Appeal from the Judgment of Sentence of July 31, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 84-07-713.
John Packel, Assistant Public Defender, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Del Sole, Montgomery and Hoffman, JJ. Del Sole, J., files a concurring opinion.
[ 376 Pa. Super. Page 382]
This appeal is from the judgment of sentence for robbery, 18 Pa.C.S.A. § 3701. Appellant contends that the trial court erred in refusing to rule on his submitted points for charge before the start of closing arguments, as required by Pa.R.Crim.P. 1119(a). For the reasons set forth below, we vacate the judgment of sentence and remand for a new trial.*fn1
[ 376 Pa. Super. Page 383]
On May 24, 1984, appellant was arrested and charged with robbery and related offenses. Following a jury trial, on August 23, 1985, appellant was found guilty of robbery and acquitted of all other charges. Timely post-trial motions were filed and denied. Appellant was then sentenced to five-to-ten years imprisonment. This appeal followed.
Appellant contends that the trial court erred in refusing to rule on his written points for charge before closing argument, despite counsel's timely request for such a ruling. Appellant claims that the court's failure to timely advise him of its ruling on the submitted charges constitutes a violation Pa.R.Crim.P. 1119(a). Appellant further argues that he was prejudiced by the court's noncompliance because defense counsel's closing argument focused on legal theories that were contained in his points for charge that the court did not include in its instruction to the jury.
Preliminarily, we note that appellant and the Commonwealth agree that there are no reported Pennsylvania appellate decisions regarding the effect of a trial court's failure to comply with the directives of Pa.R.Crim.P. 1119. In support of his contention that the court's failure to observe Rule 1119(a) prejudiced his defense, appellant relies on federal case law interpreting analogous provisions contained in Fed.Rule Crim.Pro. 30. Because the effectiveness of the defense was seriously impaired by the court's noncompliance with Pa.R.Crim.P. 1119(a), appellant claims that a new trial is warranted. We agree.
The predecessor to current Rule 1119(a) of the Pennsylvania Rules of Criminal Procedure required that the court, following the completion of closing arguments, charge the jury and then proceed to rule on the parties' submitted written requests for jury instructions.*fn2 On April 23, 1985,
[ 376 Pa. Super. Page 384]
the Pennsylvania Supreme Court amended Pa.R.Crim.P. 1119(a). The ...