IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 140 WM 2018
:
Respondent :
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v. :
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BRANDON WOLOWSKI, :
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Petitioner :
CONCURRING STATEMENT
JUSTICE WECHT DECIDED: OCTOBER 11, 2018
I join the Court’s denial of Brandon Wolowski’s “Emergency Motion/Emergency
Petition for Review.”
This is a capital case. Wolowski is charged with murder in the first degree. During
pretrial proceedings, Wolowski filed a motion seeking the trial judge’s recusal. Wolowski’s
lawyer presented the motion in open court, and the trial judge denied it. Through counsel,
Wolowski then requested that the trial judge certify the order for immediate interlocutory
appeal, pursuant to 42 Pa.C.S. § 702(b). The trial judge rejected this request as well.
Wolowski filed a petition for review (which he subsequently amended) in the
Superior Court seeking review of the trial judge’s orders. The Superior Court denied the
petition by order dated July 31, 2018. Wolowski then filed the instant emergency petition
with this Court.
There is no right to an interlocutory appeal from a non-final order. The onus is on
the party seeking such an appeal to establish that: “(1) the order involves a controlling
question of law; (2) there is a substantial ground for difference of opinion regarding the
question of law; and (3) an immediate appeal would materially advance the ultimate
termination of the matter.” Commonwealth v. Dennis, 859 A.2d 1270, 1275 (Pa. 2004)
(quoting Commonwealth v. Tilley, 780 A.2d 649, 651 (Pa. 2001)). “Generally, the [trial]
court must certify that the three prongs are satisfied, and the appellate court then decides
whether to accept review.” Tilley, 780 A.2d at 651. When the trial court rejects a request
for interlocutory certification, “the accepted procedure for requesting appellate review of
an uncertified, interlocutory order is by the filing of a Petition for Review, directed to the
appellate court which would have jurisdiction if a final order were entered in the matter.”
Commonwealth v. Boyle, 532 A.2d 306, 308 (Pa. 1987) (footnote omitted).
The purpose of the petition for review is to obtain appellate review of the trial court’s
exercise of its discretion in refusing to certify the issue for appeal. Only after a petitioner
either convinces the appellate court that the trial court abused its discretion in deciding
that the three interlocutory prongs were unmet or establishes that the “case is so
egregious as to justify prerogative appellate correction of the exercise of discretion by the
lower tribunal,” Pa.R.A.P. 1311, will an appellate court proceed to review the substantive
merits of the claim underlying the appeal. Dennis, 859 A.2d at 1275.
In the petition for review sub judice, Wolowski addresses only the substantive
merits of his claim that the trial judge should have recused himself. Wolowski does not
cite, nor engage in a discussion of, the three prongs that must be established in order to
obtain an appeal by permission. He does not address the trial court’s exercise of
discretion. Nor does he cite Rule 1311 or attempt to prove that this “case is so egregious
as to justify prerogative appellate correction of the exercise of discretion by the lower
tribunal,” Pa.R.A.P. 1311. Instead, Wolowski cites only Pa.R.A.P. 1573, which concerns
appellate review of orders denying a double jeopardy claim that the trial court has
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determined to be frivolous. See Petition for Review at 3. Rule 1573 has no bearing upon
the present circumstances.
Toward the end of his petition, Wolowski provides a discussion under the following
heading: “The Petitioner’s Statement of Objections to the trial judge’s determination to
not certify this issue for immediate appeal and the Superior Court’s denial of his Petition
for Review.” Petition for Review at 14. Once more, Wolowski addresses neither the three
interlocutory appeal prongs nor Rule 1311. Rather, he focuses only upon the merits of
his underlying recusal claim, a claim which, as we made clear in Dennis, becomes
relevant only after jurisdiction is established. The substantive merit of a claim, no matter
how compelling, is no substitute for jurisdiction.
Wolowski’s failure entirely to address jurisdiction warrants this Court’s denial of his
petition. Hence, I join today’s order. I write separately to make clear that my decision to
join our order is based exclusively upon the jurisdictional impediment to our review.
Neither my joinder, nor this Court’s order, should be construed either as an endorsement
or a repudiation of the trial judge’s decision not to recuse himself. At this time, I offer no
opinion whatsoever on the merit of that substantive claim, which may be reasserted, if
appropriate, at a later juncture.
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