*1 of the the character approach, the nature condition, the status of alleged dangerous care, duty under such injured. owner’s person by the circumstances, may further circumscribed be tenants, and building, the number character of resulting occupan- from consequent burdens cy. is general rule that there may as a
“It stated be steps from ice duty keep free outside no absolute is precipitation Where snow at all times. or duty continuous, to remove or recent imposed, and the it forms cannot obstruction normal arising viewed as the dangers therefrom are person in life, owner or which no hazards only responsible. It is held possession property duty having possessor, or when the owner ice, permits improperly an ac snow and remove reasonable remain after a thereof cumulation liability elapsed, length has of time for removal dangerous condition unsafe and for the arise Exchange Bank National v. Corn created.’’Goodman Co., 587, 589-590, A. Pa. Trust fact remain material genuine issues of these Because summary judgment stand. unresolved, cannot summary granting court lower The order judgment is reversed. J., opinion. joins Part I of
HOFFMAN, Harris, Appellant. *2 September Submitted Watkins, 1975. Before J., P. Jacobs, Hoffman, Cercone, Price, Voort, Van der Spaeth, JJ. Packel, Defender, Benjamin W.
John Assistant Lerner, Defender, appellant.
Barry Sendrow, Oxenburg, H. Mark and Steven H. Goldblatt, Attorneys, Assistant District Abraham J. Gafni, Deputy Attorney, District F. Emmett Fitz- patrick, Attorney, Commonwealth, appellee. District P.J., April 1976:
Opinion Watkins, judgment of appeal from sentence This is an Pleas, Division, Criminal of Common Trial the Court Section, County, by Philadelphia defendant- Harris, in a non- appellant, Nathaniel after conviction robbery. jury trial of Harris, with charged
Appellant, Nathaniel robbery. battery simple assault and witness, complaining aged testified that up your to him said “Give me assailant rushed money man, your money”, grabbing give me old while complain- his throat and The tie and the necktie. broke ing ground witness on on fell. While he was beaten plainclothes the face A in an assailant. officer ap- As the unmarked car saw “scuffle”. officer proached, complaining witness fled. The appellant “what identified and asked himself *3 up”. Appellant allegedly replied punching was “he was responded it to that it The officer that looked him me”. appellant doing punching. who was the The officer investigated. appellant Appellant asked to wait while he complaining The refused. witness arrived on the scene positively appellant and stated that had robbed him. He appellant as his identified assailant. judge, the
After the trial before a Court found battery guilty of appellant guilty not of assault and and robbery. First, argues appellant that are two issues:
There jury comply colloquy waiver did not trial before 368, Williams, A.2d with v. 454 Pa. 312 Commonwealth at raised trial nor (1973). matter was 597 This neither Commonwealth post trial Therefore it is waived. motions. Murray, A.2d v. Pa. 334 678 233 by appellant raised A more contention is serious power to sitting jury is without a without that the court i.e., guilty verdict, assault not of an inconsistent render battery robbery. guilty Both sides concede and but juries power such verdicts. to render have the that 606 Carter, A.2d v. 375
Commonwealth however, argues, in cases tried (1971). The power. possess such judge should by alone the court a judges the same argues that have The Commonwealth R. Crim. P. 1101 established powers juries Pa. under jury trials. purpose providing for waiver of for the Appeals for the Second The United States power possess the judge does not has ruled that a Circuit Maybury, States v. United to render verdicts. adopted been (2d 1960). Cir. This rule has not F.2d Pennsylvania ruling was not on the federal in and Pennsylvania grounds. remains rule The constitutional power render such judge possess the a does Carter, supra. Commonwealth v. verdicts. deny judges Reed, (1974). To Pa. A.2d 356 desirability trial power would to reduce consistently judge We that a decision
a alone. have held efficacy jury jury as a by judge has the same without a verdict. Crim. as follows: Rule 1101 of Pa. R. P. reads cases, may waive a trial
“In all the defendant attorney, any, approval if the consent of his with pending, judge the case is of the court which jury. judge without a and elect be tried judge from the whether shall ascertain defendant waiver, intelligent knowing this is a colloquy appear shall on the record.” system very Non-jury in our trials worked well have of case have contributed the reduction loads saving money. tax We should not considerable non-jury system. weaken trial *4 Judgment affirmed. Opinion Concurring Hoffman, J.: court, it for a appellant is error
The contends fact, sitting a trier of to render an inconsistent verdict criminal in a case. following episode is the account the criminal witness, complaining James Hall. at trial
offered Hall, seventy-two years Mr. old at the time of the incident, walking was Street, north on 17th near Street, Chestnut Philadelphia, September on appellant when According Hall, attacked him. “[appellant] grabbed by my my me throat and tie and said, your money man, your ‘Give me give money.’ old me said, I none,’
“So T have and I tried to wrestle and - get away from choking guess him but he was me and I know, I guess consciousness, don’t I maybe. I lost He choked me until the tie broke.” attempted
The witness escape his assailant crossing got street, the street. “And as I across the then he hit me down under another car and then he was hitting my me in screaming help face I was and police this Finally, that, officer rescued me.” he testified fact, appellant money took no from him. Philadelphia Police Officer Felton Morrison also testified about p.m., the attack on Hall. At about 8:45 patrolling City Morrison was neighborhood Center when “scuffling”: going he observed two men I “... was fight, call a radio car to come care back take thought going which I was on at time. my up, yelling,
“As I took I radio heard someone ‘Help, help.’ immediately put So I radio down leaped approached out the car and I went As I back. individuals, yelled, going these two I ‘What’s on here?’ yelled, I going “When ‘What’s on here?’ in- one away, dividual detached himself and ran gentleman [indicating here complaining witness].” point, approached appellant
At that explanation. Appellant asked claimed that merely punched Hall had him first and that he was defending Morrison, however, himself. Officer testified doing striking”: “As “seemed to be all the approached, I appellant] up had this man raised [the threw him onto an on east automobile side of 17th hood, Street, punching on and he was him there.” Appellant trying Hall to leave the when area
608 Hall then told the the incident. to the scene of returned him. had tried to rob charged separate bills in Appellant was arrested Term, 1041, (No. October and No. indictment 1040 robbery simple Appellant was 1974) assault. with robbery, simple On acquitted of assault. but convicted 15, 1975, to a term of appellant was sentenced April years. imprisonment of to 10 3 the lower court rendered appellant contends that acquittal simple impermissible verdict because charge negated of the essential elements assault one robbery. recently Commonwealth decided Supreme Court
Our Strand, 544, (1975); the Court’s 675 Pa. 347 A.2d v. 464 however, problem, is an this entire discussion Carter, 444 v. quotation from Commonwealth extensive (1971): 405, A.2d 375 Pa. 282 not-guilty argues “Appellant that the verdict on next is inconsistent with Uniform Firearms indictment guilty indictment and verdict on murder agree. inconsistency is We not reversible error. do 405, Court, Carter, This v. 444 Pa. 282 in Commonwealth (1971) A.2d stated: 375 v. Superior in
“‘As the Court said Parrotto, 415, 396, 422, Super. 399 Pa. 150 A.2d specific (1959): acquittal interpreted “An cannot be as finding As in other in relation some of the evidence. upon acquittal kind, cases of this the Court looks jury’s assumption power than the no more exercise, they they right were to which had no but through lenity.” disposed two verdicts if it that the
‘“But even
were assumed
inconsistent,
inconsistency
logically
alone
were
grounds
“It
could not
new trial or for reversal.
Pennsylvania
long
and in
federal
has
been the rule in
consistency
case is
courts that
in a criminal
a verdict
Parrotto,
necessary.”
419,
supra,
‘“The
Kline and
Parrotto
*6
decisions relied on the landmark
of Dunn v.
case
United
States,
390,
189,
284
U.S.
52 S.
L.Ed.
76
356
Writing
Court,
for the
(at pages
Mr. Justice
said
Holmes
393-94,
189): “Consistency
52 S. Ct.
in the verdict
is not
necessary
States,
.... As was said in Steckler v. United
[(2d
1925) (L. HAND, J.)]:
F.2d
Cir.
‘The most that
can be said in
cases
is that
verdict shows
the
that
in
acquittal
either
the
or the
conviction
did not
speak
conclusions,
their real
but that does not show that
they were
guilt.’...
not convinced of the defendant’s
That
the verdict
compromise,
have been the
of
result
or
part
of a
jury,
possible.
mistake on the
of the
is
But
upset by
verdicts
speculation
inquiry
cannot be
or
into
presented
Appellant
matters.’”
has
no reason for
departure
case,
from the rule of
the Dunn
has
by
great majority
been subscribed
our
to
courts and
”
of federal
A.2d at
and state courts.’ 464 Pa. at
passing
676-677. The Court made a
reference
the fact
to
sitting
judge
that
was
a
tried
a
without
jury. Nonetheless,
discussion
Court’s entire
solely
case consists
a
of
citation to a
dealt with
case
jury.1
a verdict rendered
a
I
implication
understand
Strand is that
Supreme
adopted
judge
our
has
Court
rule that a
is
1. The Court
did not address
the issue
whether
the lower
finding
necessarily
imagine any
court’s
was
inconsistent. I can
number
in Strand
of circumstances
that would have rendered the verdicts
general,
applied
In
a
consistent.
courts
strict
standard
in
have
determining
Circuit,
inconsistency.
example,
in
The Second
held
Wilson,
1965),
reviewing
States
(2d
United
v.
Because I do not believe that Strand
issue,
holding
urge
Supreme
I
Court
clear
on that
judge
hold that it
render an inconsistent
error
problem
This
an illustrious
verdict.2
was addressed
panel
Appeals
of the Second
Court of
in United
Circuit
1960)
(2d Cir.
Maybury,
Further, jury originally the evolved as an alternative thus, and, first, jury was no to trial ordeal “‘[a]t regarded which it more as “rational” than the ordeals question judgments replaced, just as did not one jury ordeal, so the of a of God as shown verdict slowly jury It equally inscrutable. is but judicial body.’” regarded as a Id. at was rationalized and Law, History (citing the Common A Concise 902-03 125). inconsistency result, upholding are
As a cases recognition verdicts are often the based on inconsistency Thus, in a “[ignoring compromise. result of jury’s disposition of a indictment of the counts criminal securing price the unanimous thus be deemed a requires and for Sixth Amendment .... verdict country’ against possibly interposing ‘the voice of prosecutors.” zeal Id. excessive 903. judge sitting apply of these considerations
None requirement Obviously, unanimi- the factfinder. *8 Maybury may reverse, do, we he would not Hand that if believes count; may uttering forgery I be on not be on the count but retried therefore, issue, majority may a On this think he be retried on both. only.” Maybury uttering, and for that retried holds that be F.2d at 904.
ty Further, apply judge. does not a judge, unlike a jury, any mitigating understands can fact sentencing Thus, considered in his decision. fear of prosecutorial justify inconsistency. Similarly, zeal cannot by leniency, judge if acquit moved can of the more serious crime any convict the lesser crime without ensuing inconsistency. addition, jury may In while a inconsistency through arrive learning lack of in the law, inexperience simply apply judge. does to a See, 259, §6, Annot. 18 A.L.R. 3d for discussion and authority.4 extensive Judge
I believe that per- Friendly’s rationale is urge suasive and I Supreme our adopt holding of Maybury as Pennsylvania. the law of
SPAETH,J., joins concurring opinion. Thus, problem distinguishable 4. in the instant case is from Conti, that addressed in Commonwealth v. Conti, judge A.2d 238 In we held that a should be treated in the jury judge, sitting fact, same manner as a if the as a trier of heard required jury inadmissible evidence that would have had a mistrial present. rejected underlying judge been We rationale that ignore able to while a could evidence not.