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COMMONWEALTH PENNSYLVANIA v. GERALD PARKER A/K/A EDWARD ALSTON (06/23/82)

SUPERIOR COURT OF PENNSYLVANIA


argued: June 23, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GERALD PARKER A/K/A EDWARD ALSTON

NO. 2477 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 277-278 of February Sessions, 1979.

COUNSEL

Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Andrew G. Gay, Philadelphia, for appellee.

Wickersham, McEwen and Lipez, JJ. Lipez, J., files a concurring opinion.

Author: Mcewen

[ 305 Pa. Super. Page 518]

We here consider an appeal by the Commonwealth from a sua sponte post-verdict order of the Common Pleas Court which purported to "change" verdicts of guilty entered by the court, following a non-jury trial, to verdicts of not guilty. The post-verdict order amending the verdicts was entered some two weeks after the original verdicts had been entered and recorded. We are compelled to vacate the order amending the verdicts and reinstate the original guilty verdicts.

Appellee was found guilty of robbery and possession of an instrument of crime after a non-jury trial. The Commonwealth, at the pre-trial suppression hearing held on the motion to suppress the identification, had established the victim to be unavailable, pursuant to 42 Pa.C.S.A. § 5917, and read his preliminary hearing testimony into the record of the suppression hearing. The court immediately denied

[ 305 Pa. Super. Page 519]

    the motion to suppress the former testimony of the victim and, then, proceeded with the non-jury trial of appellant. The preliminary hearing testimony of the victim was determined to be admissible and was incorporated into the notes of trial testimony. That testimony established that appellee had come upon the victim from behind on a Philadelphia street and placed either a gun or some other instrument which "clicked" at the back of the victim's head and demanded money. The robber relieved him of approximately $190.00 in five and ten dollar denominations and then told the victim to remove his shoes which were subsequently thrown down onto nearby railroad tracks. When the robber then fled, the victim called the police to report the robbery and described the assailant as a negro male, approximately thirty years old, five feet eight inches tall and wearing a brown coat, brown pants, a goatee and a mustache. The police officers, in a short while, returned to the scene with appellee who was identified by the victim as the man who robbed him. Although a sum of $51.65 was found on his person, appellee was not found to be in possession of any weapon. The arresting officer testified that the victim identified appellant as the man who robbed him.

Appellee testified at trial that he was wearing a maroon suede jacket and blue pants on the night of the robbery and stated that he did not have a beard although he had not shaved in two days. He denied committing any robbery. He further testified:

Q. Did the victim say you were the man who robbed him?

A. Not at the scene of the crime. He said -- when we got, when they took me to the 25th Detective Bureau, and then he came there, and then he said, they asked him, he was standing beside me and they said, "Is this the guy that robbed you?" He looked at me real good. At first he said, "I don't know." And the Detective kept on pressuring and pressuring and he said, "I think so. Look, I just want my money, that is all." (N.T. p. 64).

[ 305 Pa. Super. Page 520]

Immediately following the close of the testimony of appellant, the court found appellant guilty of robbery and possession of an instrument of crime and entered an order so stating on August 6, 1981. Although the court informed appellee of his post-verdict rights in accordance with Pa.R.Crim.P. 1123, no post-verdict motions were ever filed. Thereafter, on August 20, 1981 four days past the deadline for filing post-verdict motions, the court entered the following order:

AND NOW, this 20th day of August, 1981, upon reconsideration of the facts in the above captioned matter, it is hereby Ordered and Decreed, pursuant to 42 Pa.C.S.A. § 5505, that the verdict of guilty entered on August 6, 1981, shall be changed to a verdict of Not Guilty and the said Not Guilty verdict entered. (emphasis supplied).

Preliminarily, the Commonwealth contends that it may properly appeal from the challenged post-verdict order which changed the verdicts of guilty to not guilty since an appellate reversal of that order would result only in the reinstatement of the original verdicts and would not intrude upon the double jeopardy rights of appellee.

It is clear that the Commonwealth may properly appeal the order in question since it (1) raises a clear question of law -- the propriety and efficacy of the August 20 order which purported to change the original guilty verdicts entered by the trial court following the non-jury trial of appellee to verdicts of not guilty -- and (2) effectively discharges the appellee and terminates the prosecution. See Borough of West Chester v. Lal, 493 Pa. 387, 391 n. 4, 426 A.2d 603, 604 n. 4 (1981); Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961); Commonwealth v. Davis, 247 Pa. Super. 450, 372 A.2d 912 (1977).

[ 305 Pa. Super. Page 521]

The entry by a trial court of a verdict of acquittal in a criminal proceeding usually cannot be reviewed without placing the defendant twice in jeopardy in violation of the double jeopardy clause. Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43, 53 (1978); Borough Page 521} of West Chester v. Lal, supra; Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1980); Commonwealth v. Lodge No. 148, Loyal Order of Moose, 188 Pa. Super. 531, 149 A.2d 565 (1959). The unique procedural aspects of this case, however, demonstrate that principle is not here applicable. The challenged order is not truly a verdict of acquittal, but an order purporting to change already recorded and docketed verdicts of guilty, entered by a previous order, to verdicts of not guilty. Since we limit our review only to the procedural propriety of the subsequent order it is clear that appellee will not be twice placed in jeopardy by our review. Vacation of the challenged order necessarily has the effect of reinstating the original verdicts of guilty.*fn1 See, e.g., United States v. Kopp, 429 U.S. 121, 97 S.Ct. 400, 50 L.Ed.2d 336 (1976) (government could properly appeal from an order dismissing an indictment which was entered after the defendant was found guilty in a non-jury trial but prior to sentencing). Accord, United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976). In Morrison, supra, the Supreme Court found that since success on such an appeal would result in reinstatement of a general finding of guilty rather than in further factual proceedings relating to guilt or innocence, the appeal was not barred by double jeopardy. Accord, United States v. Rose, 429 U.S. 5, 97 S.Ct. 26, 50 L.Ed.2d 5 (1976); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); See also United States v. Dixon, 658 F.2d 181, 187-88, N. 12 at 188 (3rd Cir.1981); United States v. Hecht, 638 F.2d 651 (3rd Cir.1981). Therefore, we find that the appeal of the Commonwealth is properly before the court.

The Commonwealth contends that the trial judge erred in reconsidering the facts and changing the verdict. The Commonwealth argues that a trial judge may not use "reconsideration" pursuant to 42 Pa.C.S.A. § 5505 to subvert

[ 305 Pa. Super. Page 522]

    the principle that a guilty verdict cannot be changed post-verdict on the basis of a factual redetermination. We agree.

Although we have found no Pennsylvania decision which discusses a sua sponte reconsideration and change of verdicts by the trial court, we believe the case is analogous to Commonwealth v. Brown, 192 Pa. Super. 498, 162 A.2d 13 (1960) and Commonwealth v. Christian, 215 Pa. Super. 8, 257 A.2d 83 (1969). In Brown, supra, the trial court found the defendant guilty of larceny by bailee following a non-jury trial. In response to a motion in arrest of judgment, the trial court entered a finding of not guilty from which the Commonwealth appealed. There we held that "the hearing judge had no right, after a finding of guilty, to change his mind over a month later and enter a finding of not guilty . . ." Id., 192 Pa. Super. at 501, 162 A.2d at 14. We stated that the verdict rendered by the trial judge after a non-jury trial is a general verdict and, after recording such a verdict, the authority of the trial judge over it would be the same as in the case of verdict by a jury, that is, "relating to motions in arrest of judgment, or the granting of a new trial." Id., 192 Pa. Super. at 501, 502 n. 1, 162 A.2d at 14 n. 1. We concluded that "in view of [the] expressed purpose [of the trial judge], we shall do what he should have done under those circumstances and grant a new trial." Id., 192 Pa. Super. at 502, 162 A.2d at 14.

Commonwealth v. Christian, supra, found the Commonwealth appealing an order of the Common Pleas Court "by virtue of which a prior guilty verdict was withdrawn and a finding of not guilty entered." Id. 215 Pa. Super. at 10, 257 A.2d at 84. We there stated that the irregular procedure revealed by the record made appellate review mandatory. In that case, following a non-jury trial, the trial judge found the evidence was sufficient to convict the defendant of unlawfully carrying a firearm without a license and entered a verdict of guilty. Some six months later the defense attorney filed a belated petition for motion for new trial and in arrest of judgment nunc pro tunc. Subsequently, a hearing was held at which only the judge and the defense

[ 305 Pa. Super. Page 523]

    attorney were present, and, thereafter, the trial court filed an opinion which indicated that defense counsel had filed motions for new trial, that a new trial had been granted and that, on the basis of the record, the court had found defendant not guilty. On appeal, we observed that there was no evidence in the record of the filing of post-verdict motions or of a second trial. The Commonwealth there argued that where a judge sitting without a jury has found a defendant guilty at the end of a trial, he may not seven months later change his verdict to one of not guilty, and relied principally upon Commonwealth v. Brown, supra. We held that the finding of not guilty entered seven months after the original verdict of guilty was "a complete nullity," and reversed the order of the trial court and granted a new trial. Id. 215 Pa. Super. at 13, 257 A.2d at 85-86.

While we have found no Pennsylvania case which discusses a sua sponte reconsideration of the facts and change of verdicts by the trial court, it is evident that the reconsideration procedure authorized by 42 Pa.C.S.A. § 5505 does not extend to the trial court the authority to change a previously recorded verdict of guilty to one of not guilty. The statute authorizes reconsideration "[e]xcept as otherwise provided or prescribed by law . . ." Since the decisional law previously set forth quite clearly provides otherwise, § 5505 does not provide such authority as to enable the Common Pleas Court to change the original verdicts of guilty to not guilty.

A trial judge has no more authority over a verdict in a non-jury trial than he does over a jury verdict. Commonwealth v. Meadows, 471 Pa. 201, 205, 369 A.2d 1266, 1268 n. 5 (1977); Commonwealth v. Brown, supra; See Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128 (1948); Pa.R.Crim.P. 1102(a). As we have stated, the authority of a trial judge following the recording of a verdict in a non-jury trial is limited to consideration of post-verdict motions in arrest of judgment or the granting of a new trial. Commonwealth v. Meadows, supra; Commonwealth v. Brown, supra. The standard of review for the trial court as it passes upon a

[ 305 Pa. Super. Page 524]

    motion in arrest of judgment, is limited to a determination of the absence or presence of that quantum of evidence necessary to establish the elements of the crime. Commonwealth v. Meadows, supra 471 Pa. at 208, 369 A.2d at 1269; Commonwealth v. Slout, 288 Pa. Super. 471, 432 A.2d 609 (1981); Commonwealth v. Ponder, 260 Pa. Super. 225, 393 A.2d 1235 (1978). Had defendant moved for an arrest of judgment, the trial court would have been required to view the evidence in the light most favorable to the Commonwealth as verdict winner and could not have altered the verdicts based upon a redetermination of credibility or a re-evaluation of the evidence. See Commonwealth v. Meadows, supra; Commonwealth v. Slout, 288 Pa. Super. 471, 432 A.2d 609 (1981); Commonwealth v. D'Angelo, 282 Pa. Super. 1, 422 A.2d 645 (1980); Commonwealth v. Kirkman, 264 Pa. Super. 170, 399 A.2d 720 (1979); Commonwealth v. Ponder, supra.*fn2 Here, however, it is clear that the trial judge engaged in a re-evaluation of the evidence produced at trial. Indeed, the opinion of the court states "the court sua sponte re-considered the facts herein and determined inasmuch as it entertained reasonable doubt as to the defendant's guilt, a not guilty verdict was justified." (Opinion at p. 1).

Since the trial court exceeded its post-verdict authority, we must vacate the order of August 20, 1981 which changed the verdicts of guilty entered August 6, 1981 to verdicts of

[ 305 Pa. Super. Page 525]

    not guilty and thereby reinstate the verdicts of guilty entered by the order dated August 6, 1981. We also remand for filing of post-verdict motions nunc pro tunc.*fn3

Order vacated, verdicts of guilty reinstated and case remanded for filing of post-verdict motions nunc pro tunc.

LIPEZ, Judge, concurring:

I agree with the majority that section *fn55051 of the Judicial Code effected no change in the law so as to authorize a trial court to change a previously entered guilty verdict to a not guilty one. As cogently stated by Judge Montgomery:

In a criminal case tried without a jury, . . . the verdict rendered by the trial judge is a general verdict ". . . as if the defendant had put himself upon the inquest or country for trial, and his cause were being tried before a jury . . ." Therefore, after recording such a verdict, the authority of the trial judge over it would be the same as in the case of a verdict by a jury . . .

Commonwealth v. Brown, 192 Pa. Super.Ct. 498, 501-02 n. 1, 162 A.2d 13, 14 n. 1 (1960); accord, Commonwealth v. Christian, 215 Pa. Super.Ct. 8, 13-14, 257 A.2d 83, 85-86 (1969). However, rather than basing this conclusion on the majority theory that the prior case law falls within section 5505's introductory clause ("Except as otherwise provided or

[ 305 Pa. Super. Page 526]

    prescribed by law"),*fn2 I would simply hold that section 5505 applies only to final orders, as the Supreme Court held with respect to section 5505's predecessor statute, the Act of June 1, 1959, P.L. 342, No. 70, § 1, 12 P.S. § 1032 (Supp. 1978-1979).*fn3 Commonwealth v. Bowden, 456 Pa. 278, 282 & n. 3, 309 A.2d 714, 717 & n. 3 (1972).

Section 5505 substantially reenacts 12 P.S. § 1032, which was repealed when section 5505 went into effect on June 27, 1978. See 42 Pa.C.S. § 5505, Official Source Note; Commonwealth v. Demby, 496 Pa. 509, 512 n. 6, 437 A.2d 1156, 1158 n. 6 (1981).*fn4 The Supreme Court's reasoning in holding

[ 305 Pa. Super. Page 527]

    that 12 P.S. § 1032 applied only to final orders, Commonwealth v. Bowden, supra, is equally applicable to section 5505. Thus section 5505 does not apply to verdicts, which are certainly not final orders.*fn5 Since it is wholly inapplicable

[ 305 Pa. Super. Page 528]

    to verdicts, section 5505 made no change in the law determining a trial judge's authority over his own verdict. That authority remains as it was before passage of section 5505, i.e., once a non-jury verdict is entered, it can only be overturned for the same reasons as a jury verdict. Commonwealth v. Brown, supra; see Commonwealth v. Nelson, 245 Pa. Super.Ct. 33, 38-39, 369 A.2d 279, 282 (1976) (concurring opinion by Spaeth, J.). Consequently, the trial judge here had no authority to change his verdict of "guilty" to "not guilty".


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