Commonwealth v. Dewald

OPINION PER CURIAM: This is a Commonwealth appeal from an order of court which served as an acquittal. For the reasons below, we quash the appeal. Appellee, Scott Charles Dewald, was charged with possession with the intent to deliver a controlled substance, possession of a controlled substance, possession of a small amount of marijuana and criminal conspiracy. The trial court granted a demurrer to the criminal conspiracy charge. The jury returned not guilty verdicts on the charges of possession with the intent to deliver a controlled substance and possession of a controlled substance. The jury returned a guilty verdict on the charge of possession of a small amount of marijuana. The trial court then ordered a judgment notwithstanding the verdict on the possession of a small amount of marijuana charge. The present appeal followed. The sole issue raised on appeal is whether the trial court erred by reversing a verdict of guilty because his authority is limited to the consideration of posttrial motions. The Commonwealth is correct in that the granting of a judgment notwithstanding the verdict does not extend to criminal prosecutions. Commonwealth v. Blassingale, 398 Pa.Super. 379, 581 A.2d 183 (1990). The trial court concedes that the entering of a judgment notwithstanding the verdict was not the proper procedure. The order states that the court found appellee not guilty and the opinion states that the court reversed the jury’s decision and acquitted appellee. It is apparent that the trial court’s action was the equivalent to the granting of a motion for acquittal. The trial court may grant a motion for a judgment of acquittal at the close of the evidence or reserve its decision until the jury returns a verdict. The Pennsylvania Rules of Criminal Procedure provide as follows: “(c) If a defendant moves for a judgment of acquittal at the close of the evidence, the court may reserve decision until — 448 — after the jury returns a guilty verdict or after the jury is discharged without agreeing upon a verdict.” Pa.R.Crim.P. 1124(c). Presently, appellee did move for an acquittal at the close of the evidence. This motion was denied. After the jury was discharged the trial court acquitted appellee. The previous denial does not preclude the trial court’s ability to reconsider the motion because: “... The denial of a motion for judgment of acquittal at the close of all the evidence does not preclude later consideration of a motion for judgment of acquittal after discharge of the jury or a motion in arrest of judgment.” Pa.R.Crim.P. 1124(d). Because the trial court granted an acquittal, the present action is not reviewable. A judgment of acquittal based upon a ruling by the court that the evidence is insufficient to convict, even if mistaken, is not reviewable. Commonwealth v. Finley, 477 Pa. 382, 383 A.2d 1259 (1978); Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986). Therefore, the instant appeal is barred and must be quashed. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986); Commonwealth v. Trader, 354 Pa.Super. 583, 512 A.2d 693 (1986). Appeal quashed. WIEAND, J., files a dissenting opinion.