Appeal from the Order entered September 3, 1985, by the Superior Court at No. 627 Pittsburgh, 1984, denying motion for reargument of an Order entered on June 21, 1985, reversing Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, entered April 19, 1984, at No. CC8308990A. Pa. Super. , 499 A.2d 402 (1985).
Lester G. Nauhaus, Public Defender, John H. Corbett, Jr., Chief -- Appellate Div., Office of Public Defender, Pittsburgh, for appellant.
Robert Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a dissenting opinion. Hutchinson, J., filed a dissenting opinion.
The Appellant, Regis Tuladziecki, pleaded guilty to violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-113(a)(16), (30), arising out of the possession of Percodan, Preludin, and Quaalude tablets and the delivery of cocaine and Percodan to an informant. As to four of the charges the trial court adjudged Tuladziecki guilty without further penalty, 42 Pa.C.S. § 9753. On the charge of selling Percodan tablets, the court imposed a sentence of $1,000 fine and five years probation. On the Commonwealth's appeal, Superior Court held that the sentence was outside the sentencing guidelines and unreasonable, reversed the judgment of sentence, and remanded for resentencing. 346 Pa. Super. 636, 499 A.2d 402 (1985). We granted allowance of appeal to examine the procedure by which the Commonwealth obtained Superior Court review of Tuladziecki's sentence.
Appellate review of sentences is governed statutorily, by Subchapter G of the Sentencing Code, 42 Pa.C.S. § 9781. It is not disputed that the sentence imposed in this case was legislatively permitted. Accordingly, the legality of the sentence is not implicated and any appeal therefrom is not as of right under subsection (a). Rather, subsection (b) providing for appeal of the discretionary aspects of sentences by allowance controls.
The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.
42 Pa.C.S. § 9781(b). Pursuant to our authority to "prescribe general rules governing practice, procedure and the conduct of all courts," Pa. Const., Art. V, § 10(c), this Court has promulgated rules to implement this statutory provision. Specifically, by Note accompanying Pennsylvania Rule of Appellate Procedure 902, we have provided that a notice of appeal under that rule "operates as the 'petition for allowance of appeal' under the Sentencing Code." "In effect, the filing of the 'petition for allowance of appeal' contemplated by the statute is deferred by these rules until the briefing stage, where the question of the appropriateness of the discretionary aspects of the sentence may be briefed and argued in the usual manner." Id.
Pa.R.A.P. 2116(b) provides that
[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall include any questions relating to the discretionary aspects of the sentence imposed (but not the issue whether the appellate court should exercise its discretion to reach such question) in the statement [of questions involved] required by Subdivision (a). Failure to comply with this ...