Appeal from order of Superior Court, April T., 1970, No. 175, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, June T., 1969, No. 279, in case of Commonwealth of Pennsylvania v. Darrell W. Dzvonick.
Arnold M. Friedman, with him Edward B. Friedman, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Concurring Opinion by Mr. Justice Nix. Dissenting Opinion by Mr. Chief Justice Jones. Mr. Justice Pomeroy joins in this dissenting opinion.
At 6:00 a.m., on April 15, 1969, Officer Uziel of the Borough of Glassport Police Department, drove up to the Borough Police Station. Appellant, Darrell Dzvonick, immediately came out of the station toward Officer Uziel's car with a knife held at arm's length. He lunged at the officer with the knife through the open car window, but did not "cut, stab, or wound" the officer. Appellant was immediately arrested and subsequently charged with both attempt with intent to kill*fn1 and assault with intent to maim.*fn2 He pleaded not guilty to both charges and was tried before a jury.
On September 29, 1969, the jury returned verdicts of not guilty of attempt with intent to kill and guilty on the second charge of assault with intent to maim. Appellant filed no post-trial motions. However, after a change of counsel, and appeal to the Superior Court, he was permitted to file motions for a new trial and in arrest of judgment "nunc pro tunc". The motion for a new trial was later withdrawn, and the motion in arrest of judgment was denied.
Appellant appealed the denial of his motion in arrest of judgment to the Superior Court which affirmed by a per curiam order. We granted allocatur.
Appellant cites three principal errors as the basis for relief on this appeal. He asserts that the verdict of guilty of assault with intent to maim as returned by the jury and recorded by the court is unsupported by the evidence and therefore his motion in arrest of judgment should have been granted. The Commonwealth concedes that the jury's verdict was not supported by the evidence,*fn3 but nevertheless claims that the court molded the jury's verdict to that of guilty of attempted assault with intent to maim. In response appellant asserts that the court did not mold the verdict to guilty of the attempt offense, nor could it have done so after discharging the jury. Finally appellant contends, arguendo, that even if the verdict was so molded it could not stand because there is no such offense as "attempted assault with intent to maim." In view of our disposition of the case we need not deal with the last challenge.
The Commonwealth claims that after the jury returned a verdict of guilty of assault with intent to maim (the completed offense), the court molded the verdict to guilty of attempted assault with intent to maim. However, the Commonwealth's claim of such molding is nowhere supported in the record. The following excerpt from the record establishes that the only "molding" which occurred was the court's insertion of the date, which the jury had inadvertently
omitted. "Minute Clerk: Who will read the verdict? The Foreman: I will. The jury finds the defendant guilty on the second count. The Court: All right. You find him not guilty on the first count? Is that correct? (Jury indicates affirmative.) The Court: We will record the verdict. Minute Clerk: Members of the jury, Harken to your verdict as the Court hath recorded it between the Commonwealth and the defendant Darrell Dzvonick, wherein the defendant is charged of the first count, attempt with intent to kill, and the second count, assault with intent to maim, you say you find the defendant not guilty of the first count and guilty as to the second count. I might mention to the Court the jury left out the date. The Court: All right. Well, we'll mold the verdict; but including today's date, there's no objection by counsel? Mr. Mansmann: No. The Court: We will make it September 29, 1969. (Jurors Excused)"
The record discloses no other molding of the verdict whatsoever by the trial judge, either before or after the jury was excused. Moreover, once the jury has been discharged and has dispersed, the verdict can no longer be molded by the trial judge. Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325 (1954); Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128 (1948); cf. Commonwealth v. Corbin, 215 Pa. Superior Ct. 63, 257 A.2d 356 (1969).*fn4
The guilty verdict returned by the jury and recorded by the court was not, and could not in the circumstances be molded.*fn5 Thus, appellant stands convicted of the completed offense -- assault with intent to maim. Since both the Commonwealth and appellant readily concede that the "assault" verdict is not supported by the evidence, it necessarily follows that the verdict may not stand.
Accordingly, the order of the Superior Court is reversed and the motion in arrest of judgment is granted.
Order of Superior Court reversed and motion in arrest of ...