Com. v. Cassidy

• Decision Date: 28 December 1989
• Citation: 568 A.2d 693,390 Pa.Super. 359
• Parties: COMMONWEALTH of Pennsylvania v. Daniel CASSIDY, Appellant.
• Court: Pennsylvania Superior Court

Page 693

568 A.2d 693

390 Pa.Super. 359

COMMONWEALTH of Pennsylvania v. Daniel CASSIDY, Appellant.

Superior Court of Pennsylvania.

Argued May 17, 1989.

Decided Dec. 28, 1989.

F. Emmett Fitzpatrick, Philadelphia, for appellant.

Ann C. Lebowitz, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and ROWLEY and HESTER, JJ.

CIRILLO, President Judge:

Following a grand jury investigation, appellant Daniel Cassidy and six co-defendants were charged with several offenses involving alleged racketeering activity by members of the Philadelphia Police Department Narcotics Unit. Attorney F. Emmett Fitzpatrick represented Police Officer Leo Ryan in a federal court prosecution in 1987, and was retained by appellant Daniel Cassidy as well. Following his conviction, Ryan began to cooperate with the government and with the Commonwealth. As a result of a perceived conflict of interest, the Commonwealth filed a pre-trial motion to disqualify attorney Fitzpatrick as Cassidy's trial counsel. The motions court of the Court of Common Pleas of Philadelphia granted the Commonwealth's motion. Cassidy appealed this pre-trial order. The Commonwealth then filed a motion to quash the appeal as interlocutory. A single motions judge of the Pennsylvania Superior Court denied the motion to quash. Before us now is the question of whether this pre-trial order is appealable.

A. Appealability of the Order

Section 742 of the Judicial Code confers exclusive appellate jurisdiction on this court of all appeals from final orders of the courts of common pleas. See 42 Pa.C.S. § 742 (1981). Applying the strict definition of the term "final order," it is abundantly clear that the order disqualifying attorney Fitzpatrick is not a final order; it does not end the litigation nor dispose of the entire case. See Commonwealth v. Wise, 328 Pa.Super. 491, 493, 477 A.2d 552, 553 (1984) (final order is one which ends the litigation or disposes of the entire case). This determination, however, does not end our inquiry.

In Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), our supreme court recognized that the finality and appealability of an order cannot "necessarily be ascertained from the face of the decree alone, nor simply from the technical effect of the adjudication." Id. at 228, 348 A.2d at 735. Confronted with this conclusion, the supreme court adopted the approach utilized by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), for determining what constitutes a final order. This approach entails looking to the practical rather than the technical construction of an order. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978).

Pursuant to the Cohen approach, an order that appears interlocutory on its face is considered final and 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 lost. Cohen, 337 U.S. at 546, 69 S.Ct. at 1225. This three-part test was used by our supreme court in Pugar v. Greco, supra, and more recently in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). In addition, it was applied by this court in Commonwealth v. Bonaparte, 366 Pa.Super. 182, 530 A.2d 1351 (1987).

We find that the order at issue in this case fulfills the requirements of the Cohen test. The first factor of the test is easily met; the order disqualifying Cassidy's counsel is clearly separable from and collateral to the main cause of action. In addition, because the right to counsel of one's choice, while not an absolute right, is one guarded by the sixth amendment of the United States Constitution, see Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (sixth amendment provides right to select counsel of one's choice); Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959) (defendant has the constitutional right to choose at his or her own cost and expense any lawyer he or she desires); Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981) (criminal defendants have the constitutional right to choose at their own cost and expense any counsel they desire), there is no question that the right involved here is too important to be denied review. Thus, the second fact is also present.

The only remaining factor of the test to be met is the third one, namely, that the claimed right will be irreparably lost if review is postponed until final judgment is entered. In Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), the United States Supreme Court held that a criminal defendant's right to counsel is not irreparably lost if review of an order denying that right is postponed until the defendant is convicted and sentenced. As a state court, however, we are not bound to follow this holding. Our supreme court was free to ignore, reject, or adopt the Cohen test when it was created by the United States Supreme Court; we are equally free to reject the Supreme Court's method of applying that test to a specific situation.

The criminal defendant's right to counsel of choice, as expressed in the sixth amendment of the United States Constitution and in article 1, section 9, of the Pennsylvania Constitution, cannot be effectively protected in our Commonwealth if we postpone review of orders disqualifying a criminal defendant's counsel of choice until the defendant has been found guilty and sentenced. ¹

Criminal defendants are given numerous rights under our state constitution: the right to counsel; the right to know the charges filed against them; the right to face the witnesses testifying against them; the right to subpoena individuals to testify in their defense; the right to a speedy trial; the right against self-incrimination; and the right to trial by jury. See Pa. Const. art. 1, § 9 (Supp.1989). Of all of these rights, the right to counsel is arguably the most important. It is the key which opens the door to all of a defendant's other rights. See Genego, Prosecutorial Control Over a Defendant's Choice of Counsel, 27 Santa Clara L.Rev. 17, 26 (1987) (while other rights are integral to the proper functioning of the adversary process, only the right to counsel enables defendants to assert their other rights). The right to counsel also provides the defendant with the means to develop and present his or her defense. A defendant may have exculpatory information, but, without any knowledge of the law or the skill to present that evidence to the jury, the defendant may not go free. With the aid of one trained in the law, however, the defendant has the means to utilize this information in the light most advantageous to his or her defense. As the United States Supreme Court cogently stated in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932):

Even the intelligent and educated layman has small and sometimes no skill in the science of law ... He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he may be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Id. at 69, 53 S.Ct. at 64.

The extent to which the right to counsel benefits a defendant, however, is greatly dependent upon the skill and ability of the particular counsel retained by the defendant. Certainly, none of us would disagree that all attorneys do not have the same ability to protect a defendant's rights, or to develop and present a defense. See United States v. Laura, 607 F.2d 52, 56 (3d Cir.1979) ("We would reject reality if we were to suggest that all lawyers are a homogeneous group."). Some attorneys are more intelligent than others; some have greater legal experience than others. Some attorneys exude more charisma before a jury than others.

The selection of an attorney is one of the most important decisions, if not the most important decision, made by a defendant in shaping a defense and in attempting to secure his or her release. Id. at 55. Thus, in our judgment a criminal defendant's right to select counsel of his or her choice cannot be effectively protected if we delay review of orders denying that right until final judgment. ² By forcing a defendant to proceed to trial without counsel of choice, we are forcing that defendant to reveal his or her defense, as well as the testimony of witnesses, to the Commonwealth. 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.

Furthermore, while a defendant may be required to bear the cost of a defense in our system of justice, it is fundamentally unfair to force a defendant to proceed to trial without counsel of choice and expend countless dollars in counsel fees, only to be forced to appeal to secure the right to be represented by the attorney initially retained. If awarded a new trial on appeal, the defendant may no longer possess sufficient funds to finance the representation originally desired. See Comment, Immediate Appealability of Orders Disqualifying a Criminal Defendant's Counsel, Univ.Ill.L.Rev. 135, 150 (1984) (hereinafter "Comment") (even if a pretrial order disqualifying defense counsel is overturned on appeal, the defendant's financial situation may eliminate the possibility that his or her originally chosen counsel will represent the defendant in the new trial). In this situation, a defendant has been effectively denied the right to counsel of choice guaranteed by our state constitution.

Moreover, we cannot convincingly protect a defendant's right to counsel of choice when we...