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COMMONWEALTH PENNSYLVANIA v. TIMOTHY WILLIAMS (TWO CASES) (12/24/86)

filed: December 24, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
TIMOTHY WILLIAMS (TWO CASES)



Appeal from the Order entered August 13, 1985 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 85-01-2056. Appeal from the Order entered September 12, 1985 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 85-01-2056.

COUNSEL

Jill R. Cohen, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Donald Bronstein, Assistant Public Defender, Philadelphia, for appellee.

Beck, Popovich and Hoffman, JJ. Popovich, J., files a dissenting opinion.

Author: Hoffman

[ 360 Pa. Super. Page 25]

These are consolidated appeals from the order below which arrested judgment and the second order which vacated the order arresting judgment and corrected a clerical error on the bill of information. Appellant, the Commonwealth, contends that the lower court had no authority to issue either order. For the reasons that follow, we vacate the order arresting judgment and affirm the second order to the extent that it corrected a clerical error in the record.

On June 4, 1985, appellee was tried without a jury and found guilty of aggravated assault, recklessly endangering another person, and possessing an instrument of crime. In announcing the verdict, the trial court did not specify whether the aggravated assault was graded as a felony or a misdemeanor.*fn1 The bill of information, however, reflected

[ 360 Pa. Super. Page 26]

    a guilty verdict for felony aggravated assault, and the bill was later signed by the trial court. On August 13, 1985, at sentencing, the court was asked to clarify the verdict. The court indicated that it intended to convict appellee of misdemeanor aggravated assault. In an attempt to correct the discrepancy between the intended verdict and that reflected on the bill, the court entered an order arresting judgment on the felony aggravated assault and substituting a conviction for misdemeanor aggravated assault. Appellant timely appealed from this order. On September 12, 1985, the trial court entered a second order which vacated the August 13, 1985 order and struck the notations on the bill of information reflecting entry of a guilty verdict for felony aggravated assault. In its September 12, 1985 order, the court stated that, in announcing the verdict on June 4, 1985, it intended to find appellee guilty of misdemeanor aggravated assault, and that the notations on the bill to the contrary resulted from a clerical error. Appellant timely appealed this order and the two appeals were thereafter consolidated.

Appellant first contends that the trial court had no authority either to arrest judgment via its August 13, 1985 order or to vacate the August 13, 1985 order with its September 12, 1985 order. We agree.

Appellee does not contest that the trial court had no authority to arrest judgment because sufficient evidence was presented to establish the elements of felony aggravated assault. See Brief for Appellee at 5 n. 3. See also Commonwealth v. Parker, 305 Pa. Superior Ct. 516, 523-24, 451 A.2d 767, 770 (1982) (in considering motion in arrest of

[ 360 Pa. Super. Page 27]

    judgment, trial court is limited to determination of absence or presence of that quantum of evidence necessary to establish elements of crime). Moreover, the trial court had no power to vacate the arrest of judgment because appellant took an appeal from the August 13, 1985 order. See 42 Pa.C.S.A. ยง 5505 (court may modify or rescind order within thirty days if no appeal has been taken or allowed). The appeal having been taken, however, the validity of the August 13, 1985 order is properly before this Court. We conclude that the trial court had no power to arrest judgment and, accordingly, vacate the order of August 13, 1985.

Appellant next contends that the trial court had no power to issue its September 12, 1985 order, to the extent that it attempted to correct a clerical error in the record. In support of this contention, appellant maintains that (1) there is no statute or rule of appellate procedure that justifies the court's action; (2) there is no evidence to indicate that the trial court intended to convict appellee of anything but felony aggravated assault; and (3) there is no evidence that an error was made in recording the original verdict. Appellant concludes that the court's order, rather than an attempt to correct a clerical error, was no more than a reevaluation of the intended verdict and an attempt to alter it. We disagree.

[ 360 Pa. Super. Page 28]

A court has no authority to change a previously recorded guilty verdict if the change is based on a post-verdict factual redetermination. Commonwealth v. Parker, 305 Pa. Superior Ct. 516, 521-22, 451 A.2d 767, 769 (1982). It is well-settled, however, that a court possesses the inherent power to correct clerical errors appearing either in the record or in its orders. Commonwealth v. Cole, 437 Pa. 288, 293, 263 A.2d 339, 341 (1970); Commonwealth v. McDonald, 285 Pa. Superior Ct. 534, 537, 428 A.2d 174, 175 (1981). Moreover, the power to correct errors extends to improperly recorded verdicts; thus, a court may correct a recorded verdict if the verdict does not reflect the obvious intention of the trier of fact. Commonwealth v. Huett, 462 Pa. 363, 368, 341 A.2d 122, 124 (1975); Commonwealth v. Page 28} Allen, 287 Pa. Superior Ct. 88, 99, 429 A.2d 1113, 1118 (1981). Under Pennsylvania's Rules of Appellate Procedure, the trial court retains its power to correct such errors even after an appeal has been taken:

If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.

Pa.R.A.P. 1926 (emphasis added).

Here, upon review of the record, we are satisfied that the listing of appellee's conviction as felony aggravated assault on the bill of information resulted from a clerical error and that the trial court had the power to correct that error. In announcing its verdict, the court stated, "I find you guilty of aggravated assault, assault with a deadly weapon, possession of instrument of crime, generally, and recklessly endangering." N.T. June 4, 1985 at 100. The court did not specify the grading for the aggravated assault conviction. At sentencing, when asked to clarify the verdict, the court indicated that its intention was to convict appellee of misdemeanor aggravated assault. N.T. August 13, 1985 at 5. In explaining the verdict, the court noted that "it was one of these emotional situations in which he did very serious injury. I ...


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