Friday, April 25, 2008

Exhibit "A": Com. v. Johnson: Opinion (3)

Consistent with this exception, criminal defendants have appealed before judgment of sentence when an appeal was necessary to ensure that they would not be deprived of a constitutional right. In Commonwealth v. Brady, 510. Pa. 336 846, 508 A.2d 286, 291 (1986), for example, we held that a defendant may immediately appeal the denial of a motion to dismiss based upon double jeopardy absent a trial court finding that the motion is frivolous. If it is determined post-judgment that the trial court erred in denying a pre-trial motion based upon double jeopardy, the defendant’s right to be free of a second prosecution is lost. Id. at 340, 508 A.2d at 288.

In contrast, a defendant may not immediately appeal the denial of a suppression motion. Commonwealth v. Bosurgi, 411 Pa. 56, 64, 190 A.2d 304, 309 (1963). Even though suppression motions are generally based upon alleged constitutional violations, the claims can be effectively reviewed post-judgment. If a ruling was incorrect, the defendant is granted a new trial, the illegally-obtained evidence is suppressed, and his constitutional right is not lost. Similarly, this Court has held that an order rejecting a defendant’s claim that his right to a speedy trial was violated is not immediately appealable. Commonwealth v. Myers, 457 Pa.. 317, 319—20, 322 A.2d 131, 133 (1974). As long as there has been a hearing in the court below on the speedy trial issue, the right to a speedy trial can be adequately protected in a review following trial. Commonwealth v. Swartz, 397 Pa.Super. 157, 161, 579 A.2d 978, 980 (1990).

While this Court has not addressed whether orders disqualifying counsel in criminal cases are immediately appealable, the United States Supreme Court has held that they are not. In Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed2d 288 (1984), the district court granted the government’s motion to disqualify a law firm that was retained to represent multiple defendants. It found a clear potential for conflicts of interest. The court presumed that the firm obtained privileged information from each of the defendants and thus disqualified it from representing any of them. The defendants appealed and argued in part that the disqualification of counsel of their choice deprived them of their Sixth Amendment right to assistance of counsel.

The United States Supreme Court held that disqualification orders do not satisfy the requirements of the collateral order exception. Id. at 268-69, 104 S.Ct. at 1056-57. The Court found that the exception would not apply whether a defendant had to show that he was prejudiced by the removal of counsel or he did not have to make such a showing. It stated that if a defendant is not required to show prejudice, the disqualification order can be effectively reviewed post judgment. Id. The exception’s third requirement is not met. Post-conviction review protects the right to counsel because if a defendant establishes that removing counsel was an error, he gets a new trial with his counsel of choice. His right is not lost. The Court further stated that if a defendant must show prejudice, the exception does not apply because the disqualification order would not be separate from the merits. The effect of counsel’s disqualification cannot be assessed until the case is tried.

The Court also explained that it strictly interprets the collateral order exception in criminal cases because of the compelling interest in prompt trials. Id. at 265-66, 104 S.Ct at 1054-55. It found disqualiflation orders unlike other collateral orders affecting rights that can be lost if not appealed before trial, such as the denial of a double jeopardy claim. Id. Rather, it viewed them as indistinguishable from other pre-trial orders that affect criminal defendants' rights but must await the completion of trial court proceedings for review. Thus, the Court ordered that the appeal be dismissed. Id. at 270, 104 S.Ct. at 1057.


3. Brady was before the Court to address the applicability of a Supreme Court case that was decided before the Court set forth the test for anappealable collateral order in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). Thus, while considering the principles embodied in the rest, Brady—as well as earlier Supreme Court decisions cited in this opinion—decided the appealability of the pre-trial order without addressing the collateral order exception per se.