Appeal from order of Court of Common Pleas of Lancaster County, No. 773 of 1974, in case of Commonwealth of Pennsylvania v. Jeffrey Lynn Yoder.
Louise G. Herr, Assistant District Attorney, with her Mary Anne Motter, Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellant.
William C. Haynes, Assistant Public Defender, submitted a brief for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Dissenting Opinion by Van der Voort, J. Price, J., joins in this dissenting opinion.
[ 236 Pa. Super. Page 539]
This is an appeal by the Commonwealth from a lower court order granting the appellee's motion in arrest of judgment.*fn1 The court premised its decision on the conclusion that the trial court erred in failing to suppress the fruits of an illegal search. Reviewing the record diminished by the tainted evidence, the court found the evidence insufficient and concluded that judgment would necessarily have to be arrested.
Judgment may not be arrested, however, upon a diminished record. "In passing upon such a motion, the
[ 236 Pa. Super. Page 540]
sufficiency of the evidence must be evaluated upon the entire trial record. . . [A]ll evidence actually received must be considered, whether the trial rulings thereon were right or wrong." Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965) (emphasis original); see also Commonwealth v. Siegel, 223 Pa. Superior Ct. 398, 302 A.2d 461 (1973). Upon determining that an error was committed by the suppression hearing court, the court should have granted the motion for a new trial.
The order granting arrest of judgment is vacated and appellee is granted a new trial. See Commonwealth v. Maybee, 429 Pa. 222, 239 A.2d 332 (1968).
Order vacated and new trial granted.
Dissenting Opinion by Van der ...