Com. v. Fitzhugh

• Decision Date: 06 January 1987
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Herbert FITZHUGH a/k/a George Butler, Appellee.
• Court: Pennsylvania Superior Court

Page 424

520 A.2d 424

360 Pa.Super. 217

COMMONWEALTH of Pennsylvania, Appellant, v. Herbert FITZHUGH a/k/a George Butler, Appellee.

Superior Court of Pennsylvania.

Argued June 25, 1986.

Filed Jan. 6, 1987.

Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Michael J. Kelly, Asst. Public Defender, Philadelphia, for appellee.

Before CIRILLO, President Judge, and WICKERSHAM and KELLY, JJ.

KELLY, Judge:

This case involves appeals by the Commonwealth from orders of the trial court granting the appellee, Herbert Fitzhugh, an arrest of judgment upon his conviction after a jury trial of a firearms offense 18 Pa.C.S.A. § 6108, and denying a motion to modify the sentence in accordance with the applicable provisions of the Mandatory Minimum Sentencing Act 42 Pa.C.S.A. § 9712. The trial court found that the evidence was insufficient to establish that the appellee possessed an "operable" firearm within the meaning of the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101 et seq. or the Mandatory Minimum Sentencing Act 42 Pa.C.S.A. § 9712.

The appellee contends that the order vacating judgment was the functional equivalent of a verdict of aquittal and that the Commonwealth's appeals are barred by the double jeopardy provisions of the Pennsylvania and United States Constitution because reversal would lead to further fact- findings proceedings. The appellee also argues that the trial court correctly determined that the evidence was insufficient to sustain the verdict or to require application of the mandatory minimum sentence provisions of 42 Pa.C.S.A. § 9712.

The Commonwealth contends that the appeals are properly before this Court, and that the trial court abused its discretion in granting an arrest of judgment and in failing to impose the mandatory minimum sentence. The Commonwealth argues that no double jeopardy rights are implicated by the appeals because the appropriate remedy, should the Commonwealth prevail, is reversal of the orders, reinstatement of the verdict, and a directive to the trial court to resentence the appellee in accordance with the provisions of 42 Pa.C.S.A. § 9712. The Commonwealth notes that these remedies do not involve additional proceedings which involve determinations of fact as to the appellee's guilt or any of the elements of the crimes of which he was convicted. Finally, the Commonwealth argues that the evidence was sufficient to sustain the verdict and application of the mandatory minimum sentence provision.

Upon review of the record, the briefs of the parties, the opinion of the trial court, and relevant legal authority, we find that the trial court properly granted an arrest of judgment upon the appellee's firearm offense conviction. However, we find that the trial court abused its discretion in failing to apply the mandatory minimum sentence. The order granting an arrest of judgment on the firearms offense conviction is affirmed. Judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion.

The salient facts may be summarized as follows. On the evening of November 18, 1983, the victim, Oliver Green, was walking home from work. Near the end of a footpath crossing the vacant lot between the intersections of Eleventh Street and Girard Avenue and Twelfth Street and Girard Avenue in Philadelphia, Mr. Green was accosted by the appellee, who knocked off Mr. Green's non-prescription glasses and placed a gun against Mr. Green's neck. The appellee demanded money. When Mr. Green replied that he had none, the appellee moved to a position two to three feet in front of Mr. Green with the gun pointed at Mr. Green's chest. The light from a street lamp was shining directly on the appellee's face.

The appellee then searched Mr. Green's pockets for valuables and took from Mr. Green the pair of non-prescription glasses, a multi-function watch, and two gold chains. At one point during the armed robbery, Mr. Green, a twenty-year old golden gloves boxer, made a gesture toward the appellee as if preparing to throw a punch. The appellee taunted the victim by inviting him to try to hit him, and by informing his victim that it would be "an easy thing" to shoot Mr. Green and that he had "busted people before." Mr. Green then decided not to offer further resistance.

Sometime during this process, the stem on Mr. Green's glasses broke. The appellee returned the apparently valueless glasses. Mr. Green walked away, but the appellee called him back and, inexplicably, returned his watch. The appellee, still in possession of the gold chains, ran west on Girard Avenue and made his escape. Mr. Green promptly reported the crime, but the appellee was not apprehended.

Four months later, on March 20, 1984, the appellee walked past Mr. Green at a basketball court near the scene of the crime. Mr. Green recognized the appellee, followed him, eventually called the police, and identified the appellee when he was apprehended by police a short time later. The appellee was arrested and charged with two counts of Possessing an Instrument of Crime, Simple Assault, Terroristic Threats, two counts of Theft, Robbery, and Carrying a Firearm on a Public Street or Property. ¹ On April 5, 1984, the Commonwealth filed notice of its intention to proceed at sentencing under the Mandatory Minimum Sentencing Act. The appellee was tried by a jury on January 8 and 9, 1985 and was found guilty of Possession of an Instrument of Crime, Theft by Unlawful Taking, Robbery, and Carrying a Firearm on a Public Street or Property. The Commonwealth did not proceed on counts of Simple Assault and Terroristic Threats.

On January 18, 1985, the appellee filed a post-trial motion requesting post-verdict relief stating:

1. The evidence, as presented, was insufficient to prove the petitioner guilty beyond a reasonable doubt. More specifically, the evidence failed to establish that the petitioner was the individual that robbed the complainant.

(Post-Verdict Motions at 1). Although counsel requested the right to file additional reasons in support of the post-verdict motion after review of the notes of testimony, no additional motions were filed. On May 30, 1985, post-trial motions were argued. Appellee's motion for arrest of judgment was denied. However, the court, sua sponte, entered an arrest of judgment upon the firearms violation over the Commonwealth's objections on both procedural and substantive grounds.

The same day, the trial court sentenced the appellee to an aggregate term of imprisonment of one and one half (1 1/2) years to three (3) years for robbery and possession of an instrument of crime. ² The trial court refused to impose a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712. On June 4, 1985, the Commonwealth filed motions to vacate the arrest of judgment and to modify the sentence. These motions were denied without a hearing on June 4, 1985. Timely notices of appeal were filed. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on February 20, 1986. The appeals were consolidated, and are now properly before this Court for disposition.

I.

Before proceeding to the merits of the appeals, we must dispose of the appellee's contention that the instant appeals are barred by the double jeopardy clauses in the Pennsylvania and United States Constitutions. The appellee argues that despite the label of "arrest of judgment" the court's sua sponte order was in reality a verdict of acquittal, made final by principles of double jeopardy. Alternatively, the appellee argues that the appeals violate double jeopardy protections because a decision in the Commonwealth's favor would necessitate further fact-finding proceedings. Appellee cites Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), in support of his contentions. However, upon review of the relevant legal authority, we cannot agree. Clear precedent establishes that neither appeal is barred.

In Smalis, the United States Supreme Court held "that the trial judge's granting of petitioners' demurrer at the close of the prosecution's case was an acquittal under the double jeopardy clause, and that the Commonwealth's appeal was barred because reversal would have led to further trial proceedings." 476 U.S. at ----, 106 S.Ct. at 1749, 90 L.Ed.2d at 122. The Court stated that "whether the trial is to a jury or to the bench, subjecting the defendant to post-acquittal fact-finding proceedings going to guilt or innocence violates the Double Jeopardy Clause." Id., citing Arizona v. Rumsey, 467 U.S. 203, 211-212, 104 S.Ct. 2305, 2310-2311, 81 L.Ed.2d 164 (1984). (Emphasis added).

In Rumsey, the Supreme Court held that because the death penalty phase of a capital murder trial involved fact-finding proceedings equivalent to a separate trial on the issue of whether the death penalty was to be imposed, a second sentencing proceeding following a successful appeal by the state from a decision to impose a life sentence was barred. The previous life sentence imposed by the sentencing court as fact-finder was essentially an acquittal of the death penalty specifications. Significantly, the Supreme Court distinguished its previous decision in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). In Wilson, the Supreme Court held that the prosecution could appeal from a judgment of acquittal entered by the trial judge after the jury had returned a verdict of guilty. In Rumsey, the Supreme Court stated:

No double jeopardy problem was presented in Wilson because the appellate court, upon reviewing asserted legal errors of the trial judge, could simply order the jury's guilty verdict reinstated; no new factfinding would be necessary, and the defendant therefore would not be twice placed in jeopardy.

467 U.S. at 211, 104 S.Ct. at 2311, 81 L.Ed.2d at 172. Despite the difference in labels, this is precisely the situation presented in the instant appeal from the order granting an arrest of...