Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1971, No. 450, in case of Commonwealth of Pennsylvania v. Halford Bowden.
Edward Rendell, Assistant District Attorney, with him Maxine J. Stotland, Albert L. Becker, and Arthur R. Makadon, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
David H. Kubert, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Nix. Mr. Justice Roberts and Mr. Justice Manderino join in this concurring opinion.
This is an appeal by the Commonwealth*fn1 from the granting of a motion in arrest of judgment by the Court of Common Pleas of Philadelphia. The salient facts are as follows:
The appellee, Halford Bowden, was indicted for murder in connection with the death of Alphonso Saunders. The evidence established Saunders invited Bowden to share a bag of heroin with him, and provided the funds for the purchase of the narcotic. Bowden purchased the heroin and injected himself. Saunders was unable to properly inject himself, and requested Bowden to make the injection and Bowden complied. Saunders died from an adverse reaction to the dosage of heroin.
Appellee was tried before Judge Robert W. Williams, Jr. sitting without a jury and was found guilty of murder in the second degree. Motions for new trial and in arrest of judgment were denied on April 21, 1972, but sentence was deferred. On September 20, 1972, the court reconsidered the disposition of the post-trial motions and after argument granted the motion in arrest of judgment on the ground the trial evidence was insufficient as a matter of law to establish malice, a necessary ingredient of the crime of murder in the second degree.
The Commonwealth initially contends the trial judge lacked the power to vacate his order of April 21, 1972, denying the post-trial motions. The foundation of the
Commonwealth's argument is the Act of June 1, 1959, P. L. 342, § 1, 12 P.S. 1032,*fn2 which states a court may alter an order, decree, judgment or sentence only within the term of court, or for a period of thirty days from the date of entry of the original order where the term of court terminates prior to a thirty-day period. The Commonwealth asserts since the judge changed his order in the instant case beyond the statutory period, his order granting the motion in arrest of judgment was void.
The flaw in the Commonwealth's argument is it overlooks the fact the statute does not apply to interlocutory orders. The statute is a mere codification of the common law with a thirty-day modification, and the common law rule was stated in Markofski v. Yanks, 297 Pa. 74, 146 A. 569 (1929) as follows: "We find no error in the order appealed from. The common law rule that a court cannot change its judgment after the ...