Appeal and petition for leave to file an appeal nunc pro tunc, Miscellaneous Docket, No. 3231, from judgment of Court of Oyer and Terminer of Allegheny County, June T., 1947, No. 66, in case of Commonwealth v. Howard Bey.
Carol Mary Los, Assistant District Attorney, Robert W. Duggan, District Attorney, for Commonwealth, petitioner.
Samuel J. Rich, with him Cooper, Schwartz, Diamond and Rich, for defendant.
Bell, C. J., Jones, Cohen, Eagen, Roberts, and Pomeroy, JJ. Mr. Justice Pomeroy concurs in the result. Mr. Justice O'Brien took no part in the consideration or decision of this case.
Howard Bey was convicted by a jury of first-degree murder in 1948 in the Court of Oyer and Terminer of Allegheny County and the penalty was fixed at life imprisonment. From the judgment of sentence, Bey appealed to this Court, and, on January 11, 1950, we affirmed Bey's conviction. See Commonwealth v. Bey, 364 Pa. 150, 70 A.2d 342 (1950).
On March 30, 1969, Bey filed a petition*fn1 under the "Post-Conviction Hearing Act" (PCH Act) in the Court of Common Pleas of Allegheny County.*fn2 After
hearing, President Judge Ellenbogen of that court granted Bey a new trial by an order issued December 22, 1969.
On February 2, 1970, the Commonwealth of Pennsylvania, acting through the District Attorney of Allegheny County, filed an appeal in this Court from the order granting a new trial and filed a petition with this Court requesting us to permit an appeal nunc pro tunc.
The Constitution of our Commonwealth provides that the Supreme Court "(c) shall have such jurisdiction as shall be provided by law." (Art. V, Section 2(c)) (Emphasis added). Our Court has exclusive appellate jurisdiction in cases involving felonious homicide such as presented in the case at bar.*fn3 Our jurisdiction to entertain an appeal, in cases involving felonious homicide, from an order entered in a post-conviction hearing, i.e., the jurisdiction "provided by law," arises by virtue of Section 11 of the PCH Act (19 P.S. § 1180-11 (Supp. 1969)), which provides, inter alia : "The party aggrieved by an order under Section 10 of [the PCH Act] may, within thirty days from the day on which the order is issued, appeal to the court having appellate jurisdiction over the original conviction." (Emphasis added)
Forty-two days after President Judge Ellenbogen's order, the Commonwealth, as an "aggrieved party," filed an appeal to our Court. This appeal was filed twelve days beyond the statutorily-prescribed time for taking an appeal.
The timeliness of an appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of our Court and its competency to act. See: Commonwealth v. Yorktowne ...