Commonwealth v. Williams , 360 Pa. Super. 23 ( 1986 )

HOFFMAN, Judge:

These are consolidated appeals from the order below which arrested judgment and the second order which vacated the order arresting judgment and corrected a clerical error on the bill of information. Appellant, the Commonwealth, contends that the lower court had no authority to issue either order. For the reasons that follow, we vacate the order arresting judgment and affirm the second order to the extent that it corrected a clerical error in the record.

On June 4, 1985, appellee was tried without a jury and found guilty of aggravated assault, recklessly endangering another person, and possessing an instrument of crime. In announcing the verdict, the trial court did not specify whether the aggravated assault was graded as a felony or a misdemeanor.¹ The bill of information, however, reflected a guilty verdict for felony aggravated assault, and the bill was later signed by the trial court. On August 13, 1985, at sentencing, the court was asked to clarify the verdict. The court indicated that it intended to convict appellee of misdemeanor aggravated assault. In an attempt to correct the discrepancy between the intended verdict and that reflected on the bill, the court entered an order arresting judgment on the felony aggravated assault and substituting a conviction for misdemeanor aggravated assault. Appellant timely appealed from this order. On September 12, 1985, the trial court entered a second order which vacated the August 13, 1985 order and struck the notations on the bill of information reflecting entry of a guilty verdict for felony aggravated assault. In its September 12, 1985 order, the court stated that, in announcing the verdict on June 4, 1985, it intended to find appellee guilty of misdemeanor aggravated assault, and that the notations on the bill to the contrary resulted from a clerical error. Appellant timely appealed this order and the two appeals were thereafter consolidated.

Appellant first contends that the trial court had no authority either to arrest judgment via its August 13, 1985 order or to vacate the August 13, 1985 order with its September 12, 1985 order. We agree.

Appellee does not contest that the trial court had no authority to arrest judgment because sufficient evidence was presented to establish the elements of felony aggravated assault. See Brief for Appellee at 5 n. 3. See also Commonwealth v. Parker, 305 Pa.Superior Ct. 516, 523-24, 451 A.2d 767, 770 (1982) (in considering motion in arrest of judgment, trial court is limited to determination of absence or presence of that quantum of evidence necessary to establish elements of crime). Moreover, the trial court had no power to vacate the arrest of judgment because appellant took an appeal from the August 13, 1985 order. See 42 Pa.C.S.A. § 5505 (court may modify or rescind order within thirty days if no appeal has been taken or allowed). The appeal having been taken, however, the validity of the August 13, 1985 order is properly before this Court. We conclude that the trial court had no power to arrest judgment and, accordingly, vacate the order of August 13, 1985.

Appellant next contends that the trial court had no power to issue its September 12, 1985 order, to the extent that it attempted to correct a clerical error in the record. In support of this contention, appellant maintains that (1) there is no statute or rule of appellate procedure that justifies the court’s action; (2) there is no evidence to indicate that the trial court intended to convict appellee of anything but felony aggravated assault; and (3) there is no evidence that an error was made in recording the original verdict. Appellant concludes that the court’s order, rather than an attempt to correct a clerical error, was no more than a reevaluation of the intended verdict and an attempt to alter it. We disagree.

A court has no authority to change a previously recorded guilty verdict if the change is based on a post-verdict factual redetermination. Commonwealth v. Parker, 305 Pa.Superior Ct. 516, 521-22, 451 A.2d 767, 769 (1982). It is well-settled, however, that a court possesses the inherent power to correct clerical errors appearing either in the record or in its orders. Commonwealth v. Cole, 437 Pa. 288, 293, 263 A.2d 339, 341 (1970); Commonwealth v. McDonald, 285 Pa.Superior Ct. 534, 537, 428 A.2d 174, 175 (1981). Moreover, the power to correct errors extends to improperly recorded verdicts; thus, a court may correct a recorded verdict if the verdict does not reflect the obvious intention of the trier of fact. Commonwealth v. Huett, 462 Pa. 363, 368, 341 A.2d 122, 124 (1975); Commonwealth v. Allen, 287 Pa.Superior Ct. 88, 99, 429 A.2d 1113, 1118 (1981). Under Pennsylvania’s Rules of Appellate Procedure, the trial court retains its power to correct such errors even after an appeal has been taken:

If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.

Pa.R.A.P, 1926 (emphasis added).

Here, upon review of the record, we are satisfied that the listing of appellee’s conviction as felony aggravated assault on the bill of information resulted from a clerical error and that the trial court had the power to correct that error. In announcing its verdict, the court stated, “I find you guilty of aggravated assault, assault with a deadly weapon, possession of instrument of crime, generally, and recklessly endangering.” N.T. June 4, 1985 at 100. The court did not specify the grading for the aggravated assault conviction. At sentencing, when asked to clarify the verdict, the court indicated that its intention was to convict appellee of misdemeanor aggravated assault. N.T. August 13, 1985 at 5. In explaining the verdict, the court noted that “it was one of these emotional situations in which he did very serious injury. I don’t think there was the intent to do the kind of injury that actually occurred, and therefore, I will grade this as an M-l____” Id. This clarifying statement went right to the heart of the distinction between felony and misdemeanor aggravated assault: i.e., the presence or absence of “circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). The court then attempted to correct the improperly recorded verdict, first by arresting judgment, and second by issuing an order correcting the clerical error on the bill of information to reflect a guilty verdict for aggravated assault as a misdemeanor rather than a felony. There is no evidence indicating that the court changed the verdict based on a factual redetermination. Instead, as the court noted in its opinion, the confusion resulted from the conviction improperly being noted as a felony on the bill of information. Lower Court Opinion at 2. The trial court explained that this notation “apparently had been entered by a court clerk who assumed that there had been an F-2 adjudication.” Id. We have no reason to disbelieve the trial court’s explanation that the discrepancy between the verdict intended and the verdict recorded resulted from this clerical error. Thus, we find that the court was not changing the verdict, as appellant alleges, but merely correcting the clerical error in the record to insure that appellee was not mistakenly convicted of a more serious offense. We conclude that the trial court intended to convict appellee of aggravated assault graded as a misdemeanor, that a clerical error resulted in the verdict being noted as a felony on the bill of information, and that the court’s September 12, 1985 order fell within the power of a court to correct a verdict to conform to the intention of the trier of fact. See Commonwealth v. Huett, supra.

For the foregoing reasons, we vacate the order arresting judgment and affirm the second order to the extent that it corrected a clerical error on the bill of information to reflect a conviction for aggravated assault as a misdemeanor of the first degree.

The order of August 13, 1985 is hereby vacated. The order of September 12, 1985 is vacated to the extent that it vacated the order of August 13, 1985, and is affirmed to the extent that it corrected the clerical error on the bill of information.

POPOVICH, J., files a dissenting opinion.

1 . 18 Pa.C.S.A. § 2702 provides in relevant part:

(a) Offense defined. — A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life;

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;

(b) Grading. — Aggravated assault under subsection (a)(1) ... is a felony of the second degree. Aggravated assault under subsection (a) ... (4) ... is a misdemeanor of the first degree.

Id.