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COMMONWEALTH PENNSYLVANIA v. DYNEL MCMILLAN (06/24/88)

filed: June 24, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DYNEL MCMILLAN, APPELLEE



Appeal from the Order entered November 12, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 82-12-2543-2544.

COUNSEL

Harriet Brumberg, Assistant District Attorney, Philadelphia, for Com., appellant.

Stuart Lev, Assistant Public Defender, Philadelphia, for appellee.

Rowley, Kelly and Watkins, JJ. Rowley, J., files a concurring statement.

Author: Kelly

[ 376 Pa. Super. Page 28]

The Commonwealth appeals from an order granting reconsideration of post-verdict motions and awarding a new trial, some two years, eight months, and nine days after the original order denying post-verdict motions was entered. We reverse and remand for re-sentencing.

FACTS AND PROCEDURAL HISTORY

The facts and the procedural history of this storied case may be summarized as follows. At approximately 9:30 p.m. on November 10, 1982, appellee/defendant, Dynel McMillan, accosted the victim in front of Phyllis's Bar in Philadelphia

[ 376 Pa. Super. Page 29]

    and demanded repayment of a five dollar debt allegedly owed by the victim to appellee. When the victim denied the existence of the debt, appellee threatened to "deal" with the victim. The victim then left and went to his grandmother's house. Later that evening, when the victim left his grandmother's house, a gold or tannish Dodge Dart passed him and skidded to a stop. Appellee jumped out of the car from the back seat, produced a revolver, and fired several shots at the victim. The victim ran back to his grandmother's house attempting to avoid the gun fire. He was struck once in the right buttocks.

The victim called the police, reported the incident, and was taken to the hospital. He remained in the hospital for four days, during which time an unsuccessful surgical attempt was made to remove the bullet. In his initial report to the police he did not reveal that he knew and could identify his assailant. Later, however, he identified appellee as his attacker and explained to the police that when he made his initial report he was afraid that if he identified appellee as his assailant, appellee would have attacked him again.

Appellee was arrested on November 17, 1982. Following a preliminary hearing on December 21, 1982, appellee was held for trial on charges of aggravated assault, recklessly endangering another person, carrying a firearm on a public street, carrying a firearm without a license, and possession of an instrument of crime. On January 3, 1983, the Commonwealth served appellee, and filed with the trial court, a written notice of its intent to seek the application of the mandatory minimum sentence provisions of 42 Pa.C.S.A. § 9712.

On August 4, 1983, following a jury trial, appellee was convicted of aggravated assault and possessing an instrument of crime. The remaining charges were nol prossed. On January 9, 1984, after a hearing, post-verdict motions were denied. At the hearing, appellee raised constitutional challenges to the application of the mandatory minimum sentence provisions of 42 Pa.C.S.A. § 9712. The court did

[ 376 Pa. Super. Page 30]

    not immediately decide appellee's constitutional challenges but held them under advisement.

On January 30, 1984, the trial court sustained appellee's constitutional challenges to 42 Pa.C.S.A. § 9712, and sentenced appellee to a term of imprisonment of three to ten years. The Commonwealth filed a motion to reconsider sentence, arguing that the trial court erred in refusing to impose the mandatory minimum sentence of five years imprisonment required by 42 Pa.C.S.A. § 9712 and specifically challenging the trial court's conclusion that the statute was unconstitutional. The motion was denied without a hearing. The trial court filed an opinion in support of judgment of sentence on February 7, 1984.

On February 24, 1984, the Commonwealth filed a timely notice of appeal to our Supreme Court. On February 29, 1984, appellee filed a timely notice of cross-appeal to this Court. On June 10, 1985, our Supreme Court filed its opinion reversing the trial court's determination that 42 Pa.C.S.A. § 9712 was unconstitutional, vacating sentence, and remanding for resentencing in accordance with 42 Pa.C.S.A. § 9712. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985). On June 13, 1985, this Court, sua sponte, dismissed appellee's appeal from the then vacated judgment of sentence without prejudice to appellee's appellate rights following resentencing. Appellee sought and was granted certiorari review in the United States Supreme Court which affirmed the decision of our Supreme Court by opinion filed June 19, 1986. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

On September 18, 1986, appellee filed a petition for reconsideration of the January 9, 1984, order denying post-verdict motions in the trial court. Appellee requested a new trial based upon the change in the law, announced during the pendency of appellee's appeals, regarding the substantive use of prior inconsistent statements. See Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986) (filed March 26, 1986). A hearing was held and briefs were submitted by appellee and the Commonwealth. On November 12, 1986,

[ 376 Pa. Super. Page 31]

    the trial court granted the motion for reconsideration and awarded appellee a new trial based on its conclusion that Brady, supra, applied and that the failure to instruct the jury that evidence of the victim's prior inconsistent statement could be used as substantive evidence and not merely as impeachment evidence constituted reversible error. The Commonwealth filed timely notice of appeal to this Court.

Although an order granting appellee a new trial is an interlocutory order, the Commonwealth may, nevertheless, appeal as of right "where the Commonwealth claims that the lower court committed an error of law." Pa.R.A.P. 311(a)(5); see also Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962); Commonwealth v. Coleman, 367 Pa. Super. 108, 114-21, 532 A.2d 477, 480-83 (1987). As will be seen infra, both of the Commonwealth's contentions on appeal allege errors of law by the trial court. We thus conclude that the Commonwealth's appeal is properly before this Court for review.

I.

The Commonwealth's first contention is that the trial court lacked authority to reconsider the January 9, 1984 order denying post-verdict motions. The Commonwealth argues that pursuant to 42 Pa.C.S.A. § 5505 the trial court lost authority to modify or rescind the order denying post-verdict motions thirty days after its entry. The Commonwealth argues further that the trial court violated 42 Pa.C.S.A. § 706*fn1 and Pa.R.A.P. 2591(a)*fn2 in failing to ...


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