verdict of "not guilty" the trial court intended to include the asserted violation of Section 10-814 of the Philadelphia Code, an appeal does not lie. The Commonwealth may not appeal from a verdict of "not guilty" entered by the trial court in a criminal prosecution and this is so whether the prosecution be by indictment or by summary proceeding. Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963); Commonwealth v. Lodge No. 148, L.O.O.M., 188 Pa. Superior Ct. 531, 149 A.2d 565 (1959); and, Commonwealth v. Obenreder, 144 Pa. Superior Ct. 253, 19 A.2d 497 (1941).

On the other hand, if the "not guilty" verdict did not dispose of the charge asserted under the Code, then as far as the record is concerned there has been no final order or judgment in respect thereto. An appellate

[ 448 Pa. Page 312]

    court is bound by the record, and a conviction, acquittal or dismissal of criminal charges may not be presumed. See Commonwealth v. Jones, 444 Pa. 114, 282 A.2d 237 (1971).

It is fundamental that generally an appeal will lie only from a definitive order, decree or judgment which finally terminates the action. Middleberg v. Middleberg, 427 Pa. 114, 233 A.2d 889 (1967). Additionally, the right of the Commonwealth to appeal is highly circumscribed. See Gaskins Case, 430 Pa. 298, 244 A.2d 662 (1968). It is true we have ruled the Commonwealth may appeal from certain pretrial orders involving a pure question of law and which in effect terminate the action. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). However, where, as here, the trial court does not agree with the Commonwealth's position on a question of constitutionality or statutory construction, in order to preserve its right to appeal the Commonwealth must insure the entry of an appropriate final order. See and compare, Commonwealth v. Lodge No. 148, L.O.O.M., supra; and Commonwealth v. Arnold, 215 Pa. Superior Ct. 444, 258 A.2d 885 (1969).

The Commonwealth and the Superior Court assumed the notation "discharged" written across the paper reciting the summary offense constituted such a final order, but the only order that may be accorded validity is that appearing in the official trial record. Commonwealth v. Jones, supra. Unless the verdict "not guilty" included the offense charged under the Philadelphia Code, the instant record fails to disclose a final order in respect thereto.

The order of the Superior Court is vacated, and the appeal filed in that court is ordered quashed.


Order of Superior Court vacated, and appeal filed in that Court quashed.

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