NO. 759 PHILA. 1982, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Criminal No. Misc. Dkt. No. 81-912943 MC 80-12-103
John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, President Judge, and Cavanaugh and Hoffman, JJ.
[ 324 Pa. Super. Page 336]
This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying a petition for a writ of certiorari to the Municipal Court of Philadelphia. Appellant argues that the Municipal Court erred in denying his motion to suppress physical evidence. We hold that appellant did not timely file his petition for a writ of certiorari, and therefore quash this appeal.
Appellant was arrested on December 1, 1980, and charged with knowing and intentional possession of a controlled substance and with possession of a controlled substance with intent to deliver. On April 29, 1981, appellant's motion to suppress physical evidence was denied and on May 12, 1981, appellant was found guilty of the first charge and not guilty of the second in a non-jury trial in the Municipal Court of Philadelphia, and was sentenced to one year of probation. On July 31, 1981, appellant filed a petition for a writ of certiorari in the Court of Common Pleas of Philadelphia, alleging that the Municipal Court erred in denying his motion to suppress. The Court of Common Pleas, HIRSH, J., held that the Municipal Court had not erred, and by opinion and order of July 26, 1982, denied appellant's petition for a writ of certiorari.
Timeliness of an appeal is a jurisdictional issue that may be raised by the court sua sponte. Penjerdel Refrigeration Corporation, Inc. v. R.A.C.S., 296 Pa. Super. 62, 442 A.2d 296 (1982). Although appellant was sentenced on May 12, 1981, his petition for a writ of certiorari was not filed until July 31, 1981, which was seventy-nine days after he was sentenced. An appeal must be filed within 30 days after the entry of the order from which the appeal is taken. 42 Pa.C.S.A. § 5571. Similarly, Pa.R.Crim.P. 6006, governing procedures for the Philadelphia Municipal Court, provides that after imposition of sentence, the judge shall inform a defendant "of the right to appeal for trial de novo within 30 days . . . ." Here, the sentencing judge complied with that rule. N.T. 5/12/81 at 18. The question we must
[ 324 Pa. Super. Page 337]
decide, therefore, is whether a defendant who chooses to file a petition for a writ of certiorari, rather than an appeal for a trial de novo, is also subject to the 30 day limitation. We hold that he is.
The writ of certiorari is authorized as a mode of appeal from the Municipal Court of Philadelphia by Section 26 of the Schedule to Article 5 of the Pennsylvania Constitution:
§ 26. Writs of certiorari
Unless and until changed by rule of the Supreme Court, in addition to the right of appeal under section nine of this article, the judges of the courts of common pleas, within their respective judicial districts, shall have power to issue writs of certiorari to the municipal court in the City of Philadelphia, justices of the peace and inferior courts not of ...