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234 Pa. Code Rule 606. Challenges to Sufficiency of Evidence.

Rule 606. Challenges to Sufficiency of Evidence.

 (A)  A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged in one or more of the following ways:

   (1)  a motion for judgment of acquittal at the close of the Commonwealth’s case-in-chief;

   (2)  a motion for judgment of acquittal at the close of all the evidence;

   (3)  a motion for judgment of acquittal filed within 10 days after the jury has been discharged without agreeing upon a verdict;

   (4)  a motion for judgment of acquittal made orally immediately after verdict;

   (5)  a motion for judgment of acquittal made orally before sentencing pursuant to Rule 704(B);

   (6)  a motion for judgment of acquittal made after sentence is imposed pursuant to Rule 720 (B); or

   (7)  a challenge to the sufficiency of the evidence made on appeal.

 (B)  A motion for judgment of acquittal shall not constitute an admission of any facts or inferences except for the purpose of deciding the motion. If the motion is made at the close of the Commonwealth’s evidence and is not granted, the defendant may present evidence without having reserved the right to do so, and the case shall otherwise proceed as if the motion had not been made.

 (C)  If a defendant moves for judgment of acquittal at the close of all the evidence, the court may reserve decision until after the jury returns a guilty verdict or after the jury is discharged without agreeing upon a verdict.

Comment

   Rule 1124 was adopted in 1983 to codify the procedures applicable to challenges to the sufficiency of the evidence to convict in view of JARA, which repealed the statutes concerning such challenges. See JARA §  2(a), 42 P. S. §  20002(a) 194, 1275, 1322.

   Paragraph (A), amended in 1993, standardizes the terminology in Pennsylvania for challenges to the sufficiency of the evidence before verdict in view of Smalis v. Pennsylvania, 476 U. S. 140 (1986). See also Fed.R.Crim.P. 29. These amendments do not preclude the use of demurrers for other than sufficiency of the evidence challenges, as otherwise provided by law. For similar reasons, the term ‘‘motion for judgment of acquittal’’ is used in paragraph (A)(6) instead of ‘‘motion for arrest of judgment’’ in order to align this aspect of Pennsylvania legal terminology with that of the majority of other states and with the Federal Rules. See Fed.R.Crim.P. 29. This amendment is not intended to change Pennsylvania law. It follows that the inadvertent use of the word ‘‘demurrer’’ when ‘‘motion for judgment of acquittal’’ is now appropriate would not affect an otherwise valid sufficiency challenge.

   A motion in arrest of judgment would still be the appropriate means for raising a challenge based on the court’s jurisdiction, on double jeopardy, or on the statute of limitations.

   Paragraph (A)(4) permits an oral motion for judgment of acquittal to be made immediately after verdict, a procedure of long standing in Pennsylvania.

   Other amendments in paragraph (A), however, reflect changes in Pennsylvania practice. Under Rule 720, the time for a written post-verdict motion for judgment of acquittal has been moved to post-sentence. Rule 704(B) provides a narrow exception to these new procedures by authorizing an oral motion for extraordinary relief, which is made before sentencing. A defendant may challenge the sufficiency of the evidence in any one or more of the ways listed in paragraph (A) of this rule. If the defendant does not move for a judgment of acquittal before verdict pursuant to paragraph (A)(1) or (A)(2), the defendant may still raise the issue for trial court review after the jury has been discharged without agreeing upon a verdict pursuant to paragraph (A)(3), or after verdict pursuant to paragraphs (A)(4), (A)(5), or (A)(6). The defendant may also raise the issue for the first time on appeal under paragraph (A)(7). If the defendant does move before verdict and the motion is denied, the defendant may renew the motion before the trial court pursuant to paragraphs (A)(3) through (A)(6).

   Appellate review of a weight of the evidence claim is limited to a review of the judge’s exercise of discretion. See Commonwealth v. Widmer, 689 A.2d 211 (Pa. 1997) and Commonwealth v. Brown, 648 A.2d 1177, 1189—1192 (Pa. 1994). Therefore, although a challenge to the sufficiency of the evidence may be raised for the first time on appeal, paragraph (A)(7), a challenge to the weight of the evidence must be raised with the trial judge or it will be waived. See Rule 607.

   For procedures governing a motion for judgment of acquittal after the jury has been discharged without agreeing upon a verdict, see Rule 608.

   Official Note

   Previous Rule 1124 adopted January 24, 1968, effective August 1, 1968; amended September 18, 1973, effective January 1, 1974; amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; rescinded July 1, 1980, effective August 1, 1980, and not replaced. Present Rule 1124 adopted January 28, 1983, effective July 1, 1983; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; Comment revised October 15, 1997, effective January 1, 1998; renumbered Rule 606 and amended March 1, 2000, effective April 1, 2001.

   Committee Explanatory Reports:

   Final Report explaining the March 22, 1993 amendments published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).

   Final Report explaining the October 15, 1997 Comment revision concerning weight of the evidence claims published with the Court’s Order at 27 Pa.B. 5599 (November 1, 1997).

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).



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