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COMMONWEALTH v. TABB (03/16/65)

decided: March 16, 1965.

COMMONWEALTH, APPELLANT,
v.
TABB



Appeals from orders of Court of Oyer and Terminer of Philadelphia County, June T., 1961, No. 1947, in case of Commonwealth of Pennsylvania v. Lincoln L. Tabb.

COUNSEL

Paula S. Rand, Assistant District Attorney, with her Joseph M. Smith, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.

Cecil B. Moore, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 417 Pa. Page 14]

Lincoln L. Tabb, after trial, was convicted by a jury of murder in the second degree. Motions in arrest of judgment and for a new trial were filed and, after argument, the court en banc granted the motion in arrest of judgment. The Commonwealth filed an appeal from said order to this Court.

[ 417 Pa. Page 15]

After the foregoing appeal was entered and perfected by the filing of the writ of certiorari in the court below, the lower court sua sponte reconsidered its action sustaining the motion in arrest of judgment, vacated said order and then ordered a new trial. From this order, the Commonwealth filed a second appeal.*fn1

The lower court lacked jurisdiction to reverse and modify its original order, or to further proceed with the cause, after the appeal therefrom had been entered and perfected: Harwood v. Bruhn, 313 Pa. 337, 170 A. 144 (1934), and Commonwealth ex rel. Podvasnik v. Podvasnik, 198 Pa. Superior Ct. 107, 181 A.2d 843 (1962). The Act of June 1, 1959, P. L. 342, No. 70, § 1, 12 P.S. § 1032, cited by the court below as authority for its action has no application. That statute merely preserves the power of the court for a period of thirty days to alter an order or judgment previously entered, notwithstanding the fact that the term of the court has expired in the meantime. It applies only to those instances wherein the court still has jurisdiction of the cause. In the present case, the court below lost all jurisdiction upon perfection of the appeal. The second order entered by the court below granting a new trial and reversing its previous order entering the arrest of judgment is, therefore, vacated.

The next question for determination is the correctness of the lower court's order in sustaining the motion in arrest of judgment. Our conclusion is that this order was likewise erroneous.

The basis for this action was the conclusion of the court below that the trial court erred in admitting in evidence at trial a confession of the accused, and that,

[ 417 Pa. Page 16]

    since without the confession the evidence was insufficient to sustain the conviction, the judgment ...


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