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12/30/97 COMMONWEALTH PENNSYLVANIA v. TIMOTHY

December 30, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
TIMOTHY HOLZLEIN, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Pike County, Criminal Division, at No. 148-1996.

Before: Beck, Popovich and Montemuro , JJ.* Opinion BY Beck, J. Concurring and Dissenting Opinion filed by Popovich, J.

The opinion of the court was delivered by: Beck

Filed December 30, 1997

OPINION BY BECK, J.

In this appeal we address, inter alia, two issues: whether appellant preserved his weight of the evidence claim for appellate review and whether the trial court correctly graded appellant's offenses under the Crimes Code.

Appellant was convicted of receiving stolen property, conspiracy and related offenses. In addition to asserting that his conviction was against the weight of the evidence and that his sentence was illegal, he claims the court erred in transferring his case from juvenile to adult court. We find no merit in any of appellant's challenges and we therefore affirm the judgment of sentence.

Appellant, who was a minor at the time he committed the crimes at issue, joined with another man and stole eight guns from the home of a neighbor. Two years after the crimes were committed the police charged appellant. Based on a confession from appellant's cohort and other facts implicating appellant, police filed a criminal complaint charging appellant with multiple counts of theft, conspiracy, receiving stolen property, hindering apprehension, tampering with evidence and false reports. *fn1 The Commonwealth then sought and was granted a transfer of appellant's case from juvenile to criminal court. A jury acquitted appellant of the theft counts but convicted him of receiving stolen property and conspiracy, as well as the false reports and tampering charges.

Appellant's first issue on appeal concerns the court's certification of the case to criminal court. A finding that a juvenile is not amenable to treatment within the juvenile system will be disturbed only where a gross abuse of discretion is established. Commonwealth v. Moss, 518 Pa. 337, 543 A.2d 514, 516 (1988). The Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365, provides a list of factors that must be considered by the trial court in assessing an offender's amenability to treatment in the juvenile system. See 42 Pa.C.S.A. § 6355(a)(4).

Upon review of the court's detailed and comprehensive order transferring the case to criminal court and in light of appellant's history, we find no abuse of discretion by the trial court and conclude that the transfer was appropriate. See Commonwealth v. Potts, 449 Pa. Super. 306, 673 A.2d 956, appeal denied, 545 Pa. 669, 681 A.2d 1342 (1996).

Appellant next argues that the verdict was against the weight of the evidence. Appellant did not raise this claim before the trial court in the form of a post-sentence motion, but he did include it in his Pa. R.A.P. 1925(b) Statement. However, the trial court did not address the issue in its opinion. The question is whether appellant has preserved the issue for review.

Since the 1994 amendments to the Pennsylvania Rules of Criminal Procedure, the filing of post-trial motions, now known as post-sentence motions, is optional. As long as an issue is preserved before or in the course of trial, a litigant need not return to the trial court and again request relief after conviction and sentencing. See Pa. R.Crim. P. 1410. The enactment of amended Rule 1410 has spawned a series of problems regarding those issues that are not typically raised before or during a trial, including a claim that the verdict is against the weight of the evidence. See Commonwealth v. Clinton, 453 Pa. Super. 385, 683 A.2d 1236 (1996) (listing cases that hold that "a defendant must always file a post-sentence motion in order to preserve a claim assailing a verdict as against the weight of the evidence"). See also Commonwealth v. Egan, 451 Pa. Super. 219, 679 A.2d 237 (1996) (specific discretionary sentencing claim involving trial court's alleged failure to state reasons for the sentence on the record may be addressed for the first time by appellate court); Commonwealth v. Jarvis, 444 Pa. Super. 295, 663 A.2d 790 (1995) (general claim regarding discretionary aspects of sentence must be made to the trial court in the first instance despite amendments to post-trial criminal procedure).

Recently our supreme court considered preservation of a weight of the evidence claim. In Commonwealth v. Widmer, 547 Pa. 137, 689 A.2d 211 (1997), the appellant failed to file a post-sentence motion raising a weight of the evidence claim, but raised the issue in his Rule 1925(b) Statement. The trial court addressed the issue in its opinion and concluded that the verdict was indeed against the weight of the evidence. Nonetheless, a panel of this court found that appellant's claim could not be considered since the issue was not properly preserved below. The fact that the trial court addressed the issue in its opinion made no difference to the panel since the trial court no longer had jurisdiction to grant or deny the motion for a new trial.

The supreme court disagreed with the superior court and reversed its order. While recognizing that a weight of the evidence claim must be analyzed in the first instance by the trial court, the Widmer court found that since the trial Judge addressed the claim in his opinion, it was appropriate for the appellate court to address the claim as well. Noting that "there was no need for the Superior Court to review a cold record and make an initial determination concerning the weight of the evidence," the Widmer court held that appellate review of the claim was proper. Id. at , 689 A.2d at 212.

The case at bar presents a different problem procedurally. Unlike Widmer, in this case the trial court did not address appellant's weight claim. Therefore, despite the fact that appellant here did exactly what the appellant in Widmer did, that is, raise the claim for the first time in his Rule 1925(b) Statement, we are without the trial Judge's assessment of the claim. Our understanding of the holding in Widmer is that an appellate court is not permitted to review a weight of the evidence claim based on a cold record. See also Commonweatlh v Brown, 538 Pa. 410, 648 A.2d 1177 (1994) (appellate court is only authorized to review trial court's assessment of weight claim and is powerless to consider weight claim on its own). We conclude that we are unauthorized to address appellant's claim.

Appellant's final claim is that his sentences for receiving stolen property and conspiracy are illegal. He asserts that the convictions should have been graded as first degree misdemeanors and not third degree felonies. The grading of theft offenses is governed by statute, which provides, in pertinent part:

(a) Felony of the second degree. - Theft constitutes a felony of the second degree if the offense is committed during a manmade disaster, a natural disaster or a war-caused disaster. . . .

(a.1) Felony of the third degree. - Except as provided in subsection (a), theft constitutes a felony of the third degree if the amount exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle or motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.

(b) Other grades. - Theft not within subsection (a) or (a.1) of this section, constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by ...


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