Jury Selection in Cuadra Case Resumes Today

The Citizens' Voice is reporting that Nearly 100 potential jurors for the capital homicide case of Harlow Cuadra have walked through the doors of county Judge Peter Paul Olszewski Jr.’s courtroom. After four days of questioning, only 11 jurors have made the cut.

Prosecution and defense attorneys will continue their search at 8:30 a.m. today for the 12th juror and four alternates who will decide Cuadra’s guilt or innocence in the January 2007 killing of Bryan Kocis, who was stabbed at his Dallas Township home before it was set on fire.

Jury selection in the case, which started Tuesday, has progressed slowly at times. Prosecution and defense attorneys have interviewed 94 potential jurors individually, for a trial expected to last about three weeks. The high publicity of the case, the fact prosecutors are pursuing the death penalty and any potential bias against Cuadra, who worked in the gay pornography business, have all led to the pace of selecting a jury.

Forty-one potential jurors were dismissed for cause or potential bias, most of them stating they couldn’t impose the death penalty or that they had heard too much about the case. Because prosecutors are pursuing the death penalty, every juror must be willing to consider capital punishment if the jury finds Cuadra guilty of first-degree homicide.

Each side has searched for any potential bias, particularly related to views on homosexuality. Prosecutors allege Cuadra, 27, killed Kocis, a rival producer of gay pornography, in order to eliminate him as a competitor.

Defense Attorney Demetrius Fannick, who is not involved in this case, said jury selection would be expected to take this long, as attorneys are juggling legal issues as well as other factors.

“You’re asking the jury to believe you, to believe your argument,” Fannick said. “That (jury selection) is really the only time you have to interact with the juror to make them feel comfortable, to get them to like you. If you’re on your 30th juror of that day, you might be tired, but you can’t think of that person as one of the countless ones who won’t make the panel, you have to treat that person like the next juror.”

Defense attorneys have struck 18 potential jurors; prosecutors have struck 14. Each side is given 20 challenges while selecting the 12 jurors and two challenges when selecting the four alternates.

Fannick defended Hugo Selenski in his 2006 death penalty trial — he was found not guilty of homicide, but guilty of other charges — when 114 potential jurors were questioned over six days. Fannick said he has had cases where more than 125 potential jurors were interviewed.

District Attorney Jackie Musto Carroll wouldn’t specifically comment about selecting jurors because the Cuadra case is still ongoing but said that in any trial expected to last this long, attorneys will make sure all jurors appear ready to handle the rigors of paying attention to testimony over several weeks.

Fannick said attorneys will have different approaches to jury selection, but the process is as important as the trial itself.

“You go in with a preconceived idea of what you’d like the panel to look like,” he said. “Maybe you want more men or women or blue collar workers. Whatever it is in your mind, you’re trying to get that panel to hear your case.”

So far, Cuadra’s jury is made up of seven men and four women. If the jury and alternates are selected before early afternoon Monday, Olszewski said opening arguments will begin later in the day.

Harlow's Not Giving Up...

To give a little background of what I'm talking about, I'm re-posting a story that I did on July 15, 2008:

"Last Wednesday, Harlow Cuadra’s remaining attorneys, Stephen Menn and Michael Senape, filed a motion to suspend all pre-trial proceedings in Luzerne County Court until the state Superior Court determines whether it will accept a petition requesting a review of Olzsewski’s March 19 order barring Cuadra from retaining defense attorney Demetrius Fannick.

While we already know that PPO denied their motion to suspend, the State Superior Court has just ruled that they have denied Harlow's petition for review. So this little issue is now over, at least until after the trial."
----

Update 11/11/08: Well maybe not... I just noticed today that Harlow Cuadra has appealed the Fannick decision all the way to the Supreme Court of Pennsylvania (it was actually filed on 08/14/2008), here's a copy of the docket:

While no decision has been made yet, I can't help but think they'll likely follow the previous rulings of PPO and the Superior Court, but I guess you can't blame Harlow for trying.

Whatever Happened To... Part Deux

As blogger Jim once said: "Some comments here are so interesting, they really deserve their own seperate threads. This IMO is one of those instances"...

I'm also caught with facing the same dilemma in a comment that was just recently made:

"DeWayne In San Diego said...

PC I think we have discussed this before you don't "Owe" anyone or anything but the TRUTH. If you can confirm who lives there at the Bordello you have the right to report that fact.

Some may ask what relevance this has to Joe and Harlow sitting in jail awaiting trial.

Let me fill you in here,,if we learned for instance that Harlows relatives were living at Stratum Ct that is legitimate news.

Why?

Because we would need to know if they are paying rent or living rent free?

Why?

When Demtrious Fannick was hired for Harlow who was going to pay his fee?

If the same couple have arranged for Harlows family to live in the house I think you can draw a pretty good picture of whats going on.

The Kerkes family has made it very clear to Harlow Cuadra as long as you stay loyal to Joe we will take care of your family.

If Harlow were to testify against Joe all bets are off.

You see the reason we are interested WHO lives at the Bordello has a lot to do with this case its NOT an irrelevancy!

Far from it.

I would guess PC has been threatened, no surprise, its happened before the people on Joe and Harlow's side are not exactly ethical.

Yeah good "Christians" Mama and Papa Kerekes think they be,,,

RRRIGGGHHTTT!,,,"

---

What's interesting about this comment is the fact that Joseph Kerekes' family did sell their house the day after Harlow Cuadra and Joseph Kerekes were extradited to Pennsylvania. Perhaps it's not that hard to figure out where the money came from to hire Fannick, and what the Kerekes' family was promised - free housing perhaps?

We'll all know very shortly.

An Open Response to Blogger Albert

"What cause was Demetrius Fannick fired for? The answer is no cause. Just suspicion. Nothing derogatory was proven, only accusations were made and for PPO that was good enough. He himself fired the only attorney Harlow himself had hired."

While as sensational as this may sound, it's simply not correct. Demetrius Fannick was removed from defending Harlow Cuadra due to his previous involvement with Joseph Kerekes. Here's the entire saga to that story (whether you or I agree, or disagree... PA law does trump our opinion):

Demetrius Fannick

"Observe who appointed and who subsequently fired the other attorney's."

In almost all of the cases... it was Judge Ciavarella who appointed counsel, but I'm not sure as to who 'fired' any attorneys (other than perhaphs themselves), since they were all removed due to conflict of interest.

"Whatever reason the State had for firing them would have been adequate reason for not hiring them in the first place. Still that hiring was done by the Stae of Pennsylvania through judical functionary."

To be fair, on every occasion, it was revealed that the conflict existed after-the-fact, usually by the defense attorneys themselves:

Joseph Kerekes Gets New Attorneys
DA: Get Cuadra Outside Counsel
A Potential Conflict Short-Circuts Hearing

"Now PPO wants to claim it is out of his hands? I fully expect this will figure significantly in the appeal process. As I have said so many times, 'Anywhere but Luzerne County.'"

It may very well be out of PPO's hands... and I'm sure it'll be used in the appeal process (assuming Harlow and Joe are found guilty). I mentioned months ago how long it takes for a capital murder trial to go from arraignment to trial... guess they should be happy they're not in N.Y., where it can take as long as 26 months.

"My question as to when and why another Judge was appointed to take over the responsibility of providing adequate representation is absolutely critical to this case. An assumption on yours or anyone's part is pointless, however well informed or intentioned."

Perhaps because that's the laws of PA. I guess my assumption would be no better than yours.

"This was a clearly investigated case. It is a case for the State to lose only by choice. Choices similar to the ones made in the much earlier Kocis case years ago. The investigators did their jobs in spades. The judiciary and the State of Pennsylvania will lose this of their own decision making."

Sounds like an assumption to me. :)

"Who put this other Judge in charge of this small portion of a capital case and under what authority?"

Judge Mark A. Ciavarella Jr. is the president judge, and apparently he's the 'decider'.

Note: I completely respect Albert's concern... so let's all have a friendly debate on the issue(s).

Order Denying Petition for Review

Last Wednesday, Harlow Cuadra’s remaining attorneys, Stephen Menn and Michael Senape, filed a motion to suspend all pre-trial proceedings in Luzerne County Court until the state Superior Court determines whether it will accept a petition requesting a review of Olzsewski’s March 19 order barring Cuadra from retaining defense attorney Demetrius Fannick.

While we already know that PPO denied their motion to suspend, the State Superior Court has just ruled that they have denied Harlow's petition for review. So this little issue is now over, at least until after the trial.

Update: The Citizens' Voice also carries the story.

Motion to Stay Denied

On July 9th, Harlow Cuadra's attorneys Steve Menn and Michael Senape filed a motion requesting that future pretrial hearings be postponed until the state Superior Court responds to an appeal of Judge Peter Paul Olszewski's ruling that disqualified Demetrius Fannick from defending Cuadra.

Judge Peter Paul Olszewski has responded to the motion today by denying it. So it would appear that there will be no stay.

Update @ 07/12/2008: The Citizens' Voice also mentions it here.

Even More Delays?

According to the Citizens' Voice... late Wednesday, Harlow Cuadra’s remaining attorneys, Stephen Menn and Michael Senape, filed a motion to suspend all pre-trial proceedings in Luzerne County Court until the state Superior Court determines whether it will accept a petition requesting a review of Olzsewski’s March 19 order barring Cuadra from retaining defense attorney Demetrius Fannick.

Fannick, who has successfully defended accused murderers Hugo Selenski and Byron Vinson, met with Joseph Kerekes at least eight times at the Luzerne County Correctional Facility prior to being hired by Cuadra, which prosecutors argued created a potential conflict in the case. Only fees were discussed, Kerekes said.

Order to Quash Appeal

(Note: The following is a copy of the order granting Harlow Cuadra's appeal to be quashed. The order was originally filed on June 5, 2008, and was mentioned here on June 6, 2008).

Commonwealth of Pennsylvania
v.
Harlow Raymond Cuadra

ORDER

Appelle has filed a motion to quash this appeal from the March 19, 2008 order granting Appelle's motion to disqualify Appellant's counsel of choice. Appellee asserts that the order is interlocutory and unappealable. Appellant, defendant below, has not filed an answer.

An appeal may be taken as of right only from a final order unless otherwise permitted by rule or statute. See McCutcheon v. Philadelphia Electric Company, 788 A.2d 345 (Pa. 2002); Techtmann v. Howie, 720 A.2d 143 (Pa. Super. 1998). A final order is any order that disposes of all claims and of all parties, is expressly defined as a final order by statute, or is entered as a final order pursuant to Pa.R.A.P. 341(c). See Pa.R.A.P. 341(b). A criminal defendant generally may appeal only from a judgement of sentence. See Commonwealth v. Johnson, 705 A.2d 830 (Pa. 1998). An order removing a criminal defendant's counsel of choice from representation is Interlocutory and not immediately appealable. See Johnson, 705 A.2d at 834.

Accordingly, as Appellant's appeal is taken from an Interlocutory order and not immediately appealable, Appellee's motion to quash is hereby GRANTED.

Cuadra's Appeal... Quashed

Harlow Cuadra's appeal of Judge PPO's decision to remove Demetrius Fannick has apparently taken a serious setback today:

"APPELLEE'S MOTION TO QUASH IS GRANTED APPEAL NUMBER 779 MDA 2008"

The motion to quash was filed by the prosecution and they've apparently won. Sources tell me that Harlow won't be able to appeal Judge PPO's original decision until after the verdict... and... that there's also no chance of Demetrius Fannick being able to represent him during the current murder trial.

Other sources tell me that Harlow had planned to win this appeal... and if he didn't... there might be an offer made. An offer of what I don't know... but I'd be willing to bet it's going to be an interesting week.

Now this doesn't mean that Harlow still can't appeal the Fannick ruling... it just can't be done until after the trial.

Cuadra Gets New Counsel for Appeal

After reviewing the dockets for Harlow Cuadra's appeal of the Fannick issue, I happened to notice a new attorney listed as counsel:

Robert Michael Buttner

Scranton Bank Bldg 7th Fl
108 N Washington Avenue
Scranton, PA 18503

What's interesting is that there are now two dockets listed under Cuadra's appeal. The original docket is still there, and continues to list Harlow's already court appointed attorneys, while the new one was created on Friday, May 30, 2008. Not sure what's going on just yet, but will update this when I'm able to gather more information.

Update: Robert Buttner helps indigent defendants facing the death penalty in handling appeals to the state's Superior and Supreme courts, so it's highly unlikey he was hired/paid by Cuadra to do so, and yes... Mr. Buttner is now representing Harlow Cuadra for the appeal.

Cuadra's Appeal Process Continues...

Harlow Cuadra's appeal of the removal of previous attorney Demetrius Fannick continues with the latest update:

1. Certificate and Transmittal of Record to Appellate Court (779 MDA 2008).

2. Notice of Transmittal of Record sent to DA's office and to defense attorneys. Copy of list of record documents transmitted to Superior Court (779 MDA 2008) mailed to DA's office and to Atty Stephen Menn (CC), Atty Paul Galante (CC), and Michael B. Senape (CC).

Cuadra's Appeal Docket Sheet

Harlow Cuadra's appeal to the Superior Court of Pennsylvania for the removal of previous attorney Demetrius Fannick, has finally produced its first docket sheet:

PPO Says No

Judge Peter Paul Olszewski has denied Harlow Cuadra's request to permit an immediate interlocutory appeal... regarding the judge's removal of Cuadra's previous attorney Demetrius Fannick...

(Update 4:19 PM): The Times Leader is reporting that Harlow Cuadra’s trial on homicide charges apparently won’t be delayed because of an appeal.

Cuadra is appealing a ruling that disqualified attorney Demetrius Fannick from defending him.

Pre-trial appeals often delay the start of trial until the appeal is resolved. But a judge has to issue an order allowing that to happen.

Cuadra’s attorneys asked Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. to allow that to happen with his Fannick ruling.

But at a brief hearing on the issue Wednesday, Olszewski refused.

That means Cuadra and Joseph Kerekes are still slated to stand trial in September in the slaying of Bryan Kocis – unless the state Superior Court says otherwise.

Olszewski said Cuadra’s attorneys could ask the Superior Court to review the appeal prior to trial.

If the Superior Court decides to, the court would likely issue a stay of Cuadra’s trial.

Commonwealth's Answer(s) to Cuadra's Motion to Permit Interlocutory Appeal

While I await a copy of the missing page from the Commonwealth's Brief, I figured I'd go ahead and post about the "Answers" filed by the Commonwealth in response to Harlow Cuadra's Notice of Appeal to the Superior Court, originally filed on April 17, 2008.

Surprisingly, the Commonwealth Attorney's Office actually agreed to most of the twenty-eight arguments and statements made by Harlow Cuadra's attorneys... though there are some interesting, and one somewhat humorously put objection(s):

1. Admitted. The Commonwealth notes that these cases have been consolidated and no order granting severance has been issued.

22. Admitted. The Commonwealth advised Attorney Senape and Attorney Menn prior to the filing of this Motion that Commonwealth v. Calvin Johnson, 550 Pa. 298, 705 A.2d 830 (Pa. 1998) barred the instant appeal. Nevertheless, Defense Counsel filed this Motion to attempt an appeal.

23. Denied. Commonwealth v. Calvin Johnson, 550 Pa. 298, 705 A.2d 830 (Pa.1998) bars the instant appeal. The Pennsylvania Supreme Court, citing Flanagan v. United States, 465 U.S. 259, 104 S.Ct.1051, 79 L.E.d 2d 288 (1984) held that disqualification orders do not satisfy the collateral order exception. No mention is made of this flagship decision in the Defendant's filing.

25. Denied. This Court's ruling followed long established precedent, decades old. In T.C. & Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.,1953), the court wrote, "To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule. It would defeat an important purpose of the rule of secrecy--to encourage clients fully and freely to make known to their attorneys all facts pertinent to their cause. Considerations of public policy, no less than the client's private interest, require rigid enforcement of the rule against disclosure. No client should ever be concerned with the possible use against him in future litigation of what he may have revealed to his attorney. Matters disclosed by clients under the protective seal of the attorney-client relationship and intended in their defense should not be used as weapons of offense. The rule prevents a lawyer from placing himself in an anomalous position. Were he permitted to represent a client whose cause is related and adverse to that of his former client he would be called upon to decide what is confidential and what is not, and, perhaps, unintentionally to make use of confidential information received from the former client while espousing his cause. Lawyers should not put themselves in the position "where, even unconsciously, the might take, in the interests of a new client, and advantage derived or traceable to, confidences reposed under the cloak of a prior, privileged relationship." In cases of this sort the Court must ask whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject of his subsequent representation. If so, then the relationship between the two matters is sufficiently close to bring the later representation within the prohibition of Canon 6. In the instant case I think this can be said. The decision in Wheat v. United States, 486 U.S. 153, 158, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) has been cited at least on 654 occasions throughout the United States in state and federal courts, trial courts and appellate courts. Consequently, the Defendant's characterization that this Honorable Court's decision is a "novel" application has no basis in fact or precedent. This Court's decision is well founded in law.

26. Denied. The right to counsel of choice is not an absolute right. Commonwealth v. Calvin Johnson 550 Pa. 298, 705 A.2d 830 (Pa. 1998).

27. Denied. The mere fact that Defendant Kerekes testified does not cloak him with the imprimatur of credibility. In fact, Defendant Kerekes, riled and overcome with the appearance of Attorney Fannick in the courtroom, uttered the classic "state of mind" or "excited utterance". This emotional spontaneous utterance contradicted his later carefully prepared testimony, wherein Defendant Kerekes denied that over, 8 separate visits spanning several hours, he never talked to Attorney Fannick about his case.

28. Denied. This Court should deny the Defendant's Motion.

Commonwealth Responds to Cuadra's Motion to Permit Interlocutory Appeal

The prosecution has just filed their brief and answer, in response to Harlow Cuadra's appeal of Judge Peter Paul Olszewski's ruling to have Attorney Demetrius Fannick removed as counsel.

Since there are 14 pages of text to post, I'll be breaking this down as I've done in previous long posts, so that it's easier to read and follow.

COMMONWEALTH'S BRIEF IN OPPOSITION TO DEFENDANT CUADRA'S MOTION TO PERMIT INTERLOCUTORY APPEAL

I. STATEMENT OF FACTS
On March 19, 2008, this Honorable Court entered an order disqualifying Attorney Fannick from representing Defendant Harlow Cuadra. Thereafter, the Commonwealth advised Attorney Senape and Attorney Menn prior to the filing of this Motion that Commonwealth v. Calvin Johnson, 550 Pa. 298, 705 A.2d 830 (Pa. 1998) barred the instant appeal. Nevertheless, Defense Counsel filed this Motion to attempt an appeal.

II. ISSUE
Whether or not this Honorable Court should deny the Defendant Cuadra's Motion requesting Permission for allowance of appeal?

SUGGESTED ANSWER: YES

III. ARGUMENT AND LAW
Commonwealth v. Calvin Johnson, 550 Pa. 298, 705 A.2d 830 (Pa. 1998) bars the instant appeal. The Pennsylvania Supreme Court, citing Flanagan v. United States, 465 U.S. 259, 104 S.C.1051, 79 L.Ed 2d 288 (1984) held that disqualification orders do not satisfy the collateral order exception. No mention is made of this flagship decision in the Defendant's filing. A copy of this dispositive decision is attached hereto as Exhibit "A". This Court should deny the Defendant's Motion.

EXHIBIT A

830 Pa. 705 ATLANTIC REPORTER, 2d SERIES

The order of the Superior Court is affirmed.

CASTILLE, J., files a concurring opinion in which NEWMAN, J., joins.

CASTILLE, Justice, concurring.

I concur with the result reached by the majority but write separately as I believe that once a defendant willfully and purposefully flees from a court’s jurisdiction, he waives any review of the court’s decision regardless of whether such review be requested at the trial or appellate level. Thus, while I would affirm the trial court's denial of relief, I would do so on different grounds.

Over the last decade, as noted by Mr. Chief Justice Flaherty, this Court has repeatedly revisited the impact of a defendant’s flight upon post-flight judicial proceedings despite the seminal case of Commonwealth v. Jones 530 Pa. 536,610 AId 439(1992). The wording in Jones was unambiguous and is barely five years old:

A defendant's voluntary escape acts as a per se forfeiture of his right of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant’s capture or voluntary return to custody. Thus, by choosing to flee from justice, appellant forever forfeited his right to appeal.

53O Pa. at 54l, 610 A.2d at 441. I believe that the reasoning of this Court in Jones applies with equal force to this matter even during his trial, as opposed to “after post trial proceedings,” as was the case in Jones. To hold differently gives little meaning to stare decisis.

Persons who disregard the laws and rules which society has formulated for its orderly functioning, who disregard the mandate for their day in court, and who voluntarily and purposely ignore a court’s jurisdiction and authority, should forgo the opportunity for review of the matter and receive their due punishment.

All that is required under the federal or state constitutions is that an accused be afforded the opportunity to exercise his rights thereunder, not that such rights actually be exercised. Here appellant chose not to participate in his trial. Accordingly, I would find that appellant has waived any complaint he may have about the proceeding and that under Commonwealth v. Jones further review is precluded.

NEWMAN, J., joins this concurring opinion.

Exhibit "A": Commonwealth v. Johnson
Exhibit "A": Com. v. Johnson: Criminal Law
Exhibit "A": Com. v. Johnson: Opinion (1)
Exhibit "A": Com. v. Johnson: Opinion (2)
Exhibit "A": Com. v. Johnson: Opinion (3)
Exhibit "A": Com. v. Cassidy: Opinion
Exhibit "A": Zappala, Justice, dissenting (1)
Exhibit "A": Zappala, Justice, dissenting (2)

[to be continued... as I seem to be missing a page... go figure :)]

Commonwealth v. Johnson

Defendant was arrested for murder as a result of a statement made by child witness 13 years after crime occurred. The Court of Common Pleas of Philadelphia County, criminal Division. No. CP 93-11-2197-2200. L. Davis, removed defendant's counsel for violating court order regarding discovery of witness’s privileged mental health records. Defendant appealed. The Superior Court, No. 2907 Philadelphia 1994, 444 PaSuper. 153, 663 A.2d 720, affirmed. Commonwealth petition for allowance of appeal. The Supreme Court, No. 23 }LD. Appeal Docket 1996, Nigro, 3., in a matter of first impression, held that trial court’s disqualification order was an interlocutory order and was not immediately appealable.

Reversed and remanded.

Zappala, J., filed a dissenting opinion, in which Flaherty,C.J., joined.

Com. v. Johnson: Criminal Law

1. Criminal Law 1023(3)
Trial court’s order disqualifying defense counsel for violating court order regarding discovery of privileged mental health records of state’s witness was interlocutory order and was not immediately appealable in murder prosecution; post conviction review protected defendant’s right to counsel, since, if he established that removing counsel was an error, defendant was entitled to a new trial with his counsel of choice, and state had a compelling interest in prompt trials. U.S.C.A Const.Amend. 6.

2. Criminal Law 1023(2)

“Final order,” for purposes of appeal, is one that ends litigation or disposes of entire case. 42 Ps.C.S.A. § 742. See publication Words and Phrases for other judicial constructions and definitions.

3. Criminal Law 1023(10)
Defendant generally may appeal only from a judgment of sentence.

4. Criminal Law 1023(3)
Interlocutory order is considered final and immediately appealable, under exception for collateral orders, if (1) it is separable from and collateral to main cause of action; (2) right involved is too important to be denied review and (3) question presented is such that if review is postponed until final judgment in case, claimed right will be irreparably lost.

5. Criminal Law 641.10(1)
Defendant’s right to counsel of choice is not absolute. U.S.C.A. Const.Amend. 6.

6. Criminal Law 1023(3)
Trial court’s order removing counsel in a criminal case is interlocutory and not immediately appealable. U.S.C.A Const.Anend. 6.

John W. Packel, Helen A. Marino, Philadelphia, for Calvin Johnson.

Catherine Marshall, Louis C. Schoener, Child Advocate, Hugh B. Burns, Jr., Philadèlphia, for the Com.

Before, Flaherty, C.J., and Zappala, Cappy, Castille, Nigro and Newman, JJ.

Exhibit "A": Com. v. Johnson: Opinion (1)

Nigro, Justice.

Appellant Calvin Johnson contends that the trial court erred in removing his counsel from this case after counsel violated a court order related to the discovery of mental health records. In affirming the trial court’s decision, the Superior Court ruled that an order removing counsel is immediately appealable. As discussed below, we hold that an order disqualifying counsel is interlocutory and is not immediately appealable. Thus, we reverse the Superior Court’s decision and remand for the entry of an order quashing the appeal.

Appellant was arrested in 1998 for the 1981 murder of Elvira Hayes. Elvira Hayes was strangled in her home. When her body was discovered, Elvira Hayes' two year old son, L.P., was sleeping on top of her on the floor. Appellant was a boyfriend of Elvia Hayes and while questioned after the murder, he was not arrested. Elvira Hayes’ sister and her husband adopted L.P. after the murder. He underwent counselling and psychiatric care at several institutions in the following years.

In 1993, L.P., then 15 years old, provided a statement to the police that led to Appellant’s arrest L.P. said that he remembered seeing Appellant lying on top of his mother where her body was found. Appellant was charged with the murder and the court appointed the Public Defender Association to represent him. In preparing for trial, Appellant’s counsel sought discovery of L.P.’s mental health records. Because L did not disclose his memory of the murder for over a decade, counsel maintained that they needed the records to prepare a defense.

At a hearing, defense counsel told the court that it needed a court order to get the psychiatric records because of their confidentiality. The trial court decided that the proper course was to order that the records be produced to the court for review to determine their relevance and whether they should be released to counsel. The court then ordered the Eastern Pennsylvania ‘Psychiatric Institute (EPPI) to produce in court its records related to LP. EPPI’s records, however, were hand delivered to defense counsel and counsel read them. These documents contained records from other institutions where LP. was treated.

The court learned that defense counsel received EPPI’s records at a subsequent bearing. Counsel gave them to the court which reviewed them as originally intended for discoverable material While the court initially found no relevant documents, it undertook another review at the request of defense counsel who believed there were relevant documents based upon their review. The court then found relevant documents and gave them to both parties.

Based upon these records, Appellant moved to re-open the preliminary hearing to further question L.P. He also petitioned to obtain all of the medical records. The trial court realized at this time that defense counsel had digested all of the records and decided that the only way to proceed fairly was to give all of the records to both sides.

The Commonwealth did not review the records but consulted the Support Center for Child Advocates about L.P.’s rights. It then asked the court to appoint a child advocate to protect L.P. The court did an and the advocate maintained that L.P.’s records were absolutely privileged and suggested that the best recourse was to remove defense counsel. The Commonwealth agreed that the removal of defense counsel would protect L.P.’s rights and ensure that Appellant received a fair trial.

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).

[Subnotes]

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).

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.

[Subnotes]

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.