Commonwealth v. Cole

• Decision Date: 20 March 1970
• Parties: COMMONWEALTH of Pennsylvania v. James COLE, Appellant.
• Court: Pennsylvania Supreme Court

263 A.2d 339

437 Pa. 288

COMMONWEALTH of Pennsylvania v. James COLE, Appellant.

Supreme Court of Pennsylvania.

March 20, 1970.

I. Leonard Hoffman, Ettinger, Poserina, Silverman Dubin, Anapol & Sagot, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Philadelphia, James D. Crawford, Asst Dist. Atty., Chief, Appeals Division, Richard A Sprague, First Asst. Dist. Atty., for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION

JONES Justice.

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 jdugment 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 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 alternation, 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 lacked Any power to amend or correct the March 3 order. In support of this contention, Cole places great reliance upon Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). Tabb is clearly inapposite. In Tabb, after an appeal had been taken to our Court, the court below changed its order granting a motion in arrest of judgment and entered a new order granting a new trial. The holding in Tabb was that, since the matter had been removed from the court below by reason of the appeal to our Court, the court below lacked any jurisdiction to change its order.

In the instant case, the order of March 3 was patently erroneous. The grant of a new trial And the grant of the motion in arrest of judgment were so clearly antagonistic that even the most casual reading of the order would disclose the irreconcilable nature thereof. To grant a new trial And a motion in arrest of judgment simultaneously was contrary to common sense; if the motion in arrest of judgment was proper Cole could not be tried again whereas, if the new trial was proper, the motion would have to fail. What the court did was simply to correct, by its order of June 18, a mistake which was plain on the face of the order and make the order of March 3 speak the truth. Almost seven decades ago, the United States Supreme Court, speaking in Gagnon v. United States, 193 U.S. 451, 456, 24 S.Ct. 510, 48 L.Ed. 745 (1903), said: 'The power to amend its records, to correct mistakes of the clerk or other officer of the court, inadvertencies of counsel, or supply defects or omissions in the record, even after the lapse of the term, is inherent in courts of justice * * *.' See also: Commonwealth v. Rusic, 229 Pa. 587, 591, 79 A. 140 (1911); Crew, Levick & Co. v. McCafferty, 124 Pa. 200, 203, 16 A. 743 (1889); Smith v. Hood, 25 Pa. 218 (1855); ^[1] Commonwealth ex rel. Lepera v. Rundle, 205 Pa.Super.Ct. 251, 253, 208 A.2d 874 (1965); Commonwealth...