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.
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.
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 :)]
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 :)]
