Commonwealth v. Dale

335 A.2d 454, 232 Pa. Super. 213, 1975 Pa. Super. LEXIS 1376

• Court: Superior Court of Pennsylvania
• Decided: February 27, 1975
• Docket: Appeals, 1833 and 1834
• Status: Published

Opinions

Opinion by

Spaeth. J.,

For the reasons given in Judge Price's opinion, appellant’s conviction for larceny of a motor vehicle is affirmed and his convictions for burglary and larceny are reversed. However, where Judge Price would “grant a new trial on those charges [of burglary and larceny],” a majority of the court is of the opinion that appellant must be discharged.

Appellant filed two motions: a motion for new trial, and a motion in arrest of judgment.¹ It is important to distinguish between these motions.

The motion for new trial alleged that the verdicts of guilty of burglary and larceny were “contrary to the evidence” or “contrary to the weight of the evidence.” “Contrary” means “diametrically different. . . opposite in character or nature . . . mutually opposed . . . .” Webster’s Third New International Dictionary 495 (1961). Here, the evidence was not “opposed” to the finding of guilt but consistent with that finding. The difficulty, as Judge PRICE’S opinion shows, is that the evidence was insufficient to support the finding. The motion for new trial was therefore properly denied.

The argument that the evidence was insufficient was made by the motion in arrest of judgment. This was in accordance with the Act of June 15, 1951, P. L. 585, §1, 19 P.S. §871, which provides that “the defendant . . . may make a motion in arrest of judgment on the grounds that the evidence was insufficient to sustain the charge . . . .” The Act goes on to provide that on such motion, “if the court, after consideration of the entire record, shall decide that there is not sufficient evidence to sustain the conviction, it shall forthwith discharge the defendant and dismiss the case.”

A case similar to the present case, and illustrating the application of the Act of June 15, 1951, supra, is

Commonwealth v. Wright, 449 Pa. 358, 296 A. 2d 746 (1972). There the issue was whether there was sufficient evidence to support a conviction for receiving stolen goods. This court affirmed per curiam, Hoffman, Montgomery, and Spaulding, JJ., dissenting, and the Supreme Court allowed an appeal. After concluding that the evidence was insufficient, the Supreme Court went on to hold as follows: “Recognizing its plight, the Commonwealth in its brief urges this Court, if relief is to be granted, to award a new trial and not arrest judgment. While it is most unfortunate the Commonwealth failed to offer all of the evidence in its possession necessary to establish the charges, this reason does not provide a justification for this Court to refuse the request of the appellant that he be discharged. Under the Act of 1951, June 15, P. L. 585, §1, 19 P.S. 871, where it is determined after a review of the entire record that the evidence is insufficient to sustain the charge, the trial court is mandated to discharge the defendant and dismiss the case. This act does not leave the remedy to the discretion of the court, but rather, directs the dismissal of the action and the discharge of the defendant. We are now in the position of reviewing the lower court’s ruling in this regard and having determined that he should have found the evidence insufficient are merely directing what he should have done in the first instance. See, Commonwealth v. Bailey, supra [448 Pa. 224, 292 A. 2d 345 (1972)].” Id. at 361-362, 296 A. 2d at 747-748.²

The judgment of sentence for larceny of a motor vehicle is affirmed; the judgments of sentence for burglary and larceny are reversed, and as to these charges, appellant is discharged.

1 Appellant’s written post-trial motions are inexplicably missing from the record. The docket, however, contains the notation, “July 3, 1972, Written motions in Arrest of Judgment and for a New Trial filed.” The record of appellant’s co-defendant’s case does contain written motions, which were also filed on July 3. Since the notes of testimony for the joint trial were not transcribed until after that date, since both defendants were represented by lawyers from the same Public Defender’s office, and since the co-defendant’s motions are in the usual form, we shall proceed as Judge Price's opinion has, giving appellant the benefit of the doubt and assuming that his written motions were identical to his co-defendant’s.

2 It may also be noted that the law is far from clear on whether, where the conviction has been reversed because of insufficient evidence, retrial impairs a defendant’s right not to be placed in jeopardy twice. Compare Bryan v. United States, 338 U.S. 552 (1950) with Sapir v. United States, 348 U.S. 373 (1955) and Forman v. United States, 361 U.S. 416 (1960). Cf. Commonwealth v. Garrett, 229 Pa. Superior Ct. 459, 323 A. 2d 314 (1974) (Spaeth, J., concurring). And see Comment, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 364 (1964).