Commonwealth v. Scasserra
| Decision Date | 13 September 1962 |
| Citation | 184 A.2d 299,199 Pa.Super. 200 |
| Parties | COMMONWEALTH of Pennsylvania v. Philip SCASSERRA, Appellant. |
| Court | Pennsylvania Superior Court |
Application for Allocatur Denied Nov. 1, 1962.
Hymen Schlesinger, M. Y. Steinberg Pittsburgh, for appellant.
Edward C. Boyle, Dist. Atty., Martin Lubow, Pittsburgh, for appellee.
Before RHODES, P. J., and ERVIN, WRIGHT WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.
Defendant Philip Scasserra was indicted for burglary. He waived a jury trial and on August 18, 1961, was found guilty by Hon William F. Cercone. On August 25, 1961 he was sentenced to two and one-half to five years and ordered sent to the Western Correctional Diagnostic and Classification Center of Pennsylvania, from which sentence he has appealed. [1]
On August 22 defendant had filed a motion for a new trial which was not specifically disposed of at the time of sentence but was argued before a court en banc and dismissed on May 17, 1962 which was subsequent to the taking of this appeal on September 26, 1961. By an amendment to his motion defendant sought to convert it into one for both a new trial and in arrest of judgment. The court en banc refused both, although it could have disposed of the one in arrest of judgment without consideration since it was not timely filed, the amendment incorporating it being made long after the time allowed for such motions. In fact, neither should have been disposed of since the record had previously been removed to this Court; furthermore, the judgment of sentence was, in fact, a disposition of same. Commonwealth v. Grow, 48 Pa.Super. 373.
Appellant-defendant has assigned numerous reasons why he should be granted a new trial or have the judgment arrested. However, since the motion to arrest the judgment was untimely, we shall not consider the reasons offered in its support; and since we are of the opinion that the ends of justice require a new trial, we shall discuss only our reason for that action.
This case was tried on August 18, 1961, and a verdict of guilty entered the same day. The court made no order continuing the hearing, but did provide for sentencing on Friday of the following week, August 25, 1961, indicating that some presentence investigation would be made. However, on that day, instead of proceeding with the sentence, the hearing was reopened and additional testimony taken on the qualification of one of the expert witnesses who had testified at the earlier hearing, and in addition, testimony was taken from another expert in corroboration of the first. At the conclusion of this additional testimony the court said (P. 77): 'Let the record show that the testimony of Mr. Valenta and Mr. Botton was made for the purpose of qualifying and developing the qualifications of these men, and it is their entire testimony upon which the court's opinion is founded * * *' Judge CERCONE then proceeded again to declare appellant guilty of burglary, and pronounced sentence.
In Commonwealth v. Brown, 192 Pa.Super. 498, 162 A.2d 13, we held that once a decision was made in a criminal case tried without a jury as authorized by the Act of June 11, 1935, P.L. 319, No. 141, as amended, 19 P.S. § 786 et seq. (pp), that decision is a general verdict as though rendered by a jury and therefore, the trial judge had no further authority over it except as permitted by the Act of June 15, 1951, P.L. 585, § 1, 19 P.S. § 871 (pp), relating to motions in arrest of judgment or for a new trial. Based on this decision we might be inclined to review this matter as the record stood at the time of the pronouncement of appellant's guilt on August 18, 1961, and ignore the additional testimony taken on August 25, except as it might bear on the matter of sentencing. However, in the face of the court's...
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