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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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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