Commonwealth v. WilliamsCommonwealth v. Williams
- Reporters:
- , ,
- Before:
- Rowley
OPINION OF THE COURT
ROWLEY, Judge:
This is аn appeal from an Order denying appellant’s Motion for Judgment of Acquittal. Appellant sought acquittal on the ground that the evidence presented at his first two trials, each of which ended in a hung jury, was insufficient. He asserts that we have jurisdiction of his appeal by virtue of
Appellant presents two issues for review:
1. Did the trial court err in denying his motion for judgment of аcquittal?
2. Does the double jeopardy clause prohibit the Commonwealth from trying appellant a third time?
The record, as certified to us, reveals the following relevant facts. Appellant was charged with rape, burglary, robbery, involuntary deviate sexual intercourse and terroristic threats. He proceeded to a trial by jury. After 8V2
Appellant filed an Omnibus Pre-Trial Motion which alleged, in reference to thе first trial only, that the trial court “acted hastily in declaring a mistrial” and that “the double jeopardy clause of the Fifth Amendment of the U.S. Constitution requirеs dismissal of the instant charges as a mistrial way [sic] declared without manifest necessity.” The Omnibus Motion was heard by Judge Sweet. A review of Judge Sweet’s order of June 17, 1985 reveals that appellant also sought to present an admittedly untimely Motion for Judgment of Acquittal. By his June 17th order Judge Sweet made two rulings relevant to the present appeal. First, he denied appellant’s motion for dismissal on double jeopardy grounds. Second, he determined that because it was obvious that trial counsel “would be found inadequate” for failing to timely file a Motion for Judgment of Acquittal that аppellant “be granted ten days to present a proper motion for a directed judgment of acquittal solely because of twо successive hung juries.”
Appellant next filed a Motion for Judgment of Acquittal, pursuant to
Before we may consider the merits of apрellant’s appeal we must first determine whether it is properly before us. Although the Commonwealth does not challenge the appеalability of the present order, questions of jurisdiction must be raised by the Court
sua sponte. Rohr v.
The rule provides that:
(a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(5) New trials. An order ... in a criminal procеeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge____
The nоte following the rule states that sub-section (a)(5) is based on
Commonwealth v. Gabor,
209 Pa. 201, 58 A. 278 (1904) in which the defendant appealed from an order granting a new trial. The Commonwеalth sought to quash the appeal because there was no final judgment. The Supreme Court rejected this argument, stating that: “as the appellant claims to be entitled on the record to an absolute discharge, the order for another trial is so far in the nature
of
a final judgment thаt we think it best to consider and determine the appeal on its merits.”
Id.,
209 Pa. at 203, 58 A. 278. Similarly, in
Commonwealth v. Liddick,
471 Pa. 523, 370 A.2d 729 (1977) the Supreme Court permitted defendant to appeal a post-verdict order granting a new trial but denying a motion in arrest of judgment. The Court rejected the Commonwealth’s argument that defendant’s appeаl should be quashed as interlocutory, finding that
Turning to the merits of appellant’s appeal, we note that the appellant has failed to provide us with an adequate trial record to review. Even though there havе been two trials in this case, the record, as certified to us, does not contain the notes of the testimony from either trial. It is the appellant’s responsibility to provide a complete and comprehensive record to the reviewing court for the purposes of аppeal. See: Chapter 19—Preparation and Transmission of Record and Related Matters. Pa. Rules of Appellate Procеdure. Since appellant has failed to provide a complete record in this case, we cannot undertake a meaningful rеview of his claims. Absent such a record, there is no support for appellant’s argument concerning the sufficiency of the evidence presented at his two trials. Therefore, we are unable to say that the trial court erred in denying appellant’s Motion for Judgment of Acquittal.
As to appellant’s second argument, we note that his notice of appeal recites that the present appeal is tаken from the order of June 21, 1985 which denied his Motion for Judgment of Acquittal. At oral argument, counsel for appellant stated that the present appeal was taken only from that order and
not
from the order denying his motion
Order affirmed.
Notes
. Thus the present case is distinguishable from Commonwealth v. Laudenslager, 260 Pa.Super. 395, 394 A.2d 985 (1978) in which the defendant’s appeal from an order granting a new trial on the ground of after discovered evidence wаs quashed because his claim to an absolute discharge was barred by a prior, unappealed order that denied his post-trial motion for arrest of judgment.
. Although we express no opinion as to the merits of appellant’s double jeopardy claim, we note that in Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) the Suрreme Court held that an appeal from the denial of a motion to dismiss on double jeopardy grounds should not be permitted where the hearing court has considered the motion and made written findings that the motion is frivolous.