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[U] Commonwealth v. Hill

Superior Court of Pennsylvania

March 13, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MARVIN HILL, Appellant

NON-PRECEDENTIAL DECISION

Appeal from Judgment Of Sentence April 5, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005356-2011

BEFORE: BOWES, J., OTT, J., and JENKINS, J.

JUDGMENT ORDER

JENKINS, J.

Following a non-jury trial, the trial court found Marvin Hill guilty of third degree murder[1] and carrying a firearm without a license.[2] On April 5, 2013, the court sentenced Hill to an aggregate of 16½--43 years imprisonment. On May 2, 2013, without filing post-sentence motions, Hill filed a notice of appeal to this Court.

In this appeal, Hill raises only one argument: the verdict is against the weight of the evidence. We dismiss this appeal due to Hill's waiver of his weight-of-the-evidence claim.

Pennsylvania Rule of Criminal Procedure 607(A) provides:

A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.

Id. Failure to raise a weight-of-the-evidence claim prior to appeal in accordance with Rule 607(A) will result in waiver, regardless of whether the appellant raises this issue on appeal or the trial court addresses the issue in its Rule 1925(a) opinion. Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009); Commonwealth v. Causey, 833 A.2d 165, 173 (Pa.Super.2003) ("the fact that appellant raised the [weight-of-the-evidence] issue in a statement of matters complained of on appeal and that the court then filed an opinion pursuant to Rule 1925(a) does not render the claim reviewable").

In this case, subsequent to the verdict, Hill did not file a pre-sentence or post-sentence motion objecting to the weight of the evidence. Nor did he raise this objection orally on the record before sentencing. Therefore, he waived his challenge to the weight of the evidence.

Hill argues that he preserved a weight-of-the-evidence claim because his trial counsel uttered the word "weigh" during trial, to wit:

"I would ask the court to weigh all this evidence and find there is a reasonable doubt."

Rule 607, however, requires the defendant to demonstrate that "the verdict" is against the weight of the evidence. Since the verdict occurs after trial, see Pa.R.Crim.P. 622(A) ("a verdict shall be rendered in all non-jury cases within 7 days after trial"), the defendant cannot raise a weight-of-the-evidence claim during trial. Thus, Hill's attorney's utterance of "weigh" during trial did not raise a weight-of-the-evidence claim under Rule 607.[3]

Finally, under the precedents listed above, the fact that Hill included a challenge to the weight of the evidence in his Pa.R.A.P. 1925(b) statement of matters complained of on appeal does not preserve this issue for appeal. Causey, supra. Nor does the fact that the trial court addressed the merits of this claim in its Rule 1925(a) opinion.[4] Id.

Pursuant to Pa.R.A.P. 1972(5), we dismiss this appeal due to Hill's failure to preserve any questions for appeal. Pa.R.A.P. 1972(5).

Appeal dismissed.

Judgment Entered.


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