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COMMONWEALTH PENNSYLVANIA v. LEMUEL REESE (06/23/87)

filed: June 23, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
LEMUEL REESE, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 84-621.

COUNSEL

Edward S. Bianarik, Jr., State College, for appellant.

M. Eileen Tucker, Assistant District Attorney, Bellefonte, for Com., appellee.

Wieand, Beck and Watkins, JJ.

Author: Wieand

[ 364 Pa. Super. Page 554]

Lemuel Reese has filed an appeal from a judgment of sentence imposed for operating a motor vehicle while his driving privileges were under suspension. The substantive evidence of guilt is great, and Reese has not challenged its

[ 364 Pa. Super. Page 555]

    sufficiency. He contends, rather, that his conviction is procedurally defective.

On November 4, 1983, Reese was arrested and charged with driving while his operating privileges were under suspension. The charge was dismissed on procedural grounds by a district justice in Centre County because he believed that the arresting officer had violated Pa.R.Crim.P. 51(A)(1)(a)*fn1 by failing to issue a citation to Reese at the time of arrest and by causing a citation to be filed thereafter with the issuing authority. The Commonwealth petitioned the court of common pleas and obtained a writ of certiorari directing the district justice to forward the record for review. Upon review, the common pleas court determined that Criminal Rule 51(A)(1)(a) had not been violated. The case, therefore, was remanded to the district justice to hear and determine the case on its merits. On June 29, 1984, Reese was found guilty of driving while his operating privileges were under suspension. He then appealed to the court of common pleas, where a hearing de novo was held. Following that hearing, Reese was again found guilty. Post-trial motions were filed nunc pro tunc, but they were denied and a judgment of sentence was imposed. Reese appealed. He argues (1) that the Commonwealth should not have been allowed to appeal from the order of the district justice dismissing the prosecution and (2) that the prosecution was brought in violation of Pa.R.Crim.P. 51(A)(1)(a). We find no merit in these arguments and affirm the judgment of sentence.

The decision of the district justice to dismiss the charge was based on procedural grounds and was entered prior to hearing. It did not pertain to the guilt or innocence of the accused. Therefore, the Commonwealth had a right of appeal. Commonwealth v. Cruz, 355 Pa. Super. 176, 178, 512 A.2d 1270, 1270 (1986), citing United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). How, then, was the Commonwealth to exercise this right of appeal?

[ 364 Pa. Super. Page 556]

The Judicial Code, at 42 Pa.C.S. ยง 934, provides that "[u]nless and until changed by general rule, the judges of the courts of common pleas . . . shall have the power . . . to issue writs of certiorari to the minor judiciary." In the instant case, the trial court issued a writ of certiorari to the district justice in order to review the legal basis on which the district justice had caused the charges to be dismissed. This is the function of a writ of certiorari. See: Commonwealth v. Cook, 226 Pa. Super. 273, 308 A.2d 151 (1973).

Pa.R.Crim.P. 67(g)*fn2 abolished writs of certiorari only as a means "of appealing from a summary conviction." Where there has been a summary conviction, the exclusive means by which a defendant can obtain review by the court of common pleas is by appeal. In such cases, common pleas is ...


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