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COMMONWEALTH v. DALE (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
DALE, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas of Lancaster County, Oct. T., 1971, Nos. 2158 and 2159, in case of Commonwealth of Pennsylvania v. Leslie Eugene Dale.

COUNSEL

Leslie Eugene Dale, in propria persona, and Theodore S. Danforth, Public Defender, for appellant.

Ronald L. Buckwalter, First Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Concurring and Dissenting Opinion by Price, J. Watkins, P. J., and Van der Voort, J., join in this concurring and dissenting opinion.

Author: Spaeth

[ 232 Pa. Super. Page 214]

For the reasons given in Judge Price's opinion, appellant's conviction for larceny of a motor vehicle is affirmed and his convictions for burglary and larceny are reversed. However, where Judge Price would "grant a new trial on those charges [of burglary and larceny]," a majority of the court is of the opinion that appellant must be discharged.

[ 232 Pa. Super. Page 215]

Appellant filed two motions: a motion for new trial, and a motion in arrest of judgment.*fn1 It is important to distinguish between these motions.

The motion for new trial alleged that the verdicts of guilty of burglary and larceny were "contrary to the evidence" or "contrary to the weight of the evidence." "Contrary" means "diametrically different . . . opposite in character or nature . . . mutually opposed . . . ." Webster's Third New International Dictionary 495 (1961). Here, the evidence was not "opposed" to the finding of guilt but consistent with that finding. The difficulty, as Judge Price's opinion shows, is that the evidence was insufficient to support the finding. The motion for new trial was therefore properly denied.

The argument that the evidence was insufficient was made by the motion in arrest of judgment. This was in accordance with the Act of June 15, 1951, P. L. 585, § 1, 19 P.S. § 871, which provides that "the defendant . . . may make a motion in arrest of judgment on the grounds that the evidence was insufficient to sustain the charge . . . ." The Act goes on to provide that on such motion, "if the court, after consideration of the entire record, shall decide that there is not sufficient evidence to sustain the conviction, it shall forthwith discharge the defendant and dismiss the case."

A case similar to the present case, and illustrating the application of the Act of June 15, 1951, supra, is

[ 232 Pa. Super. Page 216]

The judgment of sentence for larceny of a motor vehicle is affirmed; the judgments of sentence for burglary and larceny are reversed, and as to ...


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