J-A10026-18


                                   2018 PA Super 222

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    IQUIL IRICK                                :   No. 695 EDA 2017

                Appeal from the Order Entered January 25, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): MC-51-CR-0000210-2016

BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

OPINION BY McLAUGHLIN, J.:                             FILED AUGUST 03, 2018

       The Commonwealth appeals from the order of the Philadelphia County

Court of Common Pleas granting a writ of certiorari and reversing the

Philadelphia Municipal Court’s denial of Iquil Irick’s Motion to Suppress. Irick

filed for certiorari before trial or sentencing in Municipal Court. Municipal

Court’s order was therefore not a final order and the Court of Common Pleas

lacked jurisdiction. We vacate the Court of Common Pleas’ order and remand

for further proceedings in Municipal Court.1

       Irick was charged in Municipal Court with several crimes, including

possession with intent to deliver a controlled substance (“PWID”) and knowing

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 Although the Court of Common Pleas lacked jurisdiction, our jurisdiction is
secure. The Commonwealth certified in its Notice of Appeal that the Court of
Common Pleas’ order terminates or substantially handicaps the prosecution.
See Pa.R.A.P. 311(d).
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and intentional possession of a controlled substance. On May 11, 2016, he

presented a Motion to Suppress in Municipal Court. N.T., Suppression Hearing,

05/11/16, at 7-8. After a brief hearing on September 12, 2016, Municipal

Court denied the Motion. Before going to trial in Municipal Court, and

consequently before Municipal Court imposed sentence, on October 5, 2016,

Irick petitioned the Common Pleas Court for a writ of certiorari. He argued

that Municipal Court had erroneously denied his Motion to Suppress. After a

hearing on January 25, 2017, the Court of Common Pleas reversed Municipal

Court’s order and granted the Motion to Suppress.

     The Commonwealth filed this timely appeal and argues that the Court

of Common Pleas erroneously reversed. Commonwealth’s Br. at 1. We do not

reach the Commonwealth’s argument because the Court of Common Pleas

lacked jurisdiction. While neither party has questioned Common Pleas’

jurisdiction, we may raise the issue sua sponte. See Cleveland Asphalt Inc.

v. Coalition for a Fair and Safe Workplace, 886 A.2d 271, 276 (Pa.Super.

2005).

     A petition for a writ of certiorari is one of two avenues by which a

criminal defendant in Municipal Court may obtain appellate review in the Court

of Common Pleas. The other alternative is to appeal for a trial de novo. See

Pa.R.Crim.P. 1006. However, under either procedure, a defendant may only

obtain review in Common Pleas Court after Municipal Court imposes sentence.

     In criminal cases, Pennsylvania Rules of Criminal Procedure 1000

through 1010 govern appellate review of Municipal Court decisions in the

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Court of Common Pleas. See Commonwealth v. Menezes, 871 A.2d 204,

207 (Pa.Super. 2005). Rule 1006(1)(a) requires a Municipal Court judge to

inform a defendant after the imposition of sentence of the defendant’s “right

to file a petition for writ of certiorari within 30 days without costs or to appeal

for trial de novo within 30 days without costs. . . .”

       Rule 1006(1)(a) thus recognizes the defendant’s right to petition for

certiorari after sentencing. However, no rule, statute, or other provision of law

permits a criminal defendant in Municipal Court to petition for certiorari before

sentencing. The absence of any provision for seeking certiorari before

sentencing leads us to conclude that a criminal defendant in Municipal Court

may only petition for certiorari after sentencing.

       The maxim of statutory construction, “expressio unius, exclusio alterius”

– “the mention of one thing implies the exclusion of others not expressed”2 –

applies fully to the construction of the Pennsylvania Rules of Criminal

Procedure. This is because Criminal Rule 101(C) requires us to construe the

Rules of Criminal Procedure “[t]o the extent practicable . . . in consonance

with the rules of statutory construction.” Pa.R.Crim.P. 101(C). Because Rule

1006 recognizes the right to seek certiorari after the pronouncement of

sentence, and no rule or other provision of law provides a similar right to

certiorari at any earlier stage, we hold that a criminal defendant in Municipal

Court may petition for a writ of certiorari only after the imposition of sentence.
____________________________________________


2Jerry, Inc. v. Nufab Corp., 677 A.2d 1256, 1258 (Pa.Super. 1996) (quoting
Scott Township Appeal, 130 A.2d 695, 698 (Pa. 1957)).

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      Two additional factors support this conclusion. First, as a general rule,

appellate review is only available after the entry of a final order, and the policy

reasons for the general rule will be well-served by allowing defendants to

obtain certiorari review in Common Pleas Court only after Municipal Court

imposes sentence. See Rae v. Pa. Funeral Dirs. Ass’n, 977 A.2d 1121,

1124-25 (Pa. 2009). This general rule exists to facilitate the prompt resolution

of cases by “ensuring that [trial judges'] every determination is not subject to

the immediate review of an appellate tribunal. . . .” Rae, 977 A.2d at 1124

(quoting Riyaz A. Kanji, The Proper Scope of Pendent Appellate Jurisdiction in

the Collateral Order Context, 100 Yale L.J. 511, 512-13 (1990) (discussing

federal collateral order rule)). The general rule also serves to provide appellate

courts with the “opportunity . . . to consider a trial judge’s actions in light of

the entire proceedings below, thereby enhancing the likelihood of sound

appellate review.” Id.

      Restricting Municipal Court criminal defendants to seeking certiorari

after sentencing furthers these policies. Conversely, allowing interlocutory

review in Common Pleas through petitions for writs of certiorari would

undoubtedly stall criminal cases in Municipal Court and frustrate effective

appellate review.

      Second, the Philadelphia Court of Common Pleas Criminal Rules, like the

statewide rules, provide only for a procedure by which a defendant may seek

certiorari “[u]pon conviction and sentence.” Phila.Crim.R. 630(F). They do not

set forth procedures for interlocutory certiorari review:

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      Upon conviction and sentence in the Municipal Court trial, a
      defendant shall have the right to take an appeal to and secure a
      trial de novo in Common Pleas Court or file a Writ of Certiorari
      from the Court of Common Pleas to the Municipal Court for review
      of the record of his conviction. In no event may a defendant take
      an appeal for a trial de novo and a Writ of Certiorari.

Phila.Crim.R. 630(F).

      As with the statewide rules, the local rules’ provision of a single, post-

sentencing procedure indicates that no other procedure is proper. Of course,

Philadelphia Criminal Rule 630(F) is not dispositive of the question before us,

as a local rule may not be inconsistent with any statewide rule. Pa.R.Crim.P.

105; Pa.R.J.A. 103(d)(2). Nevertheless, Rule 630(F) is congruent with the

statewide rules, and its terms demonstrate the Philadelphia Court of Common

Pleas’ understanding of the correct procedure under the statewide rules. That

understanding further persuades us of the correctness of our decision.

      Here, Irick filed the petition for certiorari before sentencing in Municipal

Court. The proper procedure was to file the petition after sentencing. See,

e.g., Commonwealth v. Neal, 151 A.3d 1068, 1079 (Pa.Super. 2016)

(reviewing denial of writ of certiorari on the merits, where petition was filed

after sentencing); Commonwealth v. Baldwin, 147 A.3d 1200, 1202

(Pa.Super. 2016) (same). However, as we explain above, Municipal Court’s

order was not a final order and the Court of Common Pleas lacked jurisdiction.

The Court of Common Pleas thus should have dismissed Irick’s petition. See

Pa.R.Crim.P. 1006(A). We therefore vacate the Court of Common Pleas’




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January 25, 2017 order and remand the case to that court with instructions

to remand to Municipal Court for further proceedings.

        Order   vacated.   Case   remanded     with   instructions.   Jurisdiction

relinquished.

        Judge Ransom did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/18




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