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COMMONWEALTH PENNSYLVANIA v. DANIEL CASSIDY (12/28/89)

decided : December 28, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL CASSIDY, APPELLANT



Appeal from the Order August 3, 1988 in the Court of Common Pleas of Philadelphia County, Criminal No. NO 8891 - 1606 MC #8805 - 3851.

COUNSEL

F. Emmett Fitzpatrick, Philadelphia, for appellant.

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

Cirillo, President Judge, and Rowley and Hester, JJ.

Author: Cirillo

[ 390 Pa. Super. Page 361]

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

[ 390 Pa. Super. Page 362]

    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. ยง 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., 465 Pa. 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

[ 390 Pa. Super. Page 363]

    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

[ 390 Pa. Super. Page 364]

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 ...


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