No. 1143 Philadelphia 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Div., Phila. County, Nos. 1479-1481 March 1979, No. 2529 Oct. Term 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Div., Criminal Sect. at Nos. 530-531, 533 July Term 1978, No. 900 Philadelphia 1980, Appeal from Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Div., Criminal Sect. at Nos. 642, 643 August Term 1978.
Michael A. DeFino, Philadelphia, for appellant (No. 1143).
Daniel Paul Alva, Philadelphia, for appellant (No. 2529).
Edward M. Flannery, Philadelphia, for appellant (No. 900).
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, P.j., and Spaeth, Cavanaugh, Wieand, McEwen, Cirillo and Montemuro, JJ. Wieand, J., files a concurring and dissenting opinion in which Cavanaugh and Montemuro, JJ., join.
[ 315 Pa. Super. Page 259]
We ordered these three appeals consolidated because the principal issue in each of them is whether a "boilerplate" post-verdict motion -- that is, a motion stating only that "the evidence was insufficient to support the verdict" or that "the verdict was against the weight of the evidence" -- preserves any issue for appellate review. On this issue, we have found the law far from clear, and we have been unable to agree on how the pertinent decisions should be interpreted. However, we do all agree with Judge WIEAND's discussion of the facts, and also, that on those facts, the judgments of sentence should be affirmed, except for the judgment of sentence for criminal trespass, which should be vacated. The opinion that follows therefore does not repeat but incorporates Judge WIEAND's discussion of the facts.
In the opinions filed today -- this opinion and Judge WIEAND's -- we have undertaken to explain our difficulty in deciding how the pertinent decisions should be interpreted. We hope that this effort will prove helpful to the Supreme Court in its continuing examination of the Rules of Criminal Procedure, in particular, of Rule 1123. Meanwhile, pending further interpretation of Rule 1123, and its possible amendment, by the Supreme Court, a majority of us -- the President Judge, Judge McEWEN, Judge CIRILLO, and I -- have concluded that the fairest way to proceed is to hold that for the time being, boilerplate post-verdict motions should be treated as in compliance with Rule 1123, but that effective sixty days from today, a post-verdict motion, either that "the evidence was insufficient to support the verdict," or that "the verdict was against the weight of the evidence," will preserve no issue for appellate review
[ 315 Pa. Super. Page 260]
unless the motion goes on to specify in what respect the evidence was insufficient, or why the verdict was against the weight of the evidence.
As Judge WIEAND, in his opinion at 268-69, points out, every defendant has the right to have an appellate court determine whether the evidence was sufficient to support the verdict, and whether the verdict was against the weight of the evidence. But this right may be waived. And it will be waived if the defendant does not proceed properly.
The proper procedure to challenge the sufficiency of the evidence is by a post-verdict motion in arrest of judgment. See: 19 P.S. § 871, repealed by Act of April 28, 1978, P.L. 202 No. 53, § 2(a), Pa.R.Crim.P. 1124 effective July 1, 1983. Order of January 28, 1983, No. 112 Crim.Pro. Rules Docket No. 2. If the defendant only wishes to challenge the weight of the evidence, the proper procedure is by a post-verdict motion for a new trial. Harris v. Ruggles Lumber Co., 376 Pa. 252, 101 A.2d 917 (1954) (new trial granted where verdict against weight of evidence); Commonwealth v. Harbaugh, 197 Pa. Super. 587, 179 A.2d 656 (1962) (same); Pa.R.Crim.P. 1123. The proper procedure for filing these post-verdict motions is specified in Pa.R.Crim.P. 1123.
Rule 1123(a) provides that when post-verdict motions for a new trial and in arrest of judgment are heard, "only those issues raised and the grounds relied upon in the motions may be argued." Pa.R.Crim.P. 1123(a). The difficulty with the rule is that it does not say with what degree of specificity the motion must state the "issues raised and the grounds relied upon." Is an "issue raised" when a motion states that "the evidence was insufficient to support the verdict," or that "the verdict was against the weight of the evidence?" Are these assignments of error statements of "grounds relied upon?"
In Commonwealth v. Davis, 477 Pa. 197, 383 A.2d 891, (1978), the Supreme Court held that a motion for a new trial
[ 315 Pa. Super. Page 261]
that "stated that 'the verdict is contrary to the weight of the evidence' . . . [stated] a proper ground for relief . . . ." Id., 477 Pa. at 203, 383 A.2d at 894 (citations omitted). This decision is consistent with the provision in the Act of June 15, 1951, P.L. 585, § 1, 19 P.S. § 871, that a motion in arrest of judgment may be made "on the ground that the evidence was insufficient to sustain the charge . . . ." Thus it would seem that both assignments of error -- that the evidence was insufficient, and that the verdict was against the weight of the evidence -- state "a proper ground for relief," and, therefore, are within Rule 1123(a).*fn1
The difficulty with this conclusion is that in a line of decisions starting with Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), the Supreme Court has engaged in reasoning that seems inconsistent with Davis.
In Blair the Supreme Court said:
Appellant's written post-trial motions were boiler plate challenges to the sufficiency of the evidence. Although counsel apparently made more specific oral motions that were considered by the court, the Pennsylvania Rules of Criminal Procedure, rule 1123(a), 19 P.S. Appendix, requires written post-trial motions.
The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth, issues not presented in compliance with the rule will not be considered by our trial and appellate courts.
Id., 460 Pa. at 33 n. 1, 331 A.2d at 214 n. 1.
[ 315 Pa. Super. Page 262]
The exact meaning of this statement is unclear to us, for the Court does not say how an issue must be presented to be "presented in compliance with" Rule 1123(a). The statement may be read as meaning only that to be in compliance with the rule, an issue must be presented in writing, not orally; but the Court's pejorative reference to "boiler plate" may be read as implying that even if in writing, "boiler plate" is not in compliance with the rule.
For a time the cases seemed to focus on the requirement that to be presented in compliance with Rule 1123(a), an issue must be presented in writing. In several cases the Court declined to enforce Blair, granting appellate review of an issue that had not been presented in a written post-verdict motion so long as it had been briefed to the lower court and the court had considered it on the merits. See, e.g., Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977). In Pugh, however, Justice NIX expressed his dissatisfaction with this practice, stating in dissent:
Since Blair, this Court has repeatedly emphasized the need to include issues in written motions in order to preserve them for review.
The exception to Blair which was created in Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977), and is applied as "controlling" in this case, not only permits but actually fosters violations of Rule 1123. A trial court which has objections to a verdict presented to it by way of a written memorandum on the day of argument, rather than by written motion within the time limits specified by the rule, knows that it may safely engage in the practice condemned by Blair by proceeding to consider such objections on the merits. Under the majority's reasoning, the violation of Rule 1123 by both trial attorney and trial court not only results in no sanctions, but also assures the offending party of full appellate review.
[ 315 Pa. Super. Page 263331]
A.2d 213 n. 1 (1975).") See also, Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980). And in Commonwealth v. Pronkoskie, 498 Pa. 245, 445 ...