Appeals from order of Court of Oyer and Terminer of Philadelphia County, June T., 1961, Nos. 1947 and 1948, in case of Commonwealth of Pennsylvania v. Lincoln L. Tabb.
Joel S. Moldovsky, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, 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 Jones. Mr. Chief Justice Bell dissents. Mr. Justice Musmanno did not participate in the decision of this case.
On November 22, 1962, Lincoln L. Tabb was convicted by a Philadelphia jury of murder in the second
degree. Motions in arrest of judgment and for a new trial were filed. After argument, the court below granted the motion in arrest of judgment. Such a result was thought necessary because the court determined that error was committed at Tabb's trial by the admission of incriminating statements which Tabb had made while in the custody of the police. The court felt that without the use of those statements, the verdict could not stand. The Commonwealth appealed from this order.
While this appeal was pending, the court below sua sponte vacated its order arresting the judgment and entered a second order granting a new trial. The Commonwealth then filed a timely appeal from the new trial order.
When these appeals were presented to this Court, we reversed the action of the court below in arresting the judgment, ruling that such an order could not be made on a diminished record. We also vacated the order granting a new trial, ruling that the lower court was without jurisdiction to proceed further with the cause or to modify its original order after an appeal from it had been filed and perfected in this Court. However, since evidence of Tabb's incriminating statements to the police had been admitted at his trial in the absence of the procedure mandated by Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), we remanded the record to the trial court with directions to proceed with a post-trial hearing at which the admissibility of the evidence would be determined. See Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965).
Subsequently, the trial court conducted a "Jackson" hearing and then granted a new trial. The ruling was based upon the conclusion that Tabb's incriminating statements to the police were involuntary and
should not have been referred to at his trial. The Commonwealth, in this appeal, ...