J-S12022-14

NON-PRECEDENTIAL DECISION                 SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                :    IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                       Appellant             :
                                             :
               v.                            :
                                             :
JONATHAN WALKER,                             :
                                             :
                       Appellee              :    No. 1064 EDA 2013

                     Appeal from the Order entered March 15, 2013,
                      Court of Common Pleas, Philadelphia County,
                    Criminal Division at No. CP-51-CR-0014255-2010

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and JENKINS, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED SEPTEMBER 26, 2014

      T

                                                       oral motion for a new trial

on the charges of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), and

robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii).          In a Memorandum dated April 8,

2014, we remanded this case to the trial court for the preparation of a

supplemental opinion to address the role the medical records of Tabitha King



supplemental opinion, we conclude that the trial court did not err in ordering

a new trial.
J-S12022-14


      A brief summary of the relevant factual and procedural history is as

follows.1   On October 1, 2010, Walker attacked King from behind as she

ascended the steps from the subway concourse with her three-year-old son.

N.T., 3/29/12, at 18. Walker hit King in the right leg with an umbrella and

pulled her backwards, causing her to fall down a full flight of concrete stairs.

Id. at 18-19. During a bench trial on March 29, 2012, King testified that she

was taken to the hospital by the police on the night of the attack and was

treated for a mild hand and foot sprain resulting from her fall down the

stairs. Id.

into evidence as Exhibit C-1 by way of stipulation, whereby defense counsel

specifically noted that the records reflected that King was treated on the day

after the incident.   Id. at 69-71.   Walker and the Commonwealth agreed

that King did not suffer serious bodily injury. Id. at 72, 75-78. Rather, the

Commonwealth proceeded on the theory that Walker intended to cause King

serious bodily injury.

      The trial court issued its verdict, finding Walker guilty of recklessly

endangering another person (REAP), aggravated assault, robbery, and

possession of an instrument of crime (PIC). Trial Court Opinion, 7/22/13, at

1.




1
  A more detailed summary of the facts and procedural history is set forth in
our previous memorandum. See Commonwealth v. Walker, 1064 EDA
2013 (Pa. Super. April 8, 2014) (unpublished memorandum).


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conviction of robbery of the first degree and aggravated assault of the first

degree because the Commonwealth did not prove that he had specific intent

to cause serious bodily injury to King. N.T., 1/17/13, at 5-7. The trial court

denied the Motion. Id. at 10.



the trial court to revis                                           -discovered



the night of the attack, but rather left the hospital and came back the next

day to be treated.   N.T., 3/15/13, at 4, 6-11.     In

claim of after-discovered evidence, the Commonwealth argued that the

information was highlighted in the medical records and further, that all

medical records were entered into the record by way of stipulation. Id. at 7,

11. The trial court judge stated that he did not review the entirety of the

medical record, and if he had, he may have decided the case differently. Id.



                                                                        Id. at

14-15.

      The Commonwealth timely filed an appeal and herein raises the



err in ordering a new trial, supposedly in the interest of justice, where there




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      Our standard of review of an order granting a new trial in the interest

of justice is abuse of discretion. Commonwealth v. Dorm, 971 A.2d 1284,

1288 (Pa. Supe

mere error in judgment but, rather, involves bias, ill will, manifest

unreasonableness, misapplication of law, partiality, and/or prejudice. Id. at

1288-89 (citing Commonwealth v. Hacker, 959 A.2d 380, 392 (Pa. Super.

2008)).

      As we previously stated, it was undisputed that King did not suffer




before the trial court was whether the Commonwealth satisfied the elements

of aggravated assault by proving that Walker intended to cause serious

bodily injury.



                                      tially irrelevant, since it otherwise




generally, and thus granted a new trial based upon the weight of the

evidence.



wrongly convicted of aggravated assault, and that there was a discrepancy



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as to what was stipulated to i

testified to during trial, the court properly granted a new trial, as it was



Court Opinion, 7/22/13, at 5.     Because the trial court did not provide an



whether Walker intended to cause serious bodily injury and ultimately, its

grant of a new trial, we remanded this case to the trial court for the

preparation of a supplemental opinion to address this issue.

      The trial court provided further explanation of its decision to grant a

new trial in its supplemental opinion, stating:

            Prior to sentencing, defense counsel reiterated his
            motion for relief to which the court heard brief
            argument. Before the defense made its
            argument
            the waiver trial, what was submitted, just medical


            Thereafter, the court inquired as what testimony was

            injuries, to which the Commonwealth replied that the
            victim sustain[ed] a sprained foot and wrist.

            Thereafter, after learning that a discrepancy existed
            between the testimony taken during trial and the
            evidence included in the exhibits, the court admitted
            that it had failed to read all of the information
            contain[ed] in the exhibits prior to deliberation of the
            evidence. Because a discrepancy existed concerning


            determined that the likelihood was also possible that
            other discrepancies could have been present in the
            record as well. As the court knew that it had not



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            performed its duty as fact-finder properly, this court,
            in the interest of justice, granted the defendant a
            new trial. After granting a new trial, the court stated:

            I was required to do as fact-finder
            some things in those records, had I reviewed, I
            might

Supplemental Trial Court Opinion, 7/7/14, at 2 (emphasis in original)

(internal citations omitted).   The trial court also specially noted that the

                                                                           -trial

                                         Id. at 3.

      Rule 704 of the Pennsylvania Rules of Criminal Procedure permits a

trial judge to hear an oral motion for extraordinary relief prior to sentencing.

Pa.R.Crim.P. 704(B)(1). Rule 704 provides, in pertinent part:

            (B) Oral Motion for Extraordinary Relief.

            (1) Under extraordinary circumstances, when the
            interests of justice require, the trial judge may,
            before sentencing, hear an oral motion in arrest of
            judgment, for a judgment of acquittal, or for a new
            trial.

            (2) The judge shall decide a motion for extraordinary
            relief before imposing sentence, and shall not delay
            the sentencing proceeding in order to decide it.

            (3) A motion for extraordinary relief shall have no
            effect on the preservation or waiver of issues for
            post-sentence consideration or appeal.

Id.



error in the pr



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relief post-sentence, the judge should grant a motion for extraordinary relief



the opportunity to address only those errors so manifest that immediate
                                                  2
                                                      The Comment further



error in the proceedings, the interests of justice are best served by deciding

                                         Id.

      In Dorm, a jury convicted Dorm on charges of statutory sexual assault

                                                                  Dorm, 971

                                                                    rtained a



on the charges of aged-                                 Id.   In reaching its



were confusing because the instructions blended the offenses of IDSI and

SSA and because the verdict slip included a charge for statutory IDSI, which

is not a crime in Pennsylvania. Id. at 1286-

the aforementioned errors produced an inherent

could not be said that either count     SSA or age-based IDSI     was in fact

                                  Id.


2
   As we noted in our previous memorandum, the Commonwealth argued
that the trial court committed error in granting a new trial under Rule
704(B). However, the Commonwealth failed to develop its argument or cite
to any authority to support its assertion. As a result, we need not address
this issue.


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                                                                             ]

it could not just arbitrarily pick one of [the] offenses, assigning the guilty

                                      Id. The Commonwealth appealed the



      After reviewing the record, we affirmed the trial



for the non-existent crime and order a new trial in which proper instructions

and a proper verdict slip allow deliberations on the IDSI offense actually

                          Id. at 1289.     In reaching our conclusion that




                                   Id. at 1288 (quoting Commonwealth v.

Powell

court may grant a new trial sua sponte    Id.

      Much like Dorm, in the case presently before this Court, the trial court

granted a new trial after recognizing an error on its part that produced an



reveals that the trial court did not reconsider or reweigh the evidence



suggests. Rather, the supplemental opinion clarifies that the dialogue prior



breakdown i



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failed to perform its duty as fact-finder in considering all the evidence prior

to making its decision as to guilt or innocence, thereby prejudicing the

                                        Opinion, 7/7/14, at 3.

                                                                     -finder] to

evaluate evidence adduced at trial to reach a determination as to the facts

       Commonwealth v. G.Y., 63 A.3d 259, 269-70 (Pa. Super. 2013)

(quoting Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super.

                                                                               -

finder to determine whether the evidence is believable in whole, in part, or

not at all, and to assign weight to the evidence that it believes as it deems

               Commonwealth v. George, 878 A.2d 881, 885 (Pa. Super.

2005) (citation omitted). Accordingly, the record reflects that the trial court

failed to fulfill its role and function as the fact-finder when it failed to

consider the entirety of the record prior to issuing its determination.



achieving justice in those instances where the original trial, because of taint,

unfairness or error, produces something other than a just and fair result,

                                                                 Donoughe v.

Lincoln Elec. Co., 936 A.2d 52, 67-

court determines that the process has been unfair or prejudicial, even where

the prejudice arises from actions of the court, it may, sua sponte, grant a

                                        Commonwealth v. Riley, 643 A.2d



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1090, 1093 (Pa. Super. 1994) (citing Powell




                           Powell, 590 A.2d at 1243.

      The trial court in this case candidly admitted that the adjudicatory

process had been unfair to Walker because of its own failure to read,

evaluate, and consider all of the evidence submitted at trial prior to issuing

                                                                             -

finder resulted in an error in proceedings, which produced inherent

unfairness to Walker.     As a result, we conclude that the error warranted

immediate relief and accordingly, we conclude that the trial court did not

                                                          decision to grant a

new trial in the interest of justice.

      Order affirmed.

      Jenkins, J. joins the Memorandum.

      Ford Elliott, P.J.E. files a Dissenting Memorandum Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2014




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