Commonwealth v. Widmer
Commonwealth v. Widmer
Opinion of the Court
OPINION OF THE COURT
Following his conviction and sentencing for rape, appellant, Barry Widmer, Jr., elected to forgo the optional post-sentence motion under recently amended Pa.R.Crim.P. 1410 A.(3),
This Court’s sense of justice was indeed shocked. Defendant, by taking a direct appeal, has deprived this court of the opportunity to act on the weight of the evidence question, and left this court with only the ability to express its view on this issue by addressing it in response to the Defendant’s concise statement of matters complained of on appeal. Although under the new rules governing appellate procedure, a defendant may bypass the Court of Common Pleas and appeal directly to Superior Court, it is important that the Superior Court be aware of the fact that if Mr. Widmer had moved for a new trial based upon the weight of the evidence, this Court most certainly would have granted his motion.
Slip op., January 27, 1995, at 29. The Superior Court, relying on Commonwealth v. Hodge, 441 Pa.Super. 653, 658 A.2d 386 (1995), held that a challenge to the weight of the evidence must first be raised in the trial court and that failure to do so constituted a waiver of the claim. Commonwealth v. Widmer, 446 Pa.Super. 408, 421, 667 A.2d 215, 221 (1995).
While it is correct, as stated in Hodge, supra, that a challenge to the weight of the evidence must be addressed in the first instance by the trial court, Hodge, 441 Pa.Super. at 658-60, 658 A.2d at 388-89, we granted allocatur to address the effect of Pa.R.Crim.P. 1410 B.(l)(c) in this context, a question of first impression in this court.
Pa.R.Crim.P. 1410 B.(l)(c) states: “Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.” The issue under consideration — the weight of the evidence — is an exceptional issue which is unlikely to be preserved for appeal without the filing of a post-sentence
We hold that appellant must be permitted to file a motion for a new trial nunc pro tunc challenging the weight of the evidence pursuant to Rule 1410 B.(l)(a)(iv).
Judgment of Superior Court reversed and case remanded to the trial court to permit appellant to file a motion for a new trial nunc pro tunc challenging the weight of the evidence.
Rule 1410 adopted March 22, 1993 and amended December 17, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994.
Concurring Opinion
concurring.
I agree with the result reached by the Majority because fairness dictates that the instant case be remanded to the trial court and Appellant permitted to file a motion for a new trial nunc pro tunc challenging the weight of the evidence. However, given the clear oversight in new Rule 1410 respecting weight of the evidence claims, I would go further and specifically direct that the Criminal Rules Committee amend Rule 1410 as soon as practical to explicitly provide for weight of the evidence challenges.
Accordingly, in addition to ordering a remand here, I would direct that the Criminal Rules Committee revise Rule 1410 posthaste.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. Barry WIDMER, Jr., Appellant
- Cited By
- 68 cases
- Status
- Published