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COMMONWEALTH PENNSYLVANIA v. BARBRA HAWTHORNE (05/27/87)

filed: May 27, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
BARBRA HAWTHORNE, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. BARBRA HAWTHORNE A/K/A BARBARA HAWTHORNE



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 8404-0521, 0522.

COUNSEL

Moira Dunworth, Philadelphia, for appellant (at 3129) and appellee (at 3288).

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant (at 3288) and appellee (at 3129).

Montemuro, Popovich*fn* and Watkins, JJ.

Author: Popovich

[ 364 Pa. Super. Page 127]

This case involves cross-appeals by Barbara Hawthorne (No. 3129 Philadelphia 1984) and the Commonwealth of Pennsylvania (No. 3288 Philadelphia 1984) from the judgment of sentence entered for voluntary manslaughter and possessing an instrument of crime. We affirm in part and quash in part.

The facts necessary to resolve the present appeal begin with Barbara Hawthorne's conviction, following a bench trial, of the stabbing death of her fiance.

[ 364 Pa. Super. Page 128]

A motion for a new trial and in arrest of judgment was filed challenging the verdict as contrary to the weight of the evidence and the law. Also, the Commonwealth's cross-examination of the appellant and the limitation of her own direct examination by the trial court were argued as error. None was persuasive and a sentence of two to four years imprisonment was imposed for voluntary manslaughter while a term of one to two years incarceration was issued for the possession of a weapon conviction. See Pa.R.Crim.P. 1406(a) (Sentences to be deemed to run concurrently unless the judge states otherwise).

Six days after sentencing, the Commonwealth was granted a hearing on its motion to modify the sentence; that portion of the motion seeking a vacation of the sentence pending the hearing was excised and in its place was written the date the proceeding was to be conducted (November 19, 1984).

The question posited was: Whether the deadly weapon enhancement statute was applicable to the case. The trial court considered it to be a "significant" question, but it refrained from hearing argument on the matter because the appellant/Barbara Hawthorne had filed an appeal on the same date (November 14, 1984) that the Commonwealth's reconsideration motion was granted. Thus, it thought that the Commonwealth had to file a praecipe in Superior Court, pursuant to Pa.R.App.P. 1701, to vacate Hawthorne's appeal and to perfect subject matter jurisdiction in the trial court to hear argument on the sentencing issue.

No praecipe was ever filed. Instead, on December 10, 1984, the Commonwealth submitted a Notice of Appeal with the proper authorities questioning the judgment of sentence (under 42 Pa.C.S. § 9781).

The Commonwealth's efforts to have the case remanded to allow the trial court the opportunity to reconsider the motion to modify sentence became entangled with and secondary to this Court's belief that the Commonwealth's appeal was untimely and, accordingly, we quashed. On a Petition for Reconsideration, this Court granted the request,

[ 364 Pa. Super. Page 129]

    reinstated the Commonwealth's cross-appeal at No. 3228 Philadelphia 1984 and we directed the parties, in their briefs, to address the issue of the timeliness of the Commonwealth's appeal under Pa.R.App.P. 903(b) and 42 Pa.C.S. § 5571(f).

We shall first respond to the appellant's assertions that the verdict was against the weight of the law and the evidence. These claims, being identical to those raised in her post-verdict motion, are boiler-plate in nature and preserve no issue for our review regarding the sufficiency of the evidence. See Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 (1983) (en banc).

As for the remaining contentions of the appellant, attributing the trial court with the commission of error in permitting the Commonwealth latitude in cross-examining her as to an alleged prior stabbing incident and curtailing her own testimony regarding being physically abused by her former husband to establish her state of mind at the time of the ...


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