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COMMONWEALTH PENNSYLVANIA v. ERIC GAITHER (05/07/86)

submitted: May 7, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ERIC GAITHER, APPELLEE



Appeal from the Order Entered July 11, 1984 in the Court of Common Pleas of Philadelphia County, Criminal No. 84-01-3094.

COUNSEL

Kathleen A. McDonnell, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Ronald J. Pressley, Philadelphia, for appellee.

Cirillo, President Judge, and Wieand and Olszewski, JJ. Wieand, J., files concurring opinion.

Author: Olszewski

[ 355 Pa. Super. Page 503]

This appeal is from the order of the Court of Common Pleas of Philadelphia County reducing the grade of appellee's robbery conviction. Appellee was found guilty in a non-jury trial before the Honorable Judge D'Alessandro of robbery, a felony of the first degree,*fn1 and related charges.*fn2 While post-trial motions were pending, appellee's co-defendant was tried before Judge D'Alessandro and was convicted of robbery, a felony in the third degree and the same accompanying offenses. In response to appellee's post-trial motions which, inter alia, challenged the sufficiency of the robbery conviction, Judge D'Alessandro amended his findings, and downgraded appellee's conviction to robbery, a felony of the third degree. Appellee was then sentenced to a term of four to eight months in the county prison on the

[ 355 Pa. Super. Page 504]

    third degree felony robbery conviction. This appeal is brought by the Commonwealth, which raises one issue for our consideration: whether the trial court erred in arresting judgment of appellee's conviction of first degree felony robbery and substituting a lesser third degree felony robbery conviction.

It is clear that a trial judge has no more authority over a verdict in a non-jury trial than he does over a jury verdict. Following the recording of a verdict in a non-jury trial, the trial judge is limited to a consideration of post-verdict motions in arrest of judgment or the granting of a new trial. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977); Commonwealth v. Parker, 305 Pa. Super. 516, 451 A.2d 767 (1982). In a motion for an arrest of judgment, the trial judge cannot alter the verdict based upon a redetermination of credibility or a re-evaluation of the evidence. Commonwealth v. Parker, 305 Pa. Super. 516, 451 A.2d 767 (1982).

In the case at bar, the trial judge states that he changed the degree of appellee's conviction using the discretionary powers of the court. Thus, he claims that the court will not confine its review of the evidence to that typically undertaken in an arrest of judgment. In effect, the trial judge used a hybrid of sua sponte reconsideration and reconsideration based on a motion in arrest of judgment. There is, however, no authority cited for the trial judge's action. Therefore, it is incumbent upon our court to determine whether the trial judge acted properly. We find that the trial judge acted improperly.

In Commonwealth v. Parker, 305 Pa. Super. 516, 451 A.2d 767 (1982), the trial judge found the appellee, Parker, guilty of robbery and possession of an instrument of crime following a non-jury trial. Four days past the deadline for filing post-verdict motions, the lower court entered an order reconsidering its verdict of guilty. Parker's trial judge ordered, upon reconsideration of the facts, that the verdict of guilty be changed to a verdict of not guilty. Id., 305

[ 355 Pa. Super. Page 505]

Pa. Super. at 518-522, 451 A.2d at 768-769. On appeal, this Court vacated the trial judge's order and reinstated the verdicts of guilty, as we held that the trial judge exceeded his post-verdict authority ...


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