J-S65023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

STANLEY FOSTER BOWERSOX, III,

                        Appellant                   No. 158 WDA 2016


            Appeal from the Order Entered December 18, 2015
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0002503-2012


BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                      FILED NOVEMBER 28, 2016

     Appellant, Stanley Foster Bowersox, III, appeals from the order

entered on December 18, 2015, which denied Appellant’s motion for a

change of appointed counsel. We quash this appeal.

     Following a bench trial on May 15, 2013, Appellant was found guilty of

a multitude of crimes, including aggravated assault, criminal conspiracy, and

robbery. On June 24, 2013, the trial court sentenced Appellant to serve an

aggregate term of 13 ½ to 27 years in prison for his convictions, to be

followed by a term of ten years of probation.    On January 30, 2015, this

Court affirmed Appellant’s judgment of sentence and, on June 30, 2015, the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal.   Commonwealth v. Bowersox, 118 A.3d 459 (Pa. Super. 2015)




*Retired Senior Judge assigned to the Superior Court.
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(unpublished memorandum) at 1-11, appeal denied, 117 A.3d 1280 (Pa.

2015).

       On November 12, 2015, Appellant filed a timely, pro se petition under

the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.      On

November 17, 2015, the PCRA court appointed William J. Hathaway, Esquire

(hereinafter “Attorney Hathaway”) as counsel to represent Appellant in the

post-conviction proceedings; the PCRA court’s order declared that Attorney

Hathaway had 60 days to file an amended PCRA petition. PCRA Court Order,

11/17/15, at 1.

       On December 18, 2015 – which was prior to the expiration of the 60

days provided to Attorney Hathaway – Appellant filed a pro se “Motion for

Change of Appointed Counsel” in the PCRA court. Within Appellant’s motion,

Appellant claimed:

         Attorney Hathaway has failed to communicate with
         [Appellant],    failed    to   respond     to   [Appellant’s]
         correspondence[, and failed] to accept any of [Appellant’s]
         pre-paid telephone calls. . . .      Furthermore, based on
         information and belief, Attorney Hathaway is presently
         representing a host of other clients in the context of court-
         appointed PCRA/appeal counsel, and unable to dedicate the
         time, energy[,] and resources which are essential to provide
         [Appellant] with effective representation.

Appellant’s Motion for Change of Appointed Counsel, 12/18/15, at 1-2.1
____________________________________________


1
 We note that, on January 13, 2016, Attorney Hathaway filed an amended
PCRA petition and, within the amended petition, Attorney Hathaway raised a
number of ineffective assistance of trial counsel claims. See Appellant’s
Amended PCRA Petition, 1/13/16, at 1-5.



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      Appellant requested that the PCRA court “enter an order permitting

Attorney Hathaway to withdraw his appearance in this matter and appointing

new counsel to represent him.” Id. at 3.

      The PCRA court denied Appellant’s motion on December 21, 2015 and

Appellant filed a notice of appeal from that order. We now quash Appellant’s

appeal.

      As we have explained, prior to reaching the merits of any appeal, this

Court must “first ascertain whether the [order appealed from] is properly

appealable.” Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super.

1997).    Indeed, since “the question of appealability implicates the

jurisdiction of this Court[, the issue] may be raised by [this] Court sua

sponte.” Commonwealth v. Baio, 898 A.2d 1095, 1098 (Pa. Super. 2006).

      Generally, this Court’s jurisdiction “extends only to review of final

orders.” Rae v. Pa. Funeral Dir’s Ass’n, 977 A.2d 1121, 1124-1125 (Pa.

2009); 42 Pa.C.S.A. § 742; Pa.R.A.P. 341(a). A final order is defined as any

order that: “(1) disposes of all claims and of all parties; [] (2) is explicitly

defined as a final order by statute; or (3) is entered as a final order pursuant

to [Pennsylvania Rule of Appellate Procedure 341(c)].” Pa.R.A.P. 341(b).

      The PCRA court’s December 21, 2015 order – denying Appellant’s

Motion for Change of Appointed Counsel – does not fall under any of the

three definitions of a “final order.”      Therefore, since the order is not

appealable under Rule 341, the order is non-final and interlocutory.




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     Interlocutory orders are appealable in certain circumstances. As our

Supreme Court has explained:

        in addition to an appeal from final orders of the Court of
        Common Pleas, our rules provide the Superior Court with
        jurisdiction in the following situations: interlocutory appeals
        that may be taken as of right, Pa.R.A.P. 311; interlocutory
        appeals that may be taken by permission, Pa.R.A.P. [312];
        appeals that may be taken from a collateral order, Pa.R.A.P.
        313; and appeals that may be taken from certain
        distribution orders by the Orphans’ Court Division, Pa.R.A.P.
        342.

Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (internal

quotations omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d

345, 349 n.6 (Pa. 2002).

     Here, the PCRA court’s December 21, 2015 order is not appealable as

of right (per Pa.R.A.P. 311) and neither party asked for or received

permission to appeal the December 21, 2015 order (per Pa.R.A.P. 312).

Thus, the question before this Court is whether the order is appealable under

the collateral order doctrine. See Pa.R.A.P. 313.

     Pennsylvania Rule of Appellate Procedure 313 defines a collateral order

as one that:   “1) is separable from and collateral to the main cause of

action; 2) involves a right too important to be denied review; and 3)

presents a question that, if review is postponed until final judgment in the

case, the claim will be irreparably lost.” In re Bridgeport Fire Litigation,

51 A.3d 224, 230 n.8 (Pa. Super. 2012); Pa.R.A.P. 313(b).          An order is

“separable from and collateral to the main cause of action” if the order “is



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entirely distinct from the underlying issue in the case and if it can be

resolved without an analysis of the merits of the underlying dispute.” K.C.

v. L.A., 128 A.3d 774, 778 (Pa. 2015) (internal quotations omitted), citing

Commonwealth v. Blystone, 119 A.3d 306, 312 (Pa. 2015). Further, with

respect to the “separability” prong of the test, our Supreme Court has

explained that, “although [the Supreme Court will] tolerate a degree of

interrelatedness between merits issues and the question sought to be raised

in the interlocutory appeal, the claim must nevertheless be conceptually

distinct from the merits of plaintiff’s claim.”   Blystone, 119 A.3d at 312

(internal quotations and citations omitted).

      Our Supreme Court has also emphasized:

        the collateral order doctrine is a specialized, practical
        [exception to] the general rule that only final orders are
        appealable as of right. Thus, Rule 313 must be interpreted
        narrowly, and the requirements for an appealable collateral
        order remain stringent in order to prevent undue corrosion
        of the final order rule. To that end, each prong of the
        collateral order doctrine must be clearly present before an
        order may be considered collateral.

Melvin v. Doe, 836 A.2d 42, 46-47 (Pa. 2003) (internal citations omitted).

      Our Supreme Court has held that “an order denying a request to

withdraw as [PCRA] counsel based on an alleged conflict of interest” is not

appealable under the collateral order doctrine. Commonwealth v. Wells,

719 A.2d 729 (Pa. 1998). As the Wells Court explained:

        Appellant's claim that he is entitled to “conflict-free” PCRA
        counsel will not be irreparably lost if the order denying the
        Petition to Withdraw is not reviewed at this time. Since


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        Appellant has a right of appeal if the PCRA court denies his
        petition, the order denying the Petition to Withdraw, and
        consequently the merits of the conflict issue, can be
        reviewed if or when Appellant files an appeal from the
        court's PCRA decision. If it is determined that the PCRA
        court improperly failed to remove PCRA counsel due to a
        conflict of interest, any right to conflict-free PCRA counsel is
        not lost since the defendant may be granted a new PCRA
        hearing and new counsel. Thus, since Appellant's claimed
        right would not be irreparably lost if review of the order
        were postponed until final judgment, the court's order
        denying the Petition to Withdraw is not appealable under
        the collateral order doctrine.

        Moreover, [the final order rule] . . . in criminal cases []
        serves to promote the compelling interest in prompt trials
        by avoiding the disruption of cases generated by piecemeal
        appellate review. . . . This interest in preventing undue
        delay in criminal proceedings is not lost once an appeal
        enters the PCRA stage. Moreover, the language of the
        PCRA itself reflects the legislature's concern with the effect
        delay may have on a meritorious review of a PCRA petition.
        See 42 Pa.C.S.A. § 9543(b) (PCRA petition will be
        dismissed     if   delay   in    filing   petition prejudices
        Commonwealth's ability to respond to petition or retry
        petitioner in the event a new trial is granted).

Wells, 719 A.2d at 731 (internal footnotes omitted).

     The reasoning of Wells applies with greater force to the case at bar,

given that Appellant’s premature allegations of ineffective assistance of

counsel are not yet ripe – and, if they ever come to fruition, the allegations

can be reviewed at a later date. See Commonwealth v. Haag, 809 A.2d

271, 282-283 (Pa. 2002) (a PCRA petitioner has a rule-based right to

effective assistance of PCRA counsel); Commonwealth v. Rigg, 84 A.3d

1080, 1085 (Pa. Super. 2014) (“where the new issue is one concerning PCRA

counsel's representation, a petitioner can preserve the issue by including


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that claim in his [Pa.R.Crim.P.] 907 response or raising the issue while the

PCRA court retains jurisdiction”); see also In re N.B., 817 A.2d 530 (Pa.

Super. 2003) (denial of mother’s motion to change appointed counsel in a

dependency proceeding was not appealable under the collateral order

doctrine); Commonwealth v. Johnson, 705 A.2d 830 (Pa. 1998) (order

disqualifying a criminal defendant’s counsel of choice was not appealable

under the collateral order doctrine).

      Therefore, in accordance with Wells, we conclude that the order

denying Appellant’s Motion for Change of Appointed Counsel does not

constitute a collateral order, as it does not “present[] a question that, if

review is postponed until final judgment in the case, the claim will be

irreparably lost.” In re Bridgeport Fire Litigation, 51 A.3d at 230 n.8.

      Further, given that Appellant’s motion centers upon the claim that his

current counsel is ineffective – and given that the current appeal centers

upon the claim that the PCRA court erred in denying his motion on the

merits – we conclude that the current appeal fails the “separability” prong of

the collateral order test, as any inquiry into counsel’s effectiveness would

require “an analysis of the merits of the underlying dispute.” Blystone, 119

A.3d at 312.    To be sure, for this Court to render a determination on

whether Appellant’s counsel is ineffective, we would be required to analyze

the merits of Appellant’s PCRA petition. Under the collateral order doctrine,

this type of merits review is simply impermissible. Id.




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     Appellant’s current appeal thus fails the first and third prongs of the

collateral order test.    The trial court’s December 12, 2015 order is,

therefore, not appealable. We quash this appeal.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2016




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