Commonwealth v. Gaither

513 A.2d 1034, 355 Pa. Super. 502, 1986 Pa. Super. LEXIS 11700

• Court: Supreme Court of Pennsylvania
• Decided: August 11, 1986
• Docket: 02153
• Status: Published

Opinions

OLSZEWSKI, Judge:

This appeal is from the order of the Court of Common Pleas of Philadelphia County reducing the grade of appel-lee’s robbery conviction. Appellee was found guilty in a non-jury trial before the Honorable Judge D’Alessandro of robbery, a felony of the first degree,¹ and related charges.² While post-trial motions were pending, appellee’s codefend-ant was tried before Judge D’Alessandro and was convicted of robbery, a felony in the third degree and the same accompanying offenses. In response to appellee’s post-trial motions which, inter alia, challenged the sufficiency of the robbery conviction, Judge D’Alessandro amended his findings, and downgraded appellee’s conviction to robbery, a felony of the third degree. Appellee was then sentenced to a term of four to eight months in the county prison on the third degree felony robbery conviction. This appeal is brought by the Commonwealth, which raises one issue for our consideration: whether the trial court erred in arresting judgment of appellee’s conviction of first degree felony robbery and substituting a lesser third degree felony robbery conviction.

It is clear that a trial judge has no more authority over a verdict in a non-jury trial than he does over a jury verdict. Following the recording of a verdict in a non-jury trial, the trial judge is limited to a consideration of post-verdict motions in arrest of judgment or the granting of a new trial. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977); Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982). In a motion for an arrest of judgment, the trial judge cannot alter the verdict based upon a redetermination of credibility or a re-evaluation of the evidence. Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982).

In the case at bar, the trial judge states that he changed the degree of appellee’s conviction using the discretionary powers of the court. Thus, he claims that the court will not confine its review of the evidence to that typically undertaken in an arrest of judgment. In effect, the trial judge used a hybrid of sua sponte reconsideration and reconsideration based on a motion in arrest of judgment. There is, however, no authority cited for the trial judge’s action. Therefore, it is incumbent upon our court to determine whether the trial judge acted properly. We find that the trial judge acted improperly.

In Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982), the trial judge found the appellee, Parker, guilty of robbery and possession of an instrument of crime following a non-jury trial. Four days past the deadline for filing post-verdict motions, the lower court entered an order reconsidering its verdict of guilty. Parker’s trial judge ordered, upon reconsideration of the facts, that the verdict of guilty be changed to a verdict of not guilty. Id., 305 , 451 A.2d at 768-769. On appeal, this Court vacated the trial judge’s order and reinstated the verdicts of guilty, as we held that the trial judge exceeded his post-verdict authority in reconsidering the facts of ap-pellee’s conviction.

In Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983), the trial judge changed a jury verdict of first degree murder to a finding of third degree murder upon consideration of appellee, Rawles’, post-verdict motions which alleged, inter alia, that the evidence was insufficient to support a finding of first degree murder. Upon review of the evidence presented to the trial court, the Supreme Court of Pennsylvania concluded that the trial judge erred in granting an arrest of judgment motion, and reversed the trial court order. Id. In so acting, the Pennsylvania Supreme Court stated that although the trial court may have been disturbed over some of the facts established at trial, the trial judge was limited to a determination of whether the facts as found below were sufficient to uphold the first degree murder conviction. Id., 501 Pa. at 522, 462 A.2d at 623.

In the case at bar, the trial judge was obviously concerned with the discrepancy between the degree of robbery for which appellee was convicted, and that of his co-defendant. It was, however, improper for the trial judge to simply change appellee’s degree of conviction. We feel that the trial judge should have either reviewed the evidence as found by him at trial to determine its sufficiency, or granted a new trial to the appellee if he was not confident of the initial conviction. See Commonwealth v. Brown, 192 Pa. Super. 498, 162 A.2d 13 (1960). Therefore, we are compelled to reverse the trial judge’s order and reinstate the original verdict of robbery, a felony of the first degree, and remand for reconsideration only of appellee’s post-trial motion for new trial, as this motion was not addressed by the trial court.

Order reversed, verdict of guilty of robbery, felony of the first degree reinstated, and case remanded for consideration of post-trial motion for new trial. Jurisdiction is relinquished.

WIEAND, J., files concurring opinion.

1 . 18 Pa.Cons.Stat.Ann.Sec. 3701(a)(l)(ii) (Purdon 1985).

2 . Appellee was also convicted of theft by unlawful taking or disposition (18 Pa.Cons.Stat.Ann.Sec. 3921), theft by receiving stolen property (18 Pa.Cons.Stat.Ann.Sec. 3925), simple assault (18 Pa.Cons.Stat. Ann.Sec. 2701), possession of an instrument of crime, generally (18 Pa.Cons.Stat.Ann.Sec. 907(a)), possession of an instrument of crime, weapons (18 Pa.Cons.Stat.Ann.Sec. 907(b)), and criminal conspiracy (18 Pa.Cons.Stat.Ann.Sec. 903).