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COMMONWEALTH PENNSYLVANIA v. ANTHONY PONDER (11/03/78)

decided: November 3, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ANTHONY PONDER



No. 2225 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, as of January Sessions, 1977, Nos. 1754-1758, granting Appellee's Motion in Arrest of Judgment and Discharging Appellee.

COUNSEL

G. Barthold, Assistant District Attorney, with him Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellant.

No appearance entered nor brief submitted for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort and Hester, JJ. Hester, J., files a dissenting opinion, in which Price, J., joins. Hoffman and Spaeth, JJ., did not participate in the consideration or decision of this case.

Author: Cercone

[ 260 Pa. Super. Page 226]

This case comes before us on a Commonwealth lth appeal from an order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, granting defendant-appellee's motion in arrest of judgment.

[ 260 Pa. Super. Page 227]

Appellee was convicted, in a non-jury trial, of recklessly endangering another person, criminal conspiracy, possession of an instrument of crime, simple assault, aggravated assault, and robbery. A motion for a new trial and/or arrest of judgment was filed. The court arrestedment because of retrospective doubts as to the accuracy of the identification of appellee by the complaining witness. It is not disputed that the complainant's testimony, if believed, was sufficient to support the verdict. This conclusion defeats a motion in arrest of judgment, for the question to be answered in deciding such a motion, as stated in Commonwealth v. Froelich, 458 Pa. 104, 106, 326 A.2d 364, 365 (1974) is as follows:

"[Whether] accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed the jury could properly have based its verdict; it would be nonetheless insufficient in law to find beyond a reasonable doubt that the appellee is guilty of the crime charged."

The Supreme Court made clear in Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266, 1269 (1977) that the same standard applies to a non-jury trial and reversed a trial court who had failed to apply it:

". . . [A]n examination of the trial court's opinion in support of granting the motion in arrest of judgment reveals that the trial court, in passing on that motion, engaged in a weighing of the evidence, rather than determining the absence or presence of that quantum of evidence necessary to establish some proof of the elements of the crimes . . . In view of the fact that the initial verdict was guilty, it is apparent that the trial court re-evaluated Ostroff's credibility and the weight to be assigned thereto. As such, the trial court did not follow the standard articulated above for considering a motion in arrest of judgment, but rather weighed the evidence.

Meadows controls the instant case and dictates a reversal of the trial court's ...


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