Commonwealth v. Shade

¶1concurring.

¶2Because Appellant preserved the issue of whether the Commonwealth had to produce evidence relating the results of his BAC test to the time of his driving (hereinafter “relation back *353evidence”) so as to survive a sufficiency of the evidence challenge, I would grant Appellant’s motion for arrest of judgment and thus I concur in the result reached by the majority. See Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983)

where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

¶3Accord Commonwealth v. Sessoms, 516 Pa. 365, 380, n. 2, 532 A.2d 775, 782, n. 2 (1987). See also Commonwealth v. Gillespie, 512 Pa. 349, 516 A.2d 1180 (1986).

¶4At the time of Appellant’s trial, the state of the law did not require the Commonwealth to produce “relation back” evidence. See Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986). See also Trial court slip opinion and supplemental slip opinion. However, subsequent to Appellant’s trial, but before the disposition of post trial motions, this Court issued two opinions: Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229, (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233, (1992) which held that absent relation back evidence, the Commonwealth’s case was insufficient to sustain its burden to prove a violation of 75 Pa.C.S.A. § 3731(a)(4). In addition, subsequent to the issuance of Jar-man and Modaffare, but before the trial court’s disposition of Appellant’s post trial motions, the Superior Court issued Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992), appeal denied, 531 Pa. 660, 613 A.2d 1209 (1992) which construed Jarmanand Modaffareas requiring the Commonwealth to produce relation back evidence in order to sustain its burden of proof in prosecuting a § 3731(a)(4) violation. See also Commonwealth v. Loeper, 541 Pa. 393, 403 n. 7, 663 A.2d 669, 674 n. 7 (1995) (recognizing by implication that Jarman and Modaffare established the requirement that the Commonwealth had to produce “relation back” evidence in order to establish a prima facie case and that in Commonwealth v. *354Yarger, 538 Pa. 329, 648 A.2d 529 (1994) we modified the requirement established in Jarmanand Modaffare). Thus, between the time of the trial and the time when the trial court was considering the post trial motions, the state of the law had changed. The question presented to the trial court was whether Appellant was to be accorded the benefits of the change. The trial court clearly decided that Appellant should be accorded the benefit of such a change and held that

Defendant is clearly entitled to the benefit of the above rulings [i.e., Jarman, Modaffare, and Osborne] because he has properly preserved the issue of relation back through all stages of the proceedings where this issue could have been raised. See Commonwealth v. Sessions [sic], 516 Pa. 365, 532 A.2d 775 (1987) and Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983).

¶5Trial court slip op. at 6-7. I agree with the trial court that because the Appellant has preserved the issue of the sufficiency of the evidence at every stage of the proceedings, he is entitled to the benefit of the Jarman, Modaffare and Osborne. However, I must disagree with the trial court’s conclusion, 1) that the remedy of a new trial is adequate to provide Appellant with the benefit of those rulings and 2) that prejudice to the Commonwealth is a proper consideration in denying Appellant’s motion in arrest of judgment.

¶6The grant of a new trial is simply an inadequate remedy where the Commonwealth as a matter of law fails to produce sufficient evidence. Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983); Commonwealth v. Cardona, 316 Pa.Super. 381, 387, 463 A.2d 11, 14 (1983)(“when the evidence is insufficient to support the verdict, a defendant is entitled to have the charges against him dismissed outright.”)(emphasis added). Indeed, granting an arrest of judgment where the Commonwealth fails to produce sufficient evidence is constitutionally compelled. Vogel In Vogel, 501 Pa. at 319, 461 A.2d at 607, this Court specifically noted that the United States Supreme Court in Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), had “concluded that double jeopardy precludes a retrial once an appellate court has found the evidence legally insuffi*355dent.” See also Smalis v. Pa., 476 U.S. 140, 144, 106 S.Ct. 1745, 1748, 90 L.Ed.2d 116 (1986) where the United States Supreme Court dedared that “[w]hat the demurring defendant seeks is a ruling that as a matter of law the State’s evidence is insufficient to establish his factual guilt. Our past decisions, which we are not inclined to reconsider at this time, hold that such a ruling is an acquittal under the Double Jeopardy Clause.” (footnote and citations omitted) Accordingly, because the trial court held that the Appellant was entitled to the benefit of the change in the law (and I agree), and because Jarman, Modaffare and Osbornerequire that Appellant be discharged, Appellant is entitled to an arrest of judgment. In this regard, I note that the defendants in Jarman, Modaffare and Osbornewere not given new trials but were all discharged.

¶7Moreover, the standard for deciding upon a motion in arrest of judgment is clear:

In order for a trial court to properly grant a criminal defendant’s motion in arrest of judgment on the ground of the insufficient evidence, “it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed [the verdict could properly have been based], it would be nonetheless insufficient in law to find beyond a reasonable doubt that the [defendant is guilty of the crime charged.]” Commonwealth v. Blevins, 453 Pa. 481, 483, 309 A.2d 421, 422 [.]

¶8Commonwealth v. Meadows, 471 Pa. 201, 205-06, 369 A.2d 1266, 1268 (1977). This standard clearly does not permit a trial court to consider prejudice to the Commonwealth in deciding such a motion. In fact, the Commonwealth will always be “prejudiced” by a grant of an arrest of judgment because by definition it bars the Commonwealth from prosecuting the defendant again. Accordingly, to the extent that the trial court considered prejudice to the Commonwealth in disposing of Appellant’s motion in arrest of judgment, the trial court erred.

¶9Finally, the Majority asserts that “[t]he insufficiency of the evidence supporting Appellant’s conviction does not appear to *356be an issue in dispute among the parties” Majority Op. at 351. If the Commonwealth does concede that the evidence was insufficient, then pursuant to Smalis, Vogel and Cardona, the grant of the motion in arrest of judgment is required. Moreover, I strongly disagree with the Majority when it states that “the only question is whether the trial court correctly granted Appellant a new trial as the proper remedy for the improper jury charge.” Majority Op. at 351. The insufficiency of the evidence is the only issue before this Court. What we are deciding is the appropriateness of the trial court’s denial of Shade’s post trial motion in arrest of judgment. See Appellant’s Post Verdict Motions, filed at No. CR-90-411 wherein under the heading of “MOTION IN ARREST OF JUDGMENT”, Appellant’s sole ground for requesting an arrest of judgment is that “the evidence is legally insufficient to sustain the jury’s guilty verdict.” Id. at 2.1 Indeed the only issue before this court is the appropriateness of the trial court’s denial of the motion in arrest of judgment. The “Statement of Question Presented for Review” section in Appellant’s Petition for Allowance of Appeal which was granted stated the sole issue as ‘Whether the trial court erred in denying the Petitioner’s motion in arrest of judgment?” Appellants’ PAA at 1. The “Statement of Question Involved” section of Appellant’s brief to this Court states the sole issue as “Whether the trial court erred in denying Appellant’s motion in arrest of judgment?” Since the trial court granted Appellant’s motion for a new trial, the Appellant could not possibly appeal that order as it was decided in Appellant’s favor.2 • Additionally, the *357Commonwealth did not appeal the trial court’s grant of a new trial. Accordingly, the issue of the propriety of the grant of a new trial based upon an allegedly erroneous jury instruction simply is not before this Court.

¶10In addition, even accepting as true the majority’s assertion that “the only question is whether the trial court correctly granted Appellant a new trial as the proper remedy for the improper jury charge”, the majority’s conclusion that an erroneous jury charge merits an arrest of judgment is, in my view, incorrect. The appropriate remedy for an erroneous jury charge is the grant of a new trial and not arresting judgment. Commonwealth v. Wilcox, 400 Pa.Super. 463, 583 A.2d 1208 (1990), reversed on other grounds, 531 Pa. 459613 A.2d 1207 (1992).3

¶11For the foregoing reasons, I concur in the grant of the arrest of judgment.