Harlow to File Appeal...

Sources tell me that an attorney is preparing to file an appeal for Harlow Cuadra.

Update @ 4:26 PM: The appeal has been filed to the Superior Court of Pennsylvania by Attorney Paul J. Walker.

Update @ 4:34 PM: The appeal is from "the Conviction and Sentence on March 16, 2009".

Update @ 4:41 PM: The Citizens' Voice is also reporting that Harlow Raymond Cuadra, who was convicted of first-degree murder and given a life sentence for Bryan Kocis' January 2007 stabbing death, is appealing his guilty verdict.

Cuadra "hereby appeals to the Superior Court of Pennsylvania from the Conviction and Sentence on March 16, 2009," reads a one-page document filed at the Luzerne County Courthouse today by Cuadra's attorney Paul J. Walker.

Cuadra, 27, of Virginia Beach, Va., was found guilty following a three-week-long trial, but the jury could not reach a unanimous decision for the death penalty.

Update @ 5:50 PM: If I had to guess... the appeal will have something to do with inadequate time for Harlow's (paid) attorney's to mount a proper defense... that and probably some moaning about the Fannick issue a year ago (that's my guess). Look for the complete filing to the Superior Court to be revealed shortly.

The Appeals Process

Now that Harlow Cuadra's been found guilty of first-degree murder, and sentenced to serve the rest of his life in prison, he's faced with two choices. Cuadra can either accept his fate, or try his luck at getting a reduced charge/sentence, new trial, or acquittal by filing an appeal. If Harlow chooses to file an appeal, here's the steps that must be taken:

Rule 720. Post-Sentencing Procedures; Appeal.

(A) TIMING.

(1) Except as provided in paragraphs (C) and (D), a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.

(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the motion;

(b) within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or

(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.

(3) If the defendant does not file a timely post-sentence motion, the defendant’s notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in paragraph (A)(4).

(4) If the Commonwealth files a timely motion to modify sentence pursuant to Rule 721, the defendant’s notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth’s motion.

(B) OPTIONAL POST-SENTENCE MOTION.

(1) Generally.

(a) The defendant in a court case shall have the right to make a post-sentence motion. All requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post-sentence motion, which may include:

(i) a motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere;

(ii) a motion for judgment of acquittal;

(iii) a motion in arrest of judgment;

(iv) a motion for a new trial; and/or

(v) a motion to modify sentence.

(b) The defendant may file a supplemental post-sentence motion in the judge’s discretion as long as the decision on the supplemental motion can be made in compliance with the time limits of paragraph (B)(3).

(c) Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.

(2) Trial Court Action.

(a) Briefing Schedule

Within 10 days after a post-sentence motion is filed, if the judge determines that briefs or memoranda of law are required for a resolution of the motion, the judge shall schedule a date certain for the submission of briefs or memoranda of law by the defendant and the Commonwealth.

(b) Hearing; Argument

The judge shall also determine whether a hearing or argument on the motion is required, and if so, shall schedule a date or dates certain for one or both.

(c) Transcript

If the grounds asserted in the post-sentence motion do not require a transcript, neither the briefs nor hearing nor argument on the post-sentence motion shall be delayed for transcript preparation.

(3) Time Limits for Decision on Motion.

The judge shall not vacate sentence pending decision on the post-sentence motion, but shall decide the motion as provided in this paragraph.

(a) Except as provided in paragraph (B)(3)(b), the judge shall decide the post-sentence motion, including any supplemental motion, within 120days of the filing of the motion. If the judge fails to decide the motion within 120 days, or to grant an extension as provided in paragraph (B)(3)(b), the motion shall be deemed denied by operation of law.

(b) Upon motion of the defendant within the 120-day disposition period, for good cause shown, the judge may grant one 30-day extension for decision on the motion. If the judge fails to decide the motion within the 30-day extension period, the motion shall be deemed denied by operation of law.

(c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and, as provided in Rule 114, forthwith shall serve a copy of the order on the attorney for the Commonwealth, the defendant’s attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied. This order is not subject to reconsideration.

(d) If the judge denies the post-sentence motion, the judge promptly shall issue an order and the order shall be filed and served as provided in Rule 114.

(e) If the defendant withdraws a post-sentence motion, the judge promptly shall issue an order memorializing the withdrawal, and the order shall be filed and served as provided in Rule 114.

(4) Contents of Order.

An order denying a post-sentence motion, whether issued by the judge pursuant to paragraph (B)(3)(d) or entered by the clerk of courts pursuant to paragraph (B)(3)(c), or an order issued following a defendant’s withdrawal of the post-sentence motion, shall include notice to the defendant of the following:

(a) the right to appeal and the time limits within which the appeal must be filed;

(b) the right to assistance of counsel in the preparation of the appeal;

(c) the rights, if the defendant is indigent, to appeal in forma pauperis and to proceed with assigned counsel as provided in Rule 122; and

(d) the qualified right to bail under Rule 521(B).

(C) AFTER-DISCOVERED EVIDENCE.

A post-sentence motion for a new trial on the ground of after-discovered evidence must be filed in writing promptly after such discovery.

(D) SUMMARY CASE APPEALS.

There shall be no post-sentence motion in summary case appeals following a trial de novo in the court of common pleas. The imposition of sentence immediately following a determination of guilt at the conclusion of the trial de novo shall constitute a final order for purposes of appeal.

Source: The Pennsylvania Code

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.

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.

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.

[Subnotes]

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.

Exhibit "A": Zappala, Justice, dissenting (1)

ZAPPALA files a dissenting opinion in which FLAHERTY, C.J., joins.

ZAPPALA, Justice, dissenting.

I disagree with the majority’s conclusion that an order disqualifying counsel is not immediately appealable. A defendant’s right to his chosen attorney is too important to be denied immediate review, and the defendant will be irreparably banned if a disqualification order cannot be appealed until after trial.

The majority concludes that a disqualification order does not satisfy the requirements of the collateral order exception to the general rule that only final orders are appealable. In doing so, the majority endorses the reasoning of Flanagan v. United States, 465 U.S. 259, 104 S.Ct 1051, 79 LEd.2d 288 (1984), rejects the rationale of the Superior Court’s decision in Commonwealth v. Cassidy, 390 Pa.Super. 359, 568 A.2d 693 (1989), and likens a disqualification order to rulings that are not immediately appealable, such as rulings on motions to suppress evidence.

In Flanagan, the U.S. Supreme Court held that a trial judge’s order disqualifying a criminal defendint’s counsel did not satisfy the requirements of the collateral order exception and therefore was not immediately appealable. I note that prior to Flanagan, a majority of federal appellate courts held disqualification orders to be immediately appealable. In United States v. Garcia, 517 F.2d 272, 275 (5th Cir.1975), the court explained that such orders were “separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” (emphasis added). The court also concluded that “deferral of review until after completion of the trial would dissipate judicial resources and possibly jeopardize the defendants' case by prohibiting representation at trial by counsel of their choice.” Garcia, at 275.

In United States v. Phillips, 699 F.2d 798, 802 (6th Cir.1983), the court reasoned that “[t]o require a defendant in a criminal case to stand trial and risk conviction while deprived of the services of his chosen counsel without an opportunity to test the legality of the order of disqualification is fundamentally unfair.”(emphasis added). The Phillips court went on to conclude that “[a] defendant erroneously deprived of the fundamental constitutional right to counsel of his choice should not be required to endure the rigors of trial and obloquy of conviction before establishing that error has been committed.” Phillips, at 802.

In addition, the Second, Third, Fourth, Eighth and Eleventh Circuits all considered disqualification orders immediately appealable prior to Flanagan. See United States v. Curcio, 694 F.2d 14 (2d Cir.1982) (disqualification order is immediately appealable under collateral order doctrine); US; v. Flanagan, 679 F.2d 1072, 1073 n. 1 (3d Cir.1982), rev’d, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (disqualification order is a collateral order and therefore appealable); U.S. v. Smith, 653 F.2d 126 (4th Cir.1981) entertaining appeal of pre-trial disqualification order without discussion of appealability issue); U.S. v. Agosto, 675 F.2d 965, 968 n. 1 (8th Cir.1982), cert. den. after remand and affirmance sub. nom. Gustafson v. U.S., 459 U.S. 834, 103 S.Ct. 77, 74 LEd.2d 74 (1982) (disqualification order is final order under collateral order doctrine); U.S. v. Hobson, 672 F.2d 825 826 (11th Cir.1982) (using conclusory language that disqualification orders are immediately appealable).

Because Flanagan resolved an issue of federal appellate procedure, not constitutional law, we are not bound to follow it. I would hold, as the majority of federal appellate courts held prior to Flanagan, that disqualification orders are immediately appealable. The right to counsel is of exceptional and unusual importance, for it is that right which opens the door to all of a defendant’s other rights.

[Subnote]

1. In speaking of a defendant's right to counsel of choice, I refer to a defendant's right not to be stripped of the attorney he or she has chosen, or of an attorney that has become the defendant's counsel on appointment by the court. I do not imply that the right to counsel is absolute or suggest that a defendant has an unfettered right to be represented by any attorney he or she may request.

Exhibit "A": Zappala, Justice, dissenting (2)

If a defendant is forced to suffer the loss of the benefits that a right is intended to protect, then it does not matter that, after the fact, a court is willing to reinstate that right in a technical fashion. Practically speaking, the defendant will only be able to recover those benefits that survived the erroneous denial of the right in the first place. See Bell v. Beneficial Consumer Co., 465 Pa., 225, 228, 348 A.2d 734, 735 (1975) (“a finding of finality must be the result of a practical rather than a technical construction.”)

Some of the benefits of a defendant’s right to chosen counsel were discussed in Cassidy, where the Superior Court held that an order disqualifying a defendant’s counsel was immediately appealable. The court explained that requiring a defendant to proceed to trial without counsel of choice forces the defendant to reveal his or her defense, as well as the testimony of witnesses, to the prosecution. Cassidy, 390 Pa.Super. at 366, 568 A.2d at 696. Consequently, even if the defendant is awarded a new trial due to the improper disqualification of his or her attorney, the defendant has already been permanently prejudiced. Id. Additionally, the court found it fundamentally unfair to require a defendant to proceed to trial without counsel of choice and incur the attendant counsel fees in order to vindicate on appeal the right to be represented by the attorney initially retained. Id. at 366, 568 A.2d at 696-97. The court also concluded that it could not convincingly protect a defendant’s right to counsel of choice if the defendant had to bear the anxiety of trial and the humilliation of conviction before appealing the issue. Id. at 361, 568 A.2d at 697.

The majority rejects Cassidy on the grounds that the court’s reasons for permitting immediate appeal are common to all erroneous pre-trial rulings, yet the majority of pre-trial rulings are not immediately appealable. Majority Opinion at 834. According to the majority, the Cassidy court’s concerns "have nothing to do with whether the right to counsel of choice is lost if not reviewed before judgement.” Id. at 834. To the contrary, I find that the court’s concerns are very relevant to the issue of whether the right to counsel of choice will be irreparably lost, since those concerns reflect the benefits of the right itself. As previously noted, if the benefits of a defendant’s right to his chosen counsel are lost, then in both a logical and practical respect the right itself is lost.

Moreover, there are additional consequences of forcing a defendant to wait until after judgment to appeal a disqualification order not addressed in Cassidy, Flanagan or the majority’s opinion. For example, the defendant’s chosen counsel may not be available for a second trial due to illness, relocation, or other work that prevents him or her from representing the defendant in a new trial. If this is the case, then the defendant’s right will have been irreparably lost. There is.also the possibility that a defendant may not have the financial resources to obtain the originally chosen attorney a second time. Additionally, the defendant might be hesitant to confide in the new attorney after having been stripped of his or her first attorney.

Simple reinstatement of the original attorney after trial will not repair the defendant’s lost faith in the certainty of his relationship with his attorney. See Osoba, at 151, citing Margolin & Coliver, Pretrial Disqualification of Criminal Defense Counsel, 20 Am.Crim.L.Rev. 227, 227—28 (1982). The only way to prevent such a rupture is to permit such orders to be immediately appealed.

[Subnotes]

2. In Bell, we held that an order dismissing the class aspects of a suit is a final order for the parties put out of court and is appealable even though, in theory, the named plaintiffs can individually pursue action further and the ousted members of the class can bring separate individual actions. Bell, 465 Pa. 225, 348 A.2d 734 (1975)

3. In Flannigan, jurisdiction was not challenged in the lower court. Therefore, the Court avoided a number of potential arguments regarding the issue of immediate appealability. Indeed, the Court failed to address any of the rationales that a number of circut courts had employed in concluding that disqualification orders were immediately appealable. See Wayne F. Osoba, Immediate Appealability of Orders Disqualifying a Criminal Defendant's Counsel, Univ.Ill.L.Rev. 135, 137 n. 16 (1984), citing 52 U.S.L.W. 4201, 4202 n. 2 (U.S. Feb. 21, 1984).