Com. v. Mirt, C.

• Court: Superior Court of Pennsylvania
• Decided: May 17, 2017
• Docket: Com. v. Mirt, C. No. 910 WDA 2016
• Status: Unpublished

Opinion

J-S11022-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : COREY VINCENT MIRT : No. 910 WDA 2016

Appeal from the Judgment of Sentence Entered May 25, 2016 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015681-2015

BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY RANSOM, J.: FILED MAY 17, 2017

The Commonwealth of Pennsylvania appeals from the judgment of

sentence, imposed upon Appellee May 25, 2016, following his conviction for

theft by unlawful taking, receiving stolen property, and criminal conspiracy.

After careful review, we vacate the judgment of sentence, reinstate the

court’s initial verdict, and remand for resentencing.

The facts underlying the charges against Appellee, Corey Vincent Mirt,

are uncontroverted. Appellee stole jewelry valued at more than $4,600 from

the victim’s home. Appellant was charged with one count each of theft by

unlawful taking, receiving stolen property, and criminal conspiracy.1 In May

2016, following a stipulated bench trial, the trial court found Appellee guilty

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1 18 Pa.C.S. § 3921(a), 3925(a), and 903(a)(1), respectively.

* Former Justice specially assigned to the Superior Court. J-S11022-17

of the aforementioned charges, all graded as third-degree felonies.2 Notes

of Testimony (N.T.), 5/25/2016, at 24-25.

The trial court immediately proceeded to sentencing, during which

time the court changed Appellee’s verdict twice. Upon learning that Appellee

brought a check for the full amount of restitution, the court amended the

verdict to one felony and two misdemeanors. Id. at 26. Then, after

Appellee apologized to the victim, the trial court again amended Appellee’s

verdict, this time downgrading to three misdemeanors. Id. at 27-30. The

court ultimately sentenced Appellee to three years of probation with a drug

and alcohol evaluation and weekly urinalysis for the theft by unlawful taking

conviction. See Order of Sentence, 5/25/2016. No further penalty was

imposed for the remaining convictions. Id.

In June 2016, the Commonwealth timely filed a notice of appeal and

filed a court-ordered Pa.R.A.P. 1925(b) statement in July 2016. The trial

court issued a responsive opinion, acknowledging the merit of the

Commonwealth’s contention and stating that reversal would be proper.

The Commonwealth raises a single issue on appeal:

1. Whether the trial court, sitting as fact-finder at the [A]ppellee’s non-jury trial, erred by amending its verdict— ____________________________________________

2 “[T]heft constitutes a felony of the third degree if the amount involved exceeds $2,000, … or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.” 18 Pa.C.S. § 3903(a.1). Conspiracy is a crime of the same grade and degree as the most serious offense that is the object of the conspiracy. 18 Pa.C.S. § 905(a).

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twice—after it had already been announced in open court and the proceedings had moved into the sentencing phase?

Commonwealth’s Brief at 5.

[When a jury trial is waived, the trial judge shall … render a verdict which shall have the same force and effect as a verdict of a jury.] This rule restricts the trial judge's authority over the verdict in a nonjury trial to one which is no greater than his or her authority over a jury verdict, and the authority of a trial judge over a jury verdict is limited to consideration of post[- ]verdict motions in arrest of judgment or the granting of a new trial.

Commonwealth v. Stark, 584 A.2d 289, 290 (Pa. 1990) (internal citations

omitted); Pa.R.Crim.P. 621(a). “[I]t is a well-settled general principle that

only causes appearing on the face of the record or insufficiency of the

evidence will justify a granting of a motion in arrest of judgment.”

Commonwealth v. Jackson, 302 A.2d 420 (Pa. Super. 1973).

In the instant case, there was no motion in arrest of judgment, and it

is apparent from the record that the trial court’s actions in amending the

verdict were not predicated on the sufficiency of the evidence or causes

appearing on the face of the record. Thus, the trial court lacked the

authority to reconsider the facts and alter Appellee’s verdict. See

Commonwealth v. Parker, 451 A.2d 767 (Pa. Super. 1982) (sua sponte

reconsideration of the facts and change of verdicts by the trial court

exceeded the court’s post-verdict authority); Stark, 584 A.2d at 291

(holding trial court’s unsolicited change of verdict from guilty to not guilty

during sentencing “a legal nullity”); Commonwealth v. Gaither, 513 A.2d

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1034, 1035 (Pa. Super. 1986) (trial court confined to arrest of judgment

review or review for new trial; court’s reconsideration of facts and change of

appellee’s degree of conviction to parity the lesser conviction of co-

defendant was improper).

As the trial court exceeded its post-verdict authority, we vacate the

judgment of sentence; the verdicts of guilty of theft by unlawful taking,

receiving stolen property, and conspiracy, all felonies of the third degree are

reinstated. Upon remand, the court shall re-sentence Appellee.

Judgment of sentence vacated; verdict of guilty reinstated as felonies

of the third degree; case remanded for sentencing; jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/17/2017

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