Commonwealth v. Holmes

461 A.2d 1268, 315 Pa. Super. 256, 1983 Pa. Super. LEXIS 3245

• Court: Supreme Court of Pennsylvania
• Decided: June 10, 1983
• Docket: 1143, Nos. 2529 and 900
• Status: Published

Opinions

SPAETH, Judge:

We ordered these three appeals consolidated because the principal issue in each of them is whether a “boilerplate” post-verdict motion—that is, a motion stating only that “the evidence was insufficient to support the verdict” or that “the verdict was against the weight of the evidence”—preserves any issue for appellate review. On this issue, we have found the law far from clear, and we have been unable to agree on how the pertinent decisions should be interpreted. However, we do all agree with Judge WIEAND’s discussion of the facts, and also, that on those facts, the judgments of sentence should be affirmed, except for the judgment of sentence for criminal trespass, which should be vacated. The opinion that follows therefore does not repeat but incorporates Judge WIEAND’s discussion of the facts.

In the opinions filed today—this opinion and Judge WIEAND’s—we have undertaken to explain our difficulty in deciding how the pertinent decisions should be interpreted. We hope that this effort will prove helpful to the Supreme Court in its continuing examination of the Rules of Criminal Procedure, in particular, of Rule 1123. Meanwhile, pending further interpretation of Rule 1123, and its possible amendment, by the Supreme Court, a majority of us—the President Judge, Judge McEWEN, Judge CIRILLO, and I—have concluded that the fairest way to proceed is to hold that for the time being, boilerplate post-verdict motions should be treated as in compliance with Rule 1123, but that effective sixty days from today, a post-verdict motion, either that “the evidence was insufficient to support the verdict,” or that “the verdict was against the weight of the evidence,” will preserve no issue for appellate review unless the motion goes on to specify in what respect the evidence was insufficient, or why the verdict was against the weight of the evidence.

As Judge WIEAND, in his opinion at 268-69, points out, every defendant has the right to have an appellate court determine whether the evidence was sufficient to support the verdict, and whether the verdict was against the weight of the evidence. But this right may be waived. And it will be waived if the defendant does not proceed properly.

The proper procedure to challenge the sufficiency of the evidence is by a post-verdict motion in arrest of judgment. See: 19 P.S. § 871, repealed by Act of April 28, 1978, P.L. 202 No. 53, § 2(a), Pa.R.Crim.P. 1124 effective July 1, 1983. Order of January 28, 1983, No. 112 Crim.Pro. Rules Docket No. 2. If the defendant only wishes to challenge the weight of the evidence, the proper procedure is by a post-verdict motion for a new trial. Harris v. Ruggles Lumber Co., 376 Pa. 252, 101 A.2d 917 (1954) (new trial granted where verdict against weight of evidence); Commonwealth v. Harbaugh, 197 Pa.Super. 587, 179 A.2d 656 (1962) (same); Pa.R.Crim.P. 1123. The proper procedure for filing these post-verdict motions is specified in Pa.R.Crim.P. 1123.

Rule 1123(a) provides that when post-verdict motions for a new trial and in arrest of judgment are heard, “only those issues raised and the grounds relied upon in the motions may be argued.” Pa.R.Crim.P. 1123(a). The difficulty with the rule is that it does not say with what degree of specificity the motion must state the “issues raised and the grounds relied upon.” Is an “issue[] raised” when a motion states that “the evidence was insufficient to support the verdict,” or that “the verdict was against the weight of the evidence?” Are these assignments of error statements of “grounds relied upon?”

In Commonwealth v. Davis, 477 Pa. 197, 383 A.2d 891, (1978), the Supreme Court held that a motion for a new trial that “stated that ‘the verdict is contrary to the weight of the evidence’ ... [stated] a proper ground for relief____” Id., 477 Pa. at 208, 383 A.2d at 894 (citations omitted). This decision is consistent with the provision in the Act of June 15, 1951, P.L. 585, § 1, 19 P.S. § 871, that a motion in arrest of judgment may be made “on the ground[] that the evidence was insufficient to sustain the charge____” Thus it would seem that both assignments of error—that the evidence was insufficient, and that the verdict was against the weight of the evidence—state “a proper ground for relief,” and, therefore, are within Rule 1123(a).¹

The difficulty with this conclusion is that in a line of decisions starting with Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), the Supreme Court has engaged in reasoning that seems inconsistent with Davis.

In Blair the Supreme Court said:

Appellant’s written post-trial motions were boiler plate challenges to the sufficiency of the evidence. Although counsel apparently made more specific oral motions that were considered by the court, the Pennsylvania Rules of Criminal Procedure, rule 1123(a), 19 P.S. Appendix, requires written post-trial motions.

The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth, issues not presented in compliance with the rule will not be considered by our trial and appellate courts.

Id., 460 Pa. at 33 n. 1, 331 A.2d at 214 n. 1.

The exact meaning of this statement is unclear to us, for the Court does not say how an issue must be presented to be “presented in compliance with” Rule 1123(a). The statement may be read as meaning only that to be in compliance with the rule, an issue must be presented in writing, not orally; but the Court’s pejorative reference to “boiler plate” may be read as implying that even if in writing, “boiler plate” is not in compliance with the rule.

For a time the cases seemed to focus on the requirement that to be presented in compliance with Rule 1123(a), an issue must be presented in writing. In several cases the Court declined to enforce Blair, granting appellate review of an issue that had not been presented in a written post-verdict motion so long as it had been briefed to the lower court and the court had considered it on the merits. See, e.g., Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977). In Pugh, however, Justice NIX expressed his dissatisfaction with this practice, stating in dissent:

Since Blair, this Court has repeatedly emphasized the need to include issues in written motions in order to preserve them for review.

The exception to Blair which was created in Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977), and is applied as “controlling” in this case, not only permits but actually fosters violations of Rule 1123. A trial court which has objections to a verdict presented to it by way of a written memorandum on the day of argument, rather than by written motion within the time limits specified by the rule, knows that it may safely engage in the practice condemned by Blair by proceeding to consider such objections on the merits. Under the majority’s reasoning, the violation of Rule 1123 by both trial attorney and trial court not only results in no sanctions, but also assures the offending party of full appellate review.

Id. 476 Pa. at 454, 383 A.2d at 188.

Evidently persuaded by this statement, the Court soon held in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), that

[T]his Court’s experience with Commonwealth v. Grace, supra, and its progeny has not been very satisfying. Counsel have more often than not failed to include the briefs in the record and, indeed, have often failed to even mention a brief was presented or filed in the trial court in the oral arguments and briefs before this Court ---- Accordingly, in order to conclude this unsatisfactory situation, we now rule that sixty days after the filing of this opinion, only those issues included in post-verdict motions will be considered preserved for appellate review ---- Our ruling is prospective only because of the possibility of reliance by counsel on prior decisions of this Court.

Id., 486 Pa. at 198-199, 404 A.2d at 1298.

Since Gravely, the Court has required strict compliance with Rule 1123, to the extent of holding that an issue will not be preserved if not included in a written post-verdict motion. See, e.g., Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982), Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981). But the question remains whether, to be preserved, an issue must in addition be more specific than only “boiler plate,” and as to that question, we find the law far from clear. As already mentioned, in the course of its progression from Blair to Gravely the Court held in Commonwealth v. Davis, supra, that a post-verdict motion stating that “the verdict is contrary to the weight of the evidence”—which is certainly “boiler plate”—stated “a proper ground for relief.” However, while never disapproving Davis, the Court has continued to manifest its disapproval of boiler-plate. See, e.g., Commonwealth v. Green, 493 Pa. 409, 415, 426 A.2d 614, 617 (1981) (“Appellant’s written post-verdict motions were merely boiler plate challenges to the sufficiency of the evidence, a practice which we condemned in Commonwealth v. Blair, 460 Pa. 31 n. 1, 331 A.2d 213 n. 1 (1975).”) See also, Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980). And in Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982), the Court stated:

In post-verdict motions appellant stated the verdict was insufficient generally and the evidence was insufficient to show that appellant fired the fatal shot. Appellant did not specifically contend either in his questions presented here or in the court below that the evidence was insufficient to prove a deliberate, willful and premeditated killing. This Court has repeatedly held that boiler plate post-verdict motions will not preserve allegations for appellate, review. Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1981); Commonwealth v. Gamble, 485 Pa. 418, 402 A.2d 1032 (1979); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978). Accordingly, appellant’s contention, articulated for the first time at oral argument, that the evidence was insufficient to establish the specific intent to kill, is waived.

Id., 498 Pa. at 253, 445 A.2d at 1207 (footnote omitted).

In Judge WIEAND’s view, the issue of premeditation “was inconsistent with the defense at trial and was not preserved in appellant’s brief in the Supreme Court ____ The issue had been waived, not because the averment of insufficient evidence had been general but, rather, because the issue preserved [in the brief to the Supreme Court] had been so specific as to exclude the argument which appellate counsel attempted to present orally.” At 272-73, WIE-AND, J. Recently, however, in Commonwealth v. Rodgers, 500 Pa. 405, 456 A.2d 1352 (1983), the Supreme Court has cited Pronkoskie for the proposition that “[a] specific charge of insufficiency ... will not be preserved by a general insufficiency allegation.” 500 Pa. at 408 n. 2, 456 A.2d at 1353, n. 2. In Rodgers, the appellant had been convicted of murder of the first degree and criminal conspiracy. He claimed that “the evidence was insufficient to establish his shared criminal intent.” 500 Pa. at 408, 456 A.2d at 1353. In addressing this issue, the Court said:

The Commonwealth has urged us to conclude that appellant has waived the sufficiency of evidence claim by filing only boilerplate allegations of insufficiency. While we have concluded that a specific charge of insufficiency predicated upon the asserted absence of proof of a deliberate, wilful and premeditated killing will not be preserved by a general insufficiency allegation, Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982) such is not the case where as here the sufficiency claim is premised on the assertion that the evidence is totally inadequate since it merely establishes his presence. See, e.g., Commonwealth v. Jones, 478 Pa. 172, 180, 386 A.2d 495, 499 (1978) (NIX, J. concurring); Commonwealth v. Wolff, 273 Pa.Super.Ct. 27, 416 A.2d 1072 (1979).

Id., 500 Pa. 408 n. 2, 456 A.2d at 1353 n. 2.

We acknowledge uncertainty as to the proper interpretation of this footnote. We note, however, that the Court has repeated its condemnation of boiler-plate (“a general insufficiency allegation”), with a citation to Pronkoskie, and from this we are encouraged to believe that Pronkoskie is not to be interpreted narrowly. We also note that while condemning boiler-plate, the Court distinguishes from boiler-plate, and is willing to review, a claim that the evidence was insufficient in a specified respect (“the evidence is totally inadequate since it merely establishes his presence” (emphasis added)).

As we have considered the cases—not only what they do but what they say—we have concluded that we are not bound by the Supreme Court’s holding in Commonwealth v. Davis, supra, that a post-verdict motion stating only that “the verdict is contrary to the weight of the evidence” states “a proper ground for relief.” In our view, Davis has been so undermined by cases such as Pronkoskie, Philpot, and Gravely that it’s ready to fall, and we may decline to follow it. We admit, the question is difficult. As an intermediate appellate court we must scrupulously adhere to the Supreme Court’s decisions, and we respect the view that until the Supreme Court expressly disapproves Davis, we must follow it. Even so, considerations of policy persuade us that we may be bolder.

In Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978), the Supreme Court said:

The requirement of specific written motions is intended to enhance the quality of review at both the trial and appellate levels. At the trial level, counsel’s precise statement of issues and grounds relied upon in written form insures that both the trial court and Commonwealth will have adequate notice of the legal theories being advanced. Thus the prosecution is better able to respond and the court has the benefit of the issues being clearly defined. Such practice should foster alert and zealous advocacy and encourage reflective and reasoned judgments by the court in the resolution of the questions raised.

Id., 477 Pa. at 434, 384 A.2d at 236.

A boiler plate motion, either that “the evidence was insufficient to support the verdict,” or that “the verdict was against the weight of the evidence,” is not a “precise statement of issues and grounds relied upon.” Such assignments of error not only do not “foster” but discourage “alert and zealous advocacy,” for anyone may make them without giving thought to what the issues really are. While “reflective and reasoned judgments by the court” may not be impeded, they will at least not be fostered, by boiler plate. As the Court stated in Waters:

In sum, the insistence upon the requirement of specific written post-verdict motions in accordance with Rule 1123(a) enhances the quality of review; encourages professional advocacy; discourages pursuit of frivolous claims; and promotes judicial economy.

Id., 477 Pa. at 435, 384 A.2d at 237 (footnote omitted).

We are persuaded by Waters to two conclusions: First, if counsel believes that the evidence was insufficient to support the verdict, the post-verdict motion should specify in what respect that was so. For example: on a charge of rape, that the evidence was insufficient to prove lack of consent; on a charge of receiving stolen goods, to prove knowledge that the goods were stolen; and so on. Cf. Commonwealth v. Rodgers, supra (insufficient to prove intent). And second, if counsel believes that the verdict was against the weight of the evidence, the post-verdict motion should specify why that was so. For example: that the identification testimony was so vague, and the alibi testimony so powerful, that the verdict shocks the conscience. We can’t imagine any good faith objection to requiring such specificity. No doubt some assignments of error, especially to rulings on evidence and the charge, can be made specific only by reference to the transcript, but counsel shouldn’t need the transcript to say in what respect the evidence was “insufficient” or why the verdict was “against the weight of the evidence.” In any event, counsel may, after reviewing the transcript, obtain leave to supplement boiler-plate assignments with specific ones. (It is to be hoped that the Procedural Rules Committee will re-examine Rule 1123; its ambiguities have generated quite unnecessary litigation. The procedure by which assignments may be added to a post-verdict motion might well be spelled out.)

However, we have also concluded that we should not apply a requirement of specificity to the cases before us, which is to say, retrospectively. As to the cases before us, we hold, as would Judge WIEAND, Judge CAVANAUGH, and Judge MONTEMURO, that the boiler-plate motions were in compliance with Rule 1123. We therefore overrule Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982). We will not, in other words, pretend that we are “discovering the law” and announcing what Rule 1123(a) all along required. Not only would that be intellectually dishonest but it would be foolish, for it would generate new and entirely unnecessary litigation in the form of petitions for post-conviction relief alleging that counsel had been ineffective in failing to file sufficiently specific assignments of error. But we believe that we should, and we do, hold that effective sixty days from today, assignments of error will not be in compliance with Rule 1123(a), and therefore will not preserve any issue for appellate review, unless they specify in what respect the evidence was insufficient or why the verdict was against the weight of the evidence.

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the United States Supreme Court held that in deciding between retrospective and prospective application, a court must “weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will foster or retard its operation.” Id. at 629, 85 S.Ct. at 1738. Engaging in this balancing process here, we conclude, that while a retrospective requirement of specificity would be unfair and would generate unnecessary post-conviction litigation, a prospective requirement will result in more professional advocacy and, consequently, better adjudications. Our Supreme Court has similarly given only prospective application to its decisions in Blair and Gravely, because of “the possibility of reliance by counsel on prior decisions of this Court.” Commonwealth v. Gravely, supra 486 Pa. at 199, 404 A.2d at 1298.

Judgments of sentence affirmed, except for the judgment of sentence imposed on the conviction for criminal trespass, which is vacated.

WIEAND, J., files a concurring and dissenting opinion in which CAVANAUGH and MONTEMURO, JJ., join.

1 . The Supreme Court, however, has promulgated a Rule of Criminal Procedure, effective July 1, 1983, that will replace 19 P.S. § 871. Rule 1124(a)(4) provides:

Rule 1124. CHALLENGES TO SUFFICIENCY OF EVIDENCE.

(a) A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged by a:

(4) motion in arrest of judgment filed within ten (10) days after a finding of guilt.

This rule, it will be observed, is different from 19 P.S. § 871 in that it merely states that a motion in arrest of judgment is the proper procedure to challenge the sufficiency of the evidence; it does not state that such a motion may be made "on the ground [ ] that the evidence was insufficient____”