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COMMONWEALTH PENNSYLVANIA v. MICHAEL LEATHERBURY (07/28/83)

submitted: July 28, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL LEATHERBURY, APPELLANT



No. 2140 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, November Term, 1976, Nos. 1231 & 1233.

COUNSEL

Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Rowley, Beck and Montemuro, JJ.

Author: Rowley

[ 322 Pa. Super. Page 225]

This direct appeal is before us on remand from the Pennsylvania Supreme Court for consideration of (1) appellant's challenge to the sufficiency of the evidence to support his conviction of simple assault and possession of an instrument of crime and (2) appellant's claim that he was prejudiced because the victim did not testify at his non-jury trial. Commonwealth v. Leatherbury, 499 Pa. 450, 451, 453 A.2d 957, 958 (1982).*fn1 Upon review of the record, we find appellant's allegations of error to be without merit, and accordingly, we affirm the judgments of sentence imposing a total of five years probation.

Appellant's fifth reason in support of his motion for "post verdict relief" alleged that "[t]here was insufficient evidence to establish beyond a reasonable doubt that any crime was committed, especially in light of the fact that no complainant ever testified, either at trial or at the preliminary

[ 322 Pa. Super. Page 226]

    hearing."*fn2 Whether appellant moved for arrest of judgment, or a new trial, by this motion is unclear since he merely requested "post verdict relief". As we understand appellant's motion, he sets forth two separate claims of error that would warrant different remedies if either were found to be supported by the record.

An allegation that the evidence is insufficient to support a conviction is properly the basis for a motion in arrest of judgment. Commonwealth v. Holmes, 315 Pa. Super. 256, 270, 461 A.2d 1268, 1275 (1983) (Wieand, J., concurring and dissenting); Pa.R.Crim.P. 1123. In reviewing the sufficiency of the evidence, the test is whether, viewing the record in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Smith, 484 Pa. 71, 74, 398 A.2d 948, 949 (1979); Commonwealth v. Santiago, 476 Pa. 340, 342, 382 A.2d 1200, 1201 (1978).

A claim that the criminal defendant was unfairly prejudiced by the absence of a vital witness' testimony is grounds for a new trial, if correct. Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959); Commonwealth v. Gasiorowski, 225 Pa. Super. 390, 310 A.2d 343 (1973); see also Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970) cert. denied, 402 U.S. 967, 91 S.Ct. 1683, 29 L.Ed.2d 132 (1971) (appellant advanced alternative motions in arrest of judgment and for new trial). The absence of the victim's testimony at trial is irrelevant to the sufficiency analysis because our scope of review does not require that we speculate regarding evidence that may have been presented

[ 322 Pa. Super. Page 227]

    at trial. Thus, these are two separate claims of error and we will treat appellant's motion as though it were properly divided into two separate requests for appropriate appellate relief. Nonetheless, we do not condone the use of an ...


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