Com. v. Fitzpatrick, J., III

J-A25014-16

2017 PA Super 101

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

JOSEPH BERNARD FITZPATRICK, III,

Appellee No. 1498 MDA 2015

Appeal from the Order Entered September 1, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002534-2014

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOSEPH BERNARD FITZPATRICK, III,

Appellant No. 1679 MDA 2015

Appeal from the Order Entered September 1, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002534-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

OPINION BY SHOGAN, J.: FILED APRIL 12, 2017

The Commonwealth of Pennsylvania appeals from the order granting

the post-sentence motion for judgment of acquittal filed by Appellee, Joseph
____________________________________________

*
Former Justice specially assigned to the Superior Court.
J-A25014-16

Bernard Fitzpatrick, III.1 In addition, Appellee has filed a cross-appeal. For

the following reasons, we reverse and remand for reinstatement of the jury

verdict and judgment of sentence, and we quash Appellee’s cross-appeal.

The trial court summarized the factual and procedural history of this

case as follows:

On June 6, 2012, emergency personnel were dispatched to
2288 Old Forge Road in Chanceford Township, which is located in
York County, Pennsylvania. EMTs found [Appellee] and his wife,
Annemarie Fitzpatrick [“Victim”], down near the shore line of
Muddy Creek. [Victim] was unresponsive, but EMTs were
eventually able to get a pulse and she was transported to the
hospital. A short time later, [Victim] was pronounced dead.
Foul play was not suspected and the family began making
arrangements; [Victim’s] body was sent to the mortician for
embalming.

Two days later, on June 8, 2012, the Pennsylvania State
Police received a call from Rebekah Berry, who was employed by
the same company as [Victim]. Employees at Collectibles
Insurance had found a note in [Victim’s] day planner that they
felt was “suspicious.” The note said, “If something happens to
me - JOE.” It was dated June 6, 2012, and signed “A.
Fitzpatrick.” Upon request, Ms. Berry was given access to
[Victim’s] work email where she found an email from [Victim] to
‘feltonfitz@gmail.com,’ which was [Victim’s] personal [email]
account. The subject line of the email stated, “if something
happens to me,” and the body of the email read ‘Joe and I are
having marital problems. Last night we almost had an accident
where a huge log fell on me. Joe was on the pile with the log
and had me untying a tarp directly below.” This email was sent

____________________________________________

1
We observe that appeals in criminal matters are ordinarily taken from the
judgment of sentence. However, our case law has permitted the
Commonwealth to appeal from orders that grant post-sentence motions
seeking judgment of acquittal in favor of a defendant. Commonwealth v.
Feathers, 660 A.2d 90, 94 (Pa. Super. 1995) (en banc).

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June 6, 2012 at 10:30 A.M. Ms. Berry showed police the note
and gave them access to [Victim’s] email account.

After viewing the note and email, troopers contacted
[Appellee] and asked if he would be willing to come in for an
interview; [Appellee] agreed. [Appellee] was asked to again
explain what occurred the night [Victim] died; he was never
asked about the note or email.

On June 9, 2012, approximately two days after [Victim’s]
death and after the body had been embalmed, an autopsy was
conducted. Dr. Barbara Bollinger, the forensic pathologist,
determined that the cause of death was drowning. Although she
was not asked to opine on the manner of death, she did state
that she thought the circumstances were “suspicious.”

From the point the handwritten note and email were found,
the investigation turned from an accident investigation into a
homicide investigation with the prime suspect being [Appellee].
Eventually, troopers discovered that [Appellee] was having a
non-sexual affair with a woman named Jessica Georg, and was
thinking of leaving his wife for her. When confronted, [Appellee]
admitted to hiding [Victim’s] phone from the police in an effort
to hide this affair. Troopers also discovered that [Appellee]
would gain approximately $1.7 million in life insurance if [Victim]
were to die. After searching [Appellee’s] work computer,
troopers recovered two Google searches from around the time of
[Victim’s] death. The first search, done on June 1, 2012,
searched for “life insurance review during contestability period.”
The second search, done on June 5, 2012, searched for
“polygraph legal in which states.” This all led to [Appellee’s]
arrest on March 6, 2014 - approximately a year and a half after
[Victim’s] death.

[Appellee] was formally arraigned on May 19, 2014, and
Christopher A. Ferro, Esquire, entered his appearance on May
22, 2014. The case was assigned to the Honorable Gregory M.
Snyder, who scheduled a pre-trial conference for August 18,
2014. After two extensions, [Appellee] filed an omnibus pre-trial
motion on August 7, 2014. In that motion he raised several
issues, however, because he only raises the issue of the hearsay
note and email in his post-sentence motion we will not discuss
the other issues. Specifically, [Appellee] argued that the
handwritten note and email were inadmissible hearsay and the

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Commonwealth should not be allowed to present either as
evidence. The Commonwealth countered that the note and
email were hearsay, but admissible under the state of mind
exception. On October 20, 2014, Judge Snyder denied
[Appellee’s] request, and permitted the Commonwealth to
present both the handwritten note and email.

The case was reassigned to the undersigned Judge due to
Judge Snyder’s reassignment into the Family Division.[2] We
listed the case for trial during the May term of trials.

[Appellee’s] trial began on May 4, 2015. On May 13,
2015, [Appellee] was found guilty of First Degree Murder, and
was sentenced to life imprisonment on the same day. On May
22, 2015, [Appellee] filed a timely post-sentence motion. We
directed each side to submit briefs in support of their respective
positions by the close of business July 1, 2015. [Appellee] filed
his brief on June 30, 2015, and the Commonwealth filed its brief
July 2, 2015.

After reviewing the briefs, we scheduled oral argument on
the sole issue of whether the Commonwealth presented
sufficient evidence to prove beyond a reasonable doubt that
[Appellee] unlawfully killed his wife. That argument took place
on August 6, 2015. We reserved decision on all three issues.[3]
____________________________________________

2
The case was transferred to Judge Richard K. Renn, who presided over the
jury trial and post-verdict proceedings.
3
The three issues presented to the trial court were as follows:

I. Was the jury’s verdict of guilty against the weight of the
evidence, which would entitle the Defendant to a new trial?

II. Did the Commonwealth present sufficient evidence to prove
each element of First Degree Murder beyond a reasonable
doubt?

III. Did the original trial judge commit reversible error in
permitting the Commonwealth to present a handwritten note and
email penned by the victim?

(Footnote Continued Next Page)

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Trial Court Opinion, 9/1/15, at 1-4.

On September 1, 2015, the trial court issued an order denying in part

and granting in part Appellee’s post-sentence motion. Specifically, the trial

court denied Appellee’s request for a new trial, but granted Appellee’s

motion for judgment of acquittal based on the Commonwealth’s failure to

present sufficient evidence to sustain a first-degree murder conviction.

Order, 9/1/15, at 1. Also on September 1, 2015, the Commonwealth filed

an appeal. On September 29, 2015, Appellee filed a cross-appeal from the

September 1, 2015 order. The Commonwealth, Appellee, and the trial court

have complied with Pa.R.A.P. 1925. On October 19, 2015, this Court sua

sponte consolidated the appeals for disposition.

The Commonwealth presents the following issue for our review:

I. DID THE TRIAL COURT ERR IN GRANTING [APPELLEE’S]
POST-SENTENCE MOTION FOR ACQUITTAL AS THE EVIDENCE
WAS SUFFICIENT TO SUSTAIN A FIRST DEGREE MURDER
CONVICTION?

Commonwealth’s Brief at 5.

In addition, Appellee presents the following issues in his cross-appeal:

I. WHETHER THE TRIAL COURT, AFTER DETERMINING THE
COMMONWEALTH FAILED TO PRESENT SUFFICIENT EVIDENCE
TO PROVE EACH ELEMENT OF FIRST DEGREE MURDER BEYOND
A REASONABLE DOUBT, PROPERLY GRANTED A JUDGEMENT
[sic] OF ACQUITTAL?

_______________________
(Footnote Continued)

Trial Court Opinion, 9/1/15, at 4.

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II. WHETHER [APPELLEE] WAS DENIED RIGHTS GRANTED TO
HIM BY THE UNITED STATES CONSTITUTION AND
PENNSYLVANIA CONSTITUTION WHEN INADMISSIBLE HEARSAY,
IN THE FORM OF A NOTE AND EMAIL FROM [APPELLEE’S]
DECEASED WIFE, WAS ADMITTED INTO EVIDENCE AND USED
BY THE COMMONWEALTH TO SECURE A CONVICTION ON THE
CHARGE OF MURDER?

Appellee/Cross-Appellant’s Brief at 4.

In its sole issue on appeal, the Commonwealth argues that the trial

court erred in granting Appellee’s post-sentence motion for judgment of

acquittal. Commonwealth’s Brief at 30-81. In essence, the Commonwealth

contends that it presented sufficient evidence at Appellee’s trial to establish

the necessary elements of first-degree murder beyond a reasonable doubt.

We are constrained to agree.

Our standard of review is as follows:

A motion for judgment of acquittal challenges the
sufficiency of the evidence to sustain a conviction on a particular
charge, and is granted only in cases in which the Commonwealth
has failed to carry its burden regarding that charge.

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in

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applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.

Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa. Super. 2008)

(citations and quotation marks omitted).

Murder is defined, in relevant part, as follows:

§ 2502. Murder

(a) Murder of the first degree.--A criminal homicide
constitutes murder of the first degree when it is committed by an
intentional killing.

18 Pa.C.S. § 2502(a). The Pennsylvania Supreme Court has discussed the

elements of first-degree murder as follows:

To convict a defendant of first degree murder, the
Commonwealth must prove: [(1)] a human being was unlawfully
killed; [(2)] the defendant was responsible for the killing; and
[(3)] the defendant acted with malice and a specific intent to kill.

Commonwealth v. Houser, 18 A.3d 1128, 1133 (Pa. 2011) (internal

citations omitted.)

A killing is intentional if it is done in a “willful, deliberate and

premeditated fashion.” 18 Pa.C.S. § 2502(d). The period of reflection

needed to establish deliberation and premeditation may be as brief as a

fraction of a second. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa.

2009). Indeed, the deliberation and premeditation needed to establish

intent exist whenever the assailant possesses the conscious purpose to bring

about death. Id. The Commonwealth may use circumstantial evidence to

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establish the elements of first-degree murder, including the element of

intent. Id.

Regarding the element of intent, our Supreme Court has long

explained that “murder may be committed without a motive, either actual or

apparent, but an established motive may go to prove the related

intent[,] just as an absence of motive may be used to deny the existence of

intent.” Commonwealth v. Jones, 50 A.2d 317, 321 (Pa. 1947) (citations

omitted) (emphasis added). In addition, we observe the following:

When there is no direct evidence of intent to kill, the fact-finder
may glean the necessary intent from the act itself and from all
surrounding circumstances. Specific intent to kill can be
proven where the defendant knowingly applies deadly
force to the person of another. Death caused by
strangulation is sufficient to infer the specific intent required for
a conviction of first degree murder.

Commonwealth v. Hawkins, 701 A.2d 492, 500 (Pa. 1997) (citations

omitted) (emphasis added). Furthermore, our Supreme Court has stated

that “[t]he fabrication of false and contradictory accounts by an accused

criminal, for the sake of diverting inquiry or casting off suspicion, is a

circumstance always indicatory of guilt.” Commonwealth v. Homeyer, 94

A.2d 743, 747 (Pa. 1953) (quoting Commonwealth v. Spardute, 122 A.

161, 163 (Pa. 1923)).

Our review of the record reflects that each of the three elements of

first-degree murder was proven beyond a reasonable doubt. At trial, the

Commonwealth presented the testimony of forensic pathologist, Dr. Barbara

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K. Bollinger, who performed Victim’s autopsy three days after the murder.

N.T., 5/6/15, at 494-568. Dr. Bollinger opined that the manner of death

was drowning. Id. at 497. Further, Dr. Bollinger testified to the multiple

injuries appearing on Victim’s body, which totaled at least twenty-five. Id.

at 563. She stated that Victim had fourteen or more injuries about her

torso, eight injuries to her upper extremities, and at least twelve injuries

about her lower extremities. Id. at 562-563. Specifically, Dr. Bollinger

documented the following injuries to Victim: bruises over the upper and

lower lip; bruises over the right temporal region of the head and bruises to

the upper right portion of the head; hemorrhages about the back of the head

and about the mid aspects of the head;4 hemorrhages on the right side of

the neck within the muscles of the neck; three bruises to the scapular

regions; a patterened bruise on the infrascapular region; several bruises to

the right kidney region; abrasions on the left buttock; a bruise on the right

buttock; a bruise between the breasts; a small bruise in the right lower

abdominal quadrant; a bruise near the shoulder where the Victim’s left arm

and shoulder meet; a bruise along the left side of the torso that continued to

the backside; bruises above the left hip area; a small scratch of the skin in

the groin region; bruises on the back of the left thigh; a bruise on the outer

aspect of the left foot; a bruise on the back of the right leg; scattered
____________________________________________

4
Dr. Bollinger noted that “[t]here were no skull fractures and no collections
of blood within the skull cavity.” N.T., 5/6/15, at 500.

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abrasions on the right leg and a severe laceration to the great toe; abrasions

and contusions to the upper and lower parts of both of the arms; scratching

and bruising about both of the elbows; scrapes and contusions on the back

of both hands. Id. at 505-513.

In addition, Dr. Bollinger opined that, within a reasonable degree of

medical certainty, the various bruises and injuries Victim suffered could have

resulted from Victim being held under the water in a creek by another

person and drowning. N.T., 5/6/15, at 558-564. Furthermore, repudiating

Appellee’s claim that Victim drowned in an ATV mishap involving both

Appellee and Victim, Dr. Bollinger opined that “the lack of injuries to

[Appellee] did not correspond with [Appellee’s] rendition of the scene

circumstances [regarding] what occurred at the time of [Victim’s] drowning.”

Id. at 528.5 Accordingly, this evidence was sufficient for the jury to

____________________________________________

5
We note that during initial questioning in his home immediately after the
incident, Appellee told Trooper Thomas Grothey of the Pennsylvania State
Police a detailed story of an ATV accident in which Victim was driving the
ATV, and Appellee was seated behind her. N.T., 5/5/15, at 227. Appellee
told Trooper Grothey that the ATV accelerated very quickly backwards and
went over the embankment that was approximately six feet higher than the
creek level. Id. Appellee said that the last thing he remembered was Victim
going over the top of Appellee’s head when they hit the water. Id. at 228.
Appellee claimed that he searched for Victim around the ATV, but could not
find her. Id. at 228-229. Appellee told Trooper Grothey that when he
eventually called 911 he saw Victim across the creek. Id. at 229. Appellee
further indicated to Trooper Grothey that he jumped back into the water and
retrieved Victim, but was not strong enough to carry Victim up the
embankment. Id. Importantly, Appellee told Trooper Grothey that he was
not hurt. Id. at 225. Trooper Grothey also testified that he “did not visibly
(Footnote Continued Next Page)

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conclude beyond a reasonable doubt that Victim was unlawfully killed by

being drowned in the creek. Thus, we conclude that the Commonwealth

established the first element of the crime of first-degree murder.

With regard to the second element of first-degree murder, the

evidence likewise established that the Commonwealth proved that Appellee

was responsible for killing Victim. Indeed, it is undisputed that Appellee and

Victim were alone on the property at the time that Victim drowned in the

creek. Trooper Grothey testified that during the initial investigation,

Appellee explained that he and Victim were celebrating their thirteenth

wedding anniversary at the time of the incident and that their two children

were staying with Appellee’s parents. N.T., 5/5/15, at 225. Appellee has

not disupted this fact. Thus, Appellee was the only person who could have

held Victim underwater in the creek, thereby making him responsible for the

killing.

Concerning the issue of specific intent possessed by Appellee, the

Commonwealth presented ample evidence of the couple’s estranged

relationship, including the fact that Appellee was in the midst of an extra-

_______________________
(Footnote Continued)

see any injuries on [Appellee].” Id. Additionally, Corporal George Cronin of
the Pennsylvania State Police testified at Appellee’s trial regarding his
interview with Appellee two days after the incident. N.T., 5/6/15, at 573-
585. Corporal Cronin stated his observation was that Appellee had no
injuries to his body. Id. at 577. Corporal Cronin also testified that Appellee
indicated that he had no injuries, did not go to the hospital, and did not go
to the doctor. Id.

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marital relationship with another woman, Jessica Georg. N.T., 5/7/15-

5/8/15, at 724–846. Appellee indicated to Ms. Georg that he was nervous

about losing his house and his children in a separation or divorce. N.T.,

5/8/15, at 772. In addition, Ms. Georg read into the record a Facebook post

authored by Appellee to Ms. Georg two weeks prior to the murder, which

provided, in relevant part, as follows:

My children love their home and I would not want to take that
from them. I know you are [a] package deal and have frankly
thought about how I could change the girls[’] rooms to
accommodate your girls. But they are the easy things to get
past. The hardest will be my separation.

Id. at 783. Also, on June 1, 2012, Appellee sent Ms. Georg an email which

Ms. Georg described as follows, “[Appellee] wrote, I love you, in all caps

with more exclamation points tha[n] I can count.” Id. at 793.

On the evening of June 2, 2012, Appellee sent the following Facebook

message to Ms. Georg:

Can’t believe how I've fallen in love with you in such a short
period of time. It’s crazy when you step back and think about it.
I feel like I’m in a jail cell. Wanting something I can’t have. So
it hurts real bad. I believe you feel the same. I understand your
position. Single, want to be with someone, have a man pursuing
you that you have been intimate with, so you are torn and want
satisfaction. Understanding this, I tried to push the limits, take
risks at getting caught prematurely to develop what I truly
believe will be something that few people on this earth get to
experience. My life is riddled with so many emotions, it’s hard to
comprehend. I want to be yours. I want to help you pack,
move, do whatever I can to help you, but I can’t. It feels like
something is sticking in my chest with a knife. I hate feeling this
way. So tears are filling my eyes because I guess I have to say
good-bye [sic] until things are appropriate.

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N.T., 5/11/15, at 1085-1086.

Ms. Georg also testified that on the afternoon of the murder, Appellee

sent Ms. Georg multiple text messages. N.T., 5/8/15, at 802-805. One of

the text messages from Appellee stated, “[R]eally miss you.” Id. at 803.

The next text message from Appellee to Ms. Georg exclaimed, “And really

really really feel I was made for you.” Id. Another text message from

Appellee stated, “Yes. But it is true I love you.” Id.

In addition, on that same afternoon Appellee sent Ms. Georg a text

message with the lyrics of the song “You Are My Sunshine,” and the

comment, “Well, maybe one day you won’t need to buy another property.”

N.T., 5/8/15, at 805. Appellee ended that particular text message with the

statement, “Love you. XOOOOO.” Id.

The Commonwealth also presented stipulated evidence of the

existence of a total of $1,714,000 in life insurance policies upon Victim, with

Appellee being the designated beneficiary of those policies. N.T., 5/11/15,

at 920-921. In addition, it was stipulated that on the morning of June 1,

2012, Appellee conducted a Google search on his work computer using the

words “life insurance review during contestability period.” Id. at 918. This

cumulative evidence, although circumstantial, viewed in the light most

favorable to the Commonwealth, is sufficient to establish a motive for

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Appellee’s murder of Victim, thereby satisfying the necessary element of

intent.6

In conclusion, the record, viewed in the light most favorable to the

Commonwealth, reflects that the Commonwealth established Victim was

unlawfully killed and that Appellee committed the murder with the requisite

motive and intent. Accordingly, we reverse the order granting Appellee’s

motion for judgment of acquittal, and remand for reinstatement of the jury

verdict on the charge of first-degree murder and judgment of sentence.

We next turn to the cross-appeal filed by Appellee, in which he

challenges whether the Commonwealth met its burden of proof with regard

to the crime of first-degree murder, and whether the trial court erred in

denying his motion in limine to suppress two out-of-court statements of

Victim. Appellee’s Brief at 18-32, 32-47.

As our Supreme Court has noted:
____________________________________________

6
We further observe that Appellee offered contradictory accounts of the
details of the accident. Specifically, we note that Michael Simpson, the EMT
who arrived on the scene, testified that Appellee told him that when Appellee
did not see Victim after the accident “he got back in the water and dove
down to the ATV.” N.T., 5/6/15, at 424. Appellee stated to Mr. Simpson
that he found Victim under the ATV and that “[i]t took him several tries to
get her loose.” Id. This account by Appellee contradicts the version of the
incident he related to Trooper Grothey that, believing Victim might be
trapped under the ATV, Appellee searched for Victim around the ATV and
could not find her, and that it was not until he was later on the phone that
Appellee saw Victim across the creek and then jumped back into the water
and retrieved her from across the creek. N.T., 5/5/15, at 228-229. These
contradictory accounts of the alleged accident given by Appellee immediately
after the incident are additional indicators of guilt. Homeyer, 94 A.2d 747.

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only an aggrieved party can appeal from an order entered
by the lower court. Pa.R.A.P. 501; In re Elliott’s Estate, 388
Pa. 321, 131 A.2d 357, 358 (Pa. 1957); see also Green by
Green v. SEPTA, 380 Pa. Super. 268, 551 A.2d 578, 579 (Pa.
Super. 1988) (citations omitted) (“To be ‘aggrieved’ a party
must have been adversely affected by the decision from which
the appeal is to be taken. Generally, a prevailing party is not
‘aggrieved,’ and, therefore, does not have standing to appeal an
order which has been entered in his or her favor.”)

Commonwealth v. Polo, 759 A.2d 372, 373 n.1 (Pa. 2000) (emphasis

added).

In Commonwealth v. Dellisanti, 831 A.2d 1159 (Pa. Super. 2003)

(en banc), reversed on other grounds, 876 A.2d 366 (Pa. 2005), this Court

quashed a cross-appeal from a judgment of sentence filed by the

Commonwealth. In so doing, we stated the following:

We are constrained to quash the Commonwealth’s appeal as
there appears to be no basis upon which the Commonwealth
may cross-appeal from the judgment of sentence. The
Commonwealth is not an aggrieved party as it prevailed in the
proceedings below. Appellant was convicted as the
Commonwealth charged, and the Commonwealth took no issue
with the legality or the discretionary aspects of the sentence
imposed. Our research has revealed no cases in which the
Commonwealth was permitted to cross-appeal from a judgment
of sentence under the same or similar circumstances. It is
axiomatic that a party who is aggrieved by an appealable order
can appeal from that order if the issues have been properly
preserved below. The requirement that a prospective
appellant be aggrieved by the order which he is
attempting to appeal is not one which can be waived by
the action or inaction of his opponents. An aggrieved party
is one who has been adversely affected by the decision from
which the appeal is taken. One is not an aggrieved party
when one prevails and wins the case-in-chief even if one
issue in the case was decided against that party.
Moreover, a prevailing party’s disagreement with the legal
reasoning or basis for a decision does not amount to such

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a cognizable aggrievement as is necessary to establish
standing.

Id. at 1163 n.7 (citations omitted) (emphases added). See also Taylor v.

Department of Transportation, 948 A.2d 189, 193 (Pa. Cmmw. 2008)

(quashing without prejudice cross-appeal of Licensee who was not aggrieved

because he prevailed below and was “presumably not dissatisfied with the

trial court’s ruling as said ruling was in his favor” and concluding that

“Licensee apparently wants this Court to grant his appeal on the basis of

every legal argument raised before the trial court”).7

Our review of the record reflects that on May 13, 2015, the jury

returned a verdict of guilty on the sole charge of first-degree murder. That

same day the trial court imposed a judgment of sentence of life

imprisonment. Appellee then filed timely post-sentence motions. On

September 1, 2015, the trial court entered an order that denied Appellee’s

request for a new trial but granted “[Appellee’s] motion for acquittal based

on the Commonwealth’s failure to present sufficient evidence to sustain a

First Degree Murder conviction.” Order, 9/1/15, at 1. Immediately, the
____________________________________________

7
“Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012); see also Commonwealth v. Rodriguez, 81 A.3d 103, 107
n.7 (Pa. Super. 2013) (“Although the decisions of the Commonwealth Court
are not binding upon this Court, they may serve as persuasive authority”).

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Commonwealth filed an appeal from the trial court’s order.8 Appellee then

filed a cross-appeal from the trial court’s order of September 1, 2015.

However, in light of the trial court’s ruling granting Appellee’s motion for

judgment of acquittal, Appellee is presumably not dissatisfied with the trial

court’s ruling on his post-sentence motion. Indeed, it cannot be said that

Appellee was aggrieved by the order on appeal because said order granted

his request for judgment of acquittal. Moreover, Appellee has presented his

argument setting forth why he believes that the trial court was correct in

granting his post-sentence motion. Appellee’s Brief at 18-32.

Accordingly, even though the trial court did not grant Appellee’s

request for a new trial, we fail to see how Appellee was aggrieved by the

order granting his request for judgment of acquittal so as to endow him with

standing to file the instant cross-appeal. Hence, we quash Appellee’s cross-

appeal because he prevailed below. Dellisanti, 831 A.2d at 1163 n.7.

However, we do so without prejudice to Appellee’s ability to file a direct

appeal from the reinstated judgment of sentence, at which point Appellee

may raise any and all appropriate and preserved issues that he deems to be

necessary.
____________________________________________

8
As previously noted, our case law has permitted the Commonwealth to
appeal from orders that grant post-sentence motions for judgment of
acquittal in favor of a defendant. Feathers, 660 A.2d at 94. However, our
research has discovered no cases wherein a successful defendant who has
been granted a judgment of acquittal of the only crime charged against him
has taken an appeal from that order.

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J-A25014-16

In conclusion, we reverse the trial court’s order granting Appellee’s

post-sentence motion for judgment of acquittal. We quash Appellee’s cross-

appeal from the order disposing of Appellee’s post-sentence motions.

Further, we remand this matter to the trial court with direction to reinstate

the jury’s guilty verdict and original judgment of sentence. Feathers, 660

A.2d at 94.

Order reversed. Case remanded for reinstatement of the jury verdict

and judgment of sentence. Cross-appeal at 1679 MDA 2015 quashed.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/12/2017

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