Com. v. Meletiche, G.

J-A09022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEORGE MELETICHE,
Appellant No. 875 MDA 2016
Appeal from the Order Entered April 29, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004403-2015
BEFORE: SHOGAN, OTT, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 28, 2017
Appellant, George Meletiche, appeals form the order denying his
motion to disqualify John T. Adams, District Attorney for Berks County, and
the entire Berks County District Attorney’s (“D.A.’s”) office from his
prosecution. After careful review, we are constrained to quash this appeal.
Appellant was charged with the offenses of corrupt organizations,1
possession with intent to deliver controlled substances 2 and multiple related
offenses,3 including criminal conspiracy to commit the foregoing. Appellant
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1
18 Pa.C.S. § 911(b)(1).
2
35 P.S. 780-113(a)(30).
3
The criminal information included 108 counts. Information, 9/18/15, at 1-
15.
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subsequently filed a motion seeking the disqualification of District Attorney
John T. Adams and his entire staff. Appellant’s Pre-Trial Motion to Disqualify
Berks County District Attorney’s Office, 3/2/16, at 1-2.
Following a hearing, the trial court issued an order on April 29, 2016,
denying Appellant’s motion. Appellant filed a notice of appeal from this
order as a collateral order pursuant to Pa.R.A.P. 313, on May 26, 2016. On
May 27, 2016, the trial court issued an order denying Appellant’s application
for certification of an interlocutory appeal by permission. The trial court and
Appellant complied with Pa.R.A.P. 1925.
On June 13, 2016, this Court issued to Appellant a rule to show cause
how the appeal satisfies the requirements of Pa.R.A.P. 313. Appellant filed a
response. This Court filed an order on July 7, 2016, discharging the rule to
show cause and deferring the issue to the merits panel.
On appeal, Appellant presents the following issues:
a) Whether John T. Adams, the current Berks County District
attorney, should be disqualified from prosecuting [Appellant], his
former client, pursuant to Pa.R.P.C. 1.9, entitled Duties to
Former Clients, which declares: “A lawyer who has formerly
represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in
which that person’s interests are materially adverse to the
interests of the former client . . . .”. ([Appellant’s] prior case
included a felony gun charge, as does the instant matter.)
b) Whether the Office of the District Attorney, headed by John T.
Adams, the current Berks County District attorney, should be
disqualified from prosecuting [Appellant] his former client,
pursuant to Pa.R.P.C. 1.9, entitled Duties to Former Clients,
which declares: “A lawyer who has formerly represented a client
in a matter shall not thereafter represent another person in the
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same or a substantially related matter in which that person’s
interests are materially adverse to the interests of the former
client . . . .” ([Appellant’s] prior case included a felony gun
charge, as does the instant matter.)
c) Whether John T. Adams, the current Berks County District
attorney, and his Office [should] be conflicted out of the
prosecution of former client, [Appellant], should said criminal
case be referred to the Office of the Attorney General?
Appellant’s Brief at 4 (emphasis in original).
Before addressing the merits of Appellant’s claims, we must first
consider whether this appeal is properly before us.
With limited exceptions, Pennsylvania law permits only appeals
from final orders. See Pa.R.A.P. 341 (“An appeal may be taken
as of right from any final order.”). Final orders are those that
dispose of all claims and all parties, are explicitly defined as final
orders by statute, or are certified as final orders by the trial
court or other reviewing body. However, Pennsylvania Rule of
Appellate Procedure 313(b) permits a party to take an
immediate appeal as of right from an otherwise unappealable
interlocutory order if the order meets three requirements: (1)
the order must be separable from, and collateral to, the main
cause of action; (2) the right involved must be too important to
be denied review; and (3) the question presented must be such
that if review is postponed until after final judgment, the claim
will be irreparably lost. Pa.R.A.P. 313(b). All three prongs of
Rule 313(b) must be met before an order may be subject to a
collateral appeal; otherwise, the appellate court lacks jurisdiction
over the appeal.
Commonwealth v. Sabula, 46 A.3d 1287, 1291 (Pa. Super. 2012)
(quoting Commonwealth v. Harris, 32 A.3d 243, 248 (Pa. 2011)). We
have described the third requirement for qualification as a collateral order as
follows:
To satisfy this element, an issue must actually be lost if review is
postponed. Orders that make a trial inconvenient for one party
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or introduce potential inefficiencies, including post-trial appeals
of orders and subsequent retrials, are not considered as
irreparably lost. An interest or issue must actually disappear
due to the processes of trial.
Sabula, 46 A.3d at 1293. Additionally, “we construe the collateral order
doctrine narrowly. In adopting a narrow construction, we endeavor to avoid
piecemeal determinations and the consequent protraction of litigation.” Id.
at 1291.
We cannot agree with Appellant’s assertion that the April 29, 2016
order denying Appellant’s motion to disqualify John T. Adams and the Berks
County District Attorney’s Office constitutes a collateral order. Specifically,
the order fails to meet the third prong of the definition of a collateral order
pursuant to Pa.R.A.P. 313. Appellant’s claim that Attorney John T. Adams
and/or the Berks County District Attorney’s Office should be disqualified due
to Adams’s previous representation of Appellant will not be irreparably lost if
not immediately reviewed as a collateral order. Should judgment of
sentence be entered against Appellant, the question of Adams’s and the
D.A.’s office’s disqualification could then be considered, and if required, a
new trial could be ordered. See Commonwealth v. Smith, 835 A.2d 399(Pa. Super. 2003)(the trial court denied the appellant’s pretrial motion to
disqualify the District Attorney’s office from prosecuting his case; this Court
reviewed the trial court’s ruling on the pretrial motion on appeal following
trial and the entry of judgment of sentence against the appellant); see also
Commonwealth v. Breighner, 684 A.2d 143 (Pa. Super. 1996) (en banc)
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(where this Court found conflict on part of prosecution on appeal following
trial and entry of judgment of sentence, and the appellant had filed a pre-
trial motion to disqualify prosecutor, judgment of sentence was vacated and
the matter was remanded so that it could be referred to the Attorney
General for retrial). The fact that this process may be inconvenient, or
introduce potential inefficiencies does not result in the issue being
irreparably lost. Sabula, 46 A.3d at 1292.
Moreover, “[t]his Court has held that orders denying a motion for
recusal are not collateral and, therefore, are not immediately appealable.”
Commonwealth v. Stevenson, 829 A.2d 701, 704 (Pa. Super. 2003)
(quoting Krieg v. Krieg, 743 A.2d 509 (Pa. Super. 1999); Kenis v. Perini
Corporation, 682 A.2d 845 (Pa. Super. 1996)). Cf. Stevenson, 829 A.2d
at 704 (order denying Commonwealth’s motion for recusal is appealable
under Pa.R.A.P. 313 because the Commonwealth would be precluded on
double jeopardy grounds from seeking review of its motion for recusal if the
defendant was acquitted). Here, Appellant will not be divested of his appeal
rights if he is convicted, and therefore his claim will not be irreparably lost.
Smith, 835 A.2d at 401; Breighner, 684 A.2d at 143.
We conclude that the April 29, 2016 order is interlocutory and not a
collateral order that is immediately appealable. Thus, we are constrained to
quash this appeal.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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