Friday, April 25, 2008

Exhibit "A": Com. v. Johnson: Opinion (2)

The trial court removed the Public Defender Association and appointed new counsel for Appellant. It based its decision upon defense counsel’s disregard of the court’s instructions that it would review L.P;’s records, and its order directing EPPI to produce the records to the court. The court decided that counsel would be unable to forget the information in the records and that the harm, to the witness, LP., could, not be otherwise remedied. On appeal, the Superior Court affirmed. It ruled that the court's order is immediately appealable and held that the trial court did not abuse its discretion or violate Appellant’s constitutional rights by removing counsel under the circumstances. We granted Appellant’s Petition for Allowance of Appeal.

[1-3] We must first address whether an order removing counsel in a criminal case is immediately appealable. This is an issue of first impression for this Court. The Superior Court has appellate jurisdiction of all appeals from final orders of the courts of common pleas. 42 Pa. Cons.Stat.§ 742 (1981). A final order is one that ends the litigation or disposes of the entire case. Puger v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545(1978). In criminal cases, a defendant generally may appeal only from a judgment of sentence. Commonwealth v. Myers, 457 Pa. 311, 319, 322 A.2d 131, 132 (1974). This rule prevents undue delay and avoids the disruption of criminal cases by piecemeal appellate review.

[4] The rule of finality, however, is not absolute. As interlocutory order is considered final and appealable if it satisfies an exception for collateral orders. Under this exception, an order is immediately appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably ost. Puger v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978). See also Pa. R.App. P. 313 (codifying collateral order exception).


1. The Commonwealth moved to quash Appellaint’s appeal of the order removing counsel. The Superior Court entered an interlocutory order denying the motion and explained its ruling in its opinion on the merits. In response to Appellaint’s brief to this Court, the Commonwealth again argues that the trial court’s order is not immediately appealable and this jurisdictional issue is now properly before us.

2. This Court has followed the United States Supreme Court’s approach to collateral orders established in Cohen v. Beneficial industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Bell v.Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A 734, 735 (1975).While the United States Supreme Court refined the requirements for an appealable collateral order in Coopers & Lybrand v. Livesay, 437 (1.5. 463,98 S.Ct. 24S4. 57 LEd.2d 351 (1978).