Friday, April 25, 2008

Exhibit "A": Com. v. Cassidy: (Opinion)

The Superior Court declined to follow Flanagan In Commonwealth v. Cassidy, 390 Pa.Super. 359, 568 A.2d 693 (1989). In Cassidy, the trial court also granted the Commonwealth's motion to disqualify counsel representing co-defendants due to a perceived conflict of interest. When a defendant appealed, the Superior Court held that the disqualification order satisfied the collateral order exception. It stated that the order is separate from the main cause of action and involves the important Sixth Amendment right to choose counsel. Id. at 363, 568 A.2d at 695.

The Superior Court disagreed with Flanagan that the order did not satisfy the exception’s third requirement—that it could not be court that by forcing a defendant to proceed to trial without counsel of choice, he must reveal his defense. Even if awarded a new trial for violation of the right to counsel, he is prejudiced. Id. at 366-67, 568 A.2d at 696-97. In addition, the court found that it is unfair to require a defendant to pay for counsel who is not his choice and then bear the cost of a second trial. Id. Finally, the court stated that a defendant should not have to go through the anxiety of trial before appealing his attorney’s disqualification. Id.

The Superior Court’s concerns, however, have nothing to do with whether the right to counsel of choice is lost if not reviewed before judgement. In every case where erroneous pre-trial rulings ultimately require a new trial, defendants have revealed their defenses and borne the costs of trial The majority of pre-trial rulings, however, are not immediately appealable. Thus, the reasoning in Cassidy does not support that an order removing counsel satisfies the third requiremeat of the collateral order exception and that it cannot be reviewed post-judgment.

[5] We agree with the United States Supreme Court’s decision in Flanagan that disqualification orders do not satisfy the collateral order exception. Like the denial of a suppression motion, an order disqualifying counsel is reviewable after judgment of sentence. If a judgment is obtained and it is determined on appeal that the trial court improperly removed counsel, the right to counsel of choice is not lost. There will be a new trial and the defendant will have his counsel of choice. This is unlike a double jeopardy claim where if the trial goes forward and the court wrongly denied the motion, the right is lost. Furthermore, the right to counsel of choice is not absolute. Commonwealth v. Hess, 532 Pa. 607, 619, 617 A.2d 307, 314 (1992); Commonwealth v. Baines, 480 Pa. 26, 30, 389 A.2d 68, 70(1978).

In addition, this case exemplifies the immeal appeals should be avoided. After Appellant's counsel was removed, the Superior Court denied a motion to stay the case from proceeding. Thus, while this appeal has been pending, this case is advancing with Appellant’s new counsel learning the case, developing a relationship with Appellant, and potentially obtaining a Judgment in Appellant’s favor. The propriety of removing Appellant’s original counsel ultimately may be come moot.

[6] We thus hold that an order removing counsel in a criminal case is interlocutory and not immediately appealable. Whether the trial court erred in removing counsel is not properly before this Court. We thus reverse and remand this case to the Superior Court to enter an order quashing the appeal. Jurisdiction relinquished.


4. With respect to the financial cost of two trials, the Commonwealth distinguishes this came from Cassidy because Appellant's counsel was court-appointed. Because we find below that the propriety of removing counsel--appointed or retained--can be reviewed after trial, we need not address distinctions, if any, between the defendants' rights to retained versus court-appointed counsel.