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COMMONWEALTH v. COLE (03/20/70)

decided: March 20, 1970.

COMMONWEALTH
v.
COLE, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1967, No. 276, in case of Commonwealth v. James Cole.

COUNSEL

I. Leonard Hoffman, with him Ettinger, Poserina, Silverman, Dubin, Anapol and Sagot, for appellant.

James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Jones

[ 437 Pa. Page 290]

James Cole, indicted for murder and voluntary manslaughter in connection with the homicide of one James Hardy, on July 8, 1968, was found guilty by a jury of voluntary manslaughter. Motions in arrest of judgment and for a new trial were filed and argued.

On March 3, 1969, Judge Bernard Kelley, of the Court of Common Pleas of Philadelphia County, entered the following order: "And Now, to wit, this 27th day of February, 1969, it is hereby ordered and decreed that defendant's motion for a new trial and arrest of judgment is granted." (Emphasis added)

On June 18, 1969 -- three and one-half months after the original order -- Judge Kelley entered the following order: "And Now, to wit, this 18th day of June, 1969, the order of the Court dated March 3, 1969, is modified and the words 'and arrest of judgment is granted' are deleted so that the order now reads: And Now, to wit, this 3rd day of March, 1969, it is hereby ordered and decreed that defendant's motion for new trial is granted; motion in arrest of judgment is dismissed."

Cole's contentions are several in number: (1) the court below lacked power to amend or modify the order of March 3, 1969, in view of the Act of June 1, 1959 (P. L. 342, § 1, 12 P.S. § 1032), and, therefore, the

[ 437 Pa. Page 291]

    appeal is not from an interlocutory order; (2) the Commonwealth, not having appealed from the order of March 3, 1969, is precluded from attacking that order which has now become res judicata; (3) the granting of the motion in arrest of judgment under the March 3 order was a final order, and the reversal of that order on June 18 constitutes an appealable order; (4) the granting of the motion in arrest of judgment under the March 3 order was proper; (5) even though the order below be considered interlocutory in nature, in view of the instant "exceptional" circumstances, the present appeal should lie.

Initially, we consider whether the court below had the power to amend the March 3 order. The Act of 1959, supra, provides: "In any civil, criminal or equitable proceeding in which the court has heretofore been vested with the power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, any order, decree, judgment or sentence only during the term of court in which the order, decree, judgment or sentence, was entered of record, the court, in addition to such power, jurisdiction and authority, shall hereafter have the same power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, the order, decree, judgment or sentence for a period of thirty days subsequent to the date of entering of record the order, decree, judgment or sentence, in any instance where the term of court shall terminate prior to such thirty day period: Provided, That all parties in interest, including the district attorney in criminal cases, are notified in advance of such proposed alteration, modification, suspension, reinstatement, termination, amendment or rescission. 1959, June 1, P. L. 342, No. 70, § 1."

Cole argues that, since the term of court had expired and the thirty-day statutory period had long since lapsed, at the time the court entered its order on June 18, it ...


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