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COMMONWEALTH PENNSYLVANIA v. ROBERT GRAEFF (03/12/82)

filed: March 12, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT GRAEFF, APPELLANT



No. 1974 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal No. 56 of 1979.

COUNSEL

George E. Goldstein, Pottstown, for appellant.

Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.

Wickersham, Popovich and Watkins, JJ.

Author: Popovich

[ 296 Pa. Super. Page 481]

On June 19, 1979, appellant, Robert J. Graeff, was found guilty by a jury of Delivery of a Controlled Substance (methamphetamine).*fn1 Post-trial motions were timely filed

[ 296 Pa. Super. Page 482]

    and denied. Thereafter, appellant was sentenced to a term of imprisonment of eleven and one-half (11 1/2) to twenty-three (23) months in the Lancaster County Prison. On appeal, appellant complains that the evidence was not sufficient to sustain his conviction. More particularly, appellant protests that the Commonwealth, by its failure to establish that "the quantity of th[e controlled] substance involved had a potential for abuse associated with a stimulant effect upon the [central] nervous system[,]" fell short of proving all the essential elements of the offense charged. We disagree and, accordingly, affirm the judgment of sentence.

Before reaching the merits of appellant's claim, we need to discuss the trial court's and the Commonwealth's contention that the issue raised cannot be addressed "because it was waived and not preserved at trial[,]" since the appellant omitted to enter a demurrer at the close of the Commonwealth's case-in-chief. Such proposition is predicated upon Commonwealth v. Keysock, 236 Pa. Super. 474, 345 A.2d 767 (1975), wherein it was noted that a litigant must make a timely, specific objection at trial and raise the issue on post-trial motion in order to preserve it. We observe that such requirement is codified in Pa.R.Crim.P. 1123(a), which provides that, in reviewing written motions for a new trial and in arrest of judgment, a trial judge may consider "[o]nly those grounds . . . which were raised in pre-trial proceedings or at trial," unless he, upon cause shown, allows otherwise.

Initially, it must be conceded that Rule 1123, despite its directive, "does not suspend" the Act of June 15, 1951, P.L. 585, § 1, 19 P.S. § 871,*fn2 (see Comment to Rule 1123), which reads:

"Hereinafter, in all criminal prosecutions in this Commonwealth in which the jury shall have rendered a verdict against the defendant, the defendant may, in addition to making a motion in arrest of judgment on the grounds that there is error appearing on the face of the record,

[ 296 Pa. Super. Page 483]

    may make a motion in arrest of judgment on the grounds that the evidence was insufficient to sustain the charge, and 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."

Prior to the promulgation of the aforecited Act, the rule was that a motion in arrest of judgment would be granted only for causes appearing upon the face of the record, which consisted of the indictment, the plea and issue and verdict, and the insufficiency of the evidence gave no support to such a motion. Commonwealth v. Haimbach, 151 Pa. Super. 581, 30 A.2d 653 (1943); accord Commonwealth v. Coyle, 190 Pa. Super. 509, 154 A.2d 412 (1959); Commonwealth v. Samuel, 168 Pa. Super. 592, 80 A.2d 863 (1951). Therefore, when the legislature for the first time passed an act relating to a motion in arrest of judgment (19 P.S. § 871) it clearly took cognizance of the fact there was then in existence the motion in arrest of judgment and simply added the insufficiency of evidence as an additional ground. Commonwealth v. Herstine, 264 Pa. Super. 414, 399 A.2d 1118 (1979). Thus, were we to hold, as the trial court and the Commonwealth would have us do, that the appellant's failure to demurrer to the evidence (see Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979)) precludes him from attacking the sufficiency of the evidence, Section 871 would be rendered a nullity. This we cannot do. The General Assembly intends that a statute be effective and certain, and does not intend a result that is absurd or unreasonable. 1 Pa.C.S.A. § 1922(1) & (2) (Supp.1964-80); Commonwealth v. Herstine, supra.

Consequently, we find that, under the statutory provision of Section 871, appellant preserved an assault on his conviction on the ground of insufficiency of the evidence.*fn3 By so

[ 296 Pa. Super. Page 484]

    doing, "'it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed [the verdict could properly have been based], it would be nonetheless insufficient in law to find beyond a reasonable doubt that the [defendant] is guilty of the crime charged.'"*fn4 (Citations omitted) Commonwealth v. Meadows, 471 Pa. 201, 204, 369 A.2d 1266, 1268 (1977).

Consistent with the dictates of Meadows, we will review the sufficiency claim, and, additionally, respond to appellant's protestation that the Commonwealth was remiss in not proving that: 1) the quantity of methamphetamine sold by him had a potential for abuse; and ...


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