Com. v. Mayfield, D.

J-S26026-19

2019 PA Super 356

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DEMETRIUS MAYFIELD :
:
Appellee : No. 2811 EDA 2018

Appeal from the Order Dated September 19, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006367-2016

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

OPINION BY GANTMAN, P.J.E.: FILED DECEMBER 16, 2019

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which removed

the Office of the Philadelphia District Attorney (“DA”) and appointed a special

prosecutor, in this revocation of probation case. For the following reasons,

we transfer the appeal to the Supreme Court of Pennsylvania.

The relevant facts and procedural history of this case are as follows. On

June 15, 2016, police executed a search warrant at a suspected drug house

in Philadelphia. During the search, police located Appellee, Demetrius

Mayfield, sleeping in a bedroom. Police recovered a handgun from the

bedroom. On May 15, 2018, Appellee entered a negotiated guilty plea to one

count of persons not to possess firearms.1 The court accepted Appellee’s plea

____________________________________________

1 18 Pa.C.S.A. § 6105.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26026-19

as knowing, intelligent, and voluntary, and imposed the negotiated sentence

of 11½ to 23 months’ imprisonment, plus three years’ probation. The court

awarded Appellee credit for time served and released him on immediate parole

with the following conditions: seek and maintain legitimate employment,

attend vocational training and parenting classes, submit to random

drug/alcohol screens and home and vehicle checks for drugs and weapons,

and stay away from the 5300 block of Lesher Street and any co-defendant(s).

The court said the plea deal was “very generous” and cautioned Appellee “not

[to] come back….” (N.T. Guilty Plea Hearing, 5/15/18, at 17; R.R. at 30a).

On July 9, 2018, while Appellee was on parole, police approached a

vehicle parked in the wrong direction on a one-way street. Appellee was in

the driver’s seat with a male passenger. Officers conducted a search of the

vehicle and found drugs and two guns. The Commonwealth subsequently

charged Appellee at docket No. CP-51-CR-0006274-2018, with various drug

and firearms offenses (“new charges”).

The Adult Probation and Parole Department (“Department”) issued a

Gagnon I summary2 on July 11, 2018, that stated Appellee’s new charges

____________________________________________

2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
See also Commonwealth v. Ferguson, 761 A.2d 613 (Pa.Super. 2000)
(explaining that when parolee or probationer is detained pending revocation
hearing, due process requires determination at pre-revocation hearing
(Gagnon I hearing) of probable cause to believe violation was committed;
upon finding of probable cause, second, more comprehensive hearing
(Gagnon II hearing) follows before court makes final revocation decision).

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constituted the only “potential direct violations” of his parole/probation and

recommended a detainer. The Department issued a Gagnon II summary on

July 26, 2018, expressly asking the trial court to wait until final disposition of

the new charges before proceeding with a revocation hearing, with the

detainer to remain. On August 2, 2018, the court appointed defense counsel

and scheduled a “status of counsel” conference for August 31, 2018.

The parties appeared before the court on August 31, 2018. Although

the court listed the proceeding as a “status of counsel” conference, the court

immediately directed the Commonwealth to file a motion to revoke Appellee’s

parole/probation, based on Appellee’s new charges, and to subpoena the

police officers involved with the new charges for a revocation hearing. The

Assistant District Attorney (“ADA”) informed the court a new internal policy

required approval from a supervisor to file a motion for revocation prior to

disposition of new charges. The ADA said she would subpoena the police

officers to comply with the court’s directive but confirmed she did not have

the authority to file the revocation motion when the new charges were still

pending. Notwithstanding the ADA’s representations, the court directed her

to file the motion and emphasized the “extremely generous” plea deal Appellee

had received for “an extremely serious pistol whipping.” (N.T. Hearing,

8/31/18, at 4-5; R.R. at 35a-36a). The ADA informed the court Appellee’s

case did not involve a “pistol whipping.” The court conceded its error but still

demanded the ADA to prepare for a revocation hearing on September 19,

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2018. Regarding the revocation hearing, the court made clear it wanted to

“knock this one out.” (Id. at 4; R.R. at 35a).

The parties appeared before the court again on September 6, 2018, at

the Commonwealth’s request. A different ADA represented the

Commonwealth and attempted to clarify the recent policy requiring the ADA

to seek approval to file a revocation motion before disposition of new charges.

The ADA said his superior, the First Assistant of the DA’s office, had denied

the request in this case. The ADA explained prosecutorial discretion lies with

the DA, not the court, to determine whether to proceed immediately to a

revocation hearing or to defer revocation until disposition of the new charges.

The court responded: “The underlying facts of this case were horrendous” and

Appellee’s negotiated sentence was “well below any guidelines that were

applicable.” (N.T. Hearing, 9/6/18, at 6; R.R. at 40a). The court emphasized

the new charges were “very serious, very serious accusations and potentially

very significant violations of [the court’s] order of sentence.” (Id. at 11-12;

R.R. at 41a). The court also said it had the authority to grant or deny a

request to defer a revocation proceeding pending disposition of new charges

and would not wait until disposition of the new charges in this case. The court

further stated it could decide whether Appellee had violated the terms of his

parole/probation “independent of whether or not the Commonwealth decides

to do [its] job.” (Id. at 13; R.R. at 42a). Notwithstanding the ADA’s requests

to continue the revocation matter, pending disposition of the new charges, the

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court ordered the ADA to subpoena the police officers involved with Appellee’s

new charges and to appear for the revocation proceeding as scheduled for

September 19, 2018.

On September 19, 2018, the parties appeared for the scheduled

revocation hearing. Defense counsel objected to going forward with the

revocation hearing mainly because: (1) the Commonwealth did not file a

request for revocation per Pa.R.Crim.P. 708 (requiring written request for

revocation to be filed with clerk of courts), and the Department, defense

counsel, and ADA agreed to defer the revocation proceeding until disposition

of the new charges; (2) the court acted as an advocate for the Commonwealth

instead of a neutral fact-finder; (3) the court improperly directed the

Commonwealth to file a revocation motion and subpoena police officers, over

the Commonwealth’s objections; (4) defense counsel had not yet received the

transcript for the preliminary hearing related to the new charges, so counsel

would be unable to represent Appellee effectively at the revocation hearing;

(5) Appellee retained private counsel to represent him concerning the new

charges and wanted private counsel to represent him in the revocation

proceedings as well; and (6) Appellee’s co-defendant related to the new

charges told police the guns and drugs belonged to him, but defense counsel

would not be able to call the co-defendant as a witness in the revocation

proceedings while an open case was still pending against the co-defendant,

due to Fifth Amendment concerns.

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In response, the court indicated its order, directing the ADA to subpoena

police officers and scheduling a revocation hearing, constituted sufficient

written notice under Rule 708. The court also noted the different burden of

proof at a trial on Appellee’s new charges versus the lower burden of proof at

a revocation hearing. The court further emphasized Appellee’s right under

Rule 708 to a revocation hearing held “as speedily as possible.” Appellee

expressly waived his right to a speedy revocation hearing, but the court told

the Commonwealth to call its first witness concerning revocation. The hearing

continued as follows:

[THE COMMONWEALTH]: Your Honor, despite my personal
views and the propriety of this proceeding, I’m under very
strict instructions from people who probably should be here
themselves not to participate in this hearing.

[THE COURT]: When were you folks going to let
me know that?

[THE COMMONWEALTH]: I apologize, your Honor. I
thought that was the understanding.

[THE COURT]: Are you saying to me that the
Commonwealth of Pennsylvania is not going to be
represented by the District Attorney’s Office of Philadelphia
in this matter?

[THE COMMONWEALTH]: The police officers are here,
your Honor.

[THE COURT]: No. No. No. Listen to my
question, [counsel].

Are you saying that the Commonwealth of Pennsylvania is
not going to be represented by the District Attorney’s Office
of Philadelphia at this revocation hearing; yes or no?

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[THE COMMONWEALTH]: If I understand the question
correctly, I believe that the answer would be no because—

[THE COURT]: Thank you. Have a seat.

I’m appointing a special prosecutor to represent the
Commonwealth of Pennsylvania…. … The District Attorney’s
Office has removed itself.

* * *

Let the record reflect that the District Attorney’s [Office] of
Philadelphia has withdrawn its representation from the
Commonwealth of Pennsylvania at the revocation hearing
on this matter.

(N.T. Hearing, 9/19/18, at 46-48; R.R. at 56a). Immediately following the

hearing, the Commonwealth filed a motion to reconsider in the trial court and

a notice of appeal in this Court.

The next day, the parties (including the court-appointed special

prosecutor) appeared before the court. The Assistant Supervisor of the law

division in the DA’s office appeared to clarify that the DA’s office had not

“removed itself” from the proceedings but was exercising prosecutorial

discretion to defer revocation until disposition of Appellee’s new charges. The

court informed the Commonwealth that deferring the revocation proceeding

would infringe on Appellee’s right to a speedy revocation hearing. Defense

counsel reminded the court that Appellee had waived his right to a speedy

revocation hearing. The hearing continued as follows:

[THE COURT]: I understand that [Appellee
waived his right to a speedy revocation hearing]. And this
court has a duty to proceed. And I can grant or deny the
request to continue the case. This court’s authority is what

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J-S26026-19

is at issue. Whether or not [Appellee] disobeyed the order
of sentence in any way, shape or form or the terms of
supervision therein. In this particular case, sir, it is my
discretion to go forward. I have that discretion under the
case law as I understand it.

* * *

Now, I do not need to wait for the disposition of his open
case to make a fair determination as to what occurred there
because that matter also had been held for court. A prima
facie case has been demonstrated. So there is sufficient
reason, number one, for detention. Number two, to proceed
with a hearing. And I am not going to have you or anybody
else from the District Attorney’s Office sit there and think
that because you refuse to do your job and represent the
interests of the Commonwealth of Pennsylvania, which it
includes public safety. I’m going to do my job, sir.

So since you have told me that you are not going to
represent the Commonwealth of Pennsylvania at a
revocation hearing that will be held in due course, sir; and
I am not waiting for his open case to be resolved, I have to
replace you with somebody else. Actually I’m not replacing.
I’m putting someone in there since you are not going to do
it.

So you may step back. Your petition for reconsideration is
denied.

[THE COMMONWEALTH]: Your Honor, can I make our
position clear for the record?

[THE COURT]: You did. You did. And so did
[the other two ADAs]. Given the position of this office not
to go forward in the matter as it should, you left the [ADA]
standing before me without the ability to explain. That’s not
proper. That is disrespectful to him. Disrespectful to me
and duly noted, sir.

What else do you want to tell me?

[THE COMMONWEALTH]: Just that we filed a notice of
appeal under this court’s order yesterday with the Superior

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Court which in due course to this court will receive a copy
of our notice of appeal.

[THE COURT]: Okay.

[THE COMMONWEALTH]: And I just reiterate the grounds
stated in the petition. Particularly emphasizing that the
Supreme Court of this state has said that the preferred
method of dealing with situations like this is to wait until the
resolution of the open matter.

[THE COURT]: Sir, the preferred method is to do
justice and have parties on both sides representing their
appropriate interests appropriately.

[THE COMMONWEALTH]: Which we will do. Which we will
do.

[THE COURT]: No. No. There have been many
cases similarly situated where the Commonwealth not only
sought to go forward. Insisted appropriately, sir.
Appropriately. But now in people similarly situated, we’re
not going forward for whatever reason since no reason was
given to this court.

Sir, the preferred method is to have the Commonwealth
represented by due representation.

[THE COMMONWEALTH]: Which will occur.

[THE COURT]: I’m not seeing it here.

[THE COMMONWEALTH]: Which will occur in the event of
this person being convicted of the crimes that he’s presently
accused.

[THE COURT]: Well, since the Commonwealth is
refusing to represent the Commonwealth—since the [DA’s]
Office rather of Philadelphia is refusing to represent the
Commonwealth of Pennsylvania in this revocation that will
occur within the next two weeks, sir, I have to put somebody
there to represent the interests of the Commonwealth of
Pennsylvania. And I am extremely, extremely saddened to
have to be the person who has to put someone in there to

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represent the interests of the Commonwealth which includes
the people of this city and their right to be safe.

You’re excused.

Now, give [the special prosecutor] the discovery as I
directed.

[DEFENSE COUNSEL]: Your Honor, just for the record,
please note my objection to the appointing of a special
prosecutor. I’m not sure what authority the court has to
appoint a—

[THE COURT]: Somebody has to do.

[DEFENSE COUNSEL]: —defense attorney as a special
prosecutor. I hope his malpractice insurance covers
prosecution.

[THE COURT]: It’s a court appointment.

[DEFENSE COUNSEL]: I understand. That doesn’t mean
you can appoint anyone to anything.

[THE COURT]: Actually, sir, I’m well within my
authority to appoint someone on behalf of the
Commonwealth of Pennsylvania since there is nobody in
that chair that’s going to represent the Commonwealth of
Pennsylvania otherwise.

[DEFENSE COUNSEL]: Judge, unless I’m
misunderstanding, the Commonwealth is representing this
case. They are choosing not to proceed with the revocation
hearing at this point, which the docket—

[THE COURT]: It’s not their choice to make. I
decided that the revocation hearing to determine whether
or not [Appellee] violated the orders of sentence is well
within my authority to do so, sir. And I refer you to the case
law that says exactly that.

[DEFENSE COUNSEL]: I understand, Judge. Just note
my objection for the record.

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[THE COURT]: Got it.

[DEFENSE COUNSEL]: I don’t think the court has the
authority to appoint a special prosecutor. The Attorney
General’s Office could be referred, but they would have to
choose in their discretion and pursuant to the statute.

[THE COURT]: They can’t.

[DEFENSE COUNSEL]: They can’t because there’s a
statute outlining that. So I don’t know what law—

[THE COURT]: Their authority is within a
specific statute. This is not qualified within that specific
statute, sir.

[DEFENSE COUNSEL]: If I may, and I don’t mean to
disrespect your Honor, what statute or authority does this
court have to appoint a defense attorney as a special
prosecutor in this case?

[THE COURT]: Look it up.

[DEFENSE COUNSEL]: If you could provide me a
citation.

[THE COURT]: You don’t get to tell me what I
have to say or do.

[DEFENSE COUNSEL]: I don’t, Judge.

[THE COURT]: Your objection is noted. It is
overruled.

[DEFENSE COUNSEL]: Yes, your Honor.

[THE COURT]: [The court-appointed special
prosecutor] is representing the Commonwealth of
Pennsylvania in the revocation hearing that will proceed in
due course.

(N.T. Hearing, 9/20/18, at 8-17; R.R. at 62a-65a). Following the hearing, the

Commonwealth filed a motion to stay the proceedings pending appeal.

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On September 27, 2018, two ADAs, defense counsel, and the court-

appointed special prosecutor appeared regarding the Commonwealth’s motion

to stay. Although the court had orally denied the Commonwealth’s motion for

reconsideration at the September 20, 2018 hearing, the court did not receive

the written motion for reconsideration until after the hearing, so the court

permitted the Commonwealth to argue the motion for reconsideration.

Regarding its reconsideration motion, the Commonwealth alleged, inter alia:

(1) the court lacked authority to remove the DA from the case; (2)

Pennsylvania Supreme Court precedent authorizes and encourages the DA to

wait until resolution of new charges before revoking probation; (3) the

Commonwealth’s decision to wait until resolution of the new charges before

proceeding to a revocation proceeding constituted proper representation of

the Commonwealth; (4) requiring the Commonwealth to go forward with

revocation prior to disposition of the new charges would create a host of

appellate issues including, but not limited to, a scenario where Appellee is

acquitted of the new charges but has already been resentenced in the

revocation proceeding; and (5) Appellee is currently incarcerated, so he is not

presently endangering society or the public.

With respect to the motion to stay, the Commonwealth claimed the court

lacked authority to proceed with the revocation hearing while the matter was

pending on appeal, except to grant the Commonwealth’s motion for

reconsideration. The ADA also clarified that the DA’s office did not “remove

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itself” from the proceedings.

The hearing continued:

[THE COURT]: [ADA], your own words say that
the [DA’s] Office of Philadelphia is not going to participate
in [the revocation] hearing unless and until [Appellee’s]
open case has been resolved. That means, sir, in English
that the [DA’s] Office has effectively removed themselves
from representing the Commonwealth of Pennsylvania
within the revocation hearing.

No. You will wait. Because you stated this position on a
number of occasions, sir. And unless the [DA’s] Office
reconsiders its contemptuous behavior which has disrupted
the flow of this courtroom by indicating its willingness to
participate as it normally would in the revocation hearing
involving [Appellee], I would consider quite clearly removing
[the court-appointed special prosecutor] because then there
would be no need for a special prosecutor.

If however, the [DA’s] position remains that the [DA’s]
Office of Philadelphia or representatives therein will not
participate in that revocation hearing, you know, there’s
only so far I can go.

So which direction would you like to go, sir?

[THE COMMONWEALTH]: First of all, I would respectfully
like to clarify our position that you don’t have the authority
to order us to go forward with that at this time under the
circumstances of this case. Respectfully, we disagree about
that. We have not removed ourselves from the case. We
have elected to proceed with the violation of probation
hearing if and when a court of law after a trial demonstrates
that this individual has done something that places him in
violation of your probation. So that’s why I keep attempting
to interrupt. Because from our perspective—

[THE COURT]: However you phrase that, sir,
what that means, sir, is that you will dictate to this court
how to conduct business. And you have impinged upon and
violated the authority of this court because of your opinion
that this court does not have the authority. That opinion

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has no foundation in the law. That opinion and position
violates the order of court. It has intentionally done so. It
has disrupted this court’s authority. And this court is left
with no other method of resolving the matter to provide
[Appellee] a full and fair hearing. Someone has to be in that
chair at the revocation hearing whether you like it or not.

Sir, this is my lane of authority. It is not the DA’s lane of
authority. The DA has no authority, whatsoever, to dictate
to this court how to do its job. And I am well within the
parameters of my authority under the case law and the
statute that reflects the manner in which revocation
hearings are to proceed.

I’m sorry the [DA] does not like the law as it exists. My
suggestion is if you don’t like the law as it exists, talk to
your legislature. It is the job of the [DA] to enforce the law
as it exists and represent the interests of the
Commonwealth of Pennsylvania. Not the law that he wishes
it to be. It is not as you state.

(N.T. Hearing, 9/27/18, at 36-39; R. R. at 76a-77a).

Defense counsel joined the Commonwealth’s motion to reconsider and

alleged, inter alia: (1) the court denied Appellee his right to due process by

requiring the parties to proceed immediately to a revocation hearing before

defense counsel had adequate time to review discovery concerning the new

charges or review the preliminary hearing notes of testimony; (2) Appellee

would be unable to call his co-defendant in the case involving the new charges

as a witness at the revocation proceeding while the new charges were still

open against the co-defendant, due to Fifth Amendment concerns; (3) if

defense counsel prevailed on a motion to suppress, then any evidence seized

from the vehicle Appellee was driving would be inadmissible in the revocation

proceedings; and (4) the court lacked authority to appoint a special

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prosecutor, particularly the court-appointed special prosecutor, who is a

criminal defense attorney.

Following the hearing, the court formally denied the motion for

reconsideration but granted the Commonwealth’s motion to stay the

proceedings pending appeal. On October 3, 2018, the court-appointed special

prosecutor filed a motion to substitute counsel, claiming he is a criminal

defense attorney and cannot act as a special prosecutor while representing

criminal defendants. The court did not rule on that motion due to the stay of

proceedings. On October 9, 2018, the court ordered the Commonwealth to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), which the Commonwealth timely filed on October 26, 2018.

The Commonwealth raises the following issue on appeal:

DID THE [TRIAL] COURT EXCEED ITS AUTHORITY WHEN IT
APPOINTED A SPECIAL PROSECUTOR AFTER A
REPRESENTATIVE OF THE PHILADELPHIA DISTRICT
ATTORNEY’S OFFICE INFORMED THE COURT THAT—
CONSISTENT WITH PENNSYLVANIA SUPREME COURT
PRECEDENT—THE OFFICE INTENDED TO WAIT UNTIL THE
RESOLUTION OF [APPELLEE’S] OUTSTANDING CRIMINAL
CHARGES BEFORE PETITIONING FOR THE REVOCATION OF
HIS PROBATION?

(The Commonwealth’s Brief at 3).

The Commonwealth argues the trial court lacked statutory authority to

replace the DA in this case. The Commonwealth asserts the DA is an executive

branch of government, charged with the responsibility of conducting all

criminal and other prosecutions on behalf of the Commonwealth. When a DA

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is in contempt of court or has a conflict of interest, the Commonwealth claims

the trial judge must act in accordance with the Independent Counsel Act and

ask the President Judge of the Court of Common Pleas to request a Special

Independent Prosecutor’s Panel to appoint a special investigative counsel. If

the DA’s decision not to prosecute a case amounts to an abuse of discretion,

the Commonwealth maintains the Commonwealth Attorneys Act also permits

the trial judge to ask the President Judge of the Court of Common Pleas to

petition the Attorney General to intervene. The Commonwealth insists the

trial judge in this case failed to follow either procedure required to remove the

DA from this case. The Commonwealth emphasizes the trial judge in this case

is not the President Judge of the Philadelphia Court of Common Pleas and did

not act through the President Judge or seek the intervention of a Special

Independent Prosecutor’s Panel or the Attorney General. The Commonwealth

stresses the trial court had no authority to bypass the statutory requirements

for replacing a DA and simply appoint a criminal defense attorney of the court’s

own choosing as special prosecutor.

Even if the trial court had statutory authority to remove the DA, the

Commonwealth contends the trial court lacked justification to take that action

where the Commonwealth followed the Pennsylvania Supreme Court’s

preference to defer revocation proceedings until after disposition of new

charges. The Commonwealth avers the trial court disregarded the notion of

“prosecutorial discretion” in favor of the court’s preference to go forward with

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revocation before disposition of the new charges. The Commonwealth further

disagrees with the trial court’s characterization of the Commonwealth’s

behavior as “contemptuous.” Rather, the Commonwealth affirms it acted in

accordance with its internal policy and Pennsylvania Supreme Court

precedent, and intends to go forward with revocation proceedings if Appellee

is convicted of the new charges. The Commonwealth also suggests deferring

the revocation proceedings did not threaten public safety because Appellee

was already incarcerated pending trial on the new charges. The

Commonwealth concludes the trial court’s removal of the DA and appointment

of a special prosecutor was improper, and this Court must reverse.

As a preliminary matter, the issue on appeal presents a question of

jurisdiction, which this Court may raise sua sponte. Commonwealth v.

Valentine, 928 A.2d 346 (Pa.Super. 2007). The Supreme Court of

Pennsylvania has exclusive jurisdiction over the following types of cases:

§ 722. Direct appeals from courts of common pleas

The Supreme Court shall have exclusive jurisdiction of
appeals from final orders of the courts of common pleas in
the following classes of cases:

(1) Matters prescribed by general rule.

(2) The right to public office.

(3) Matters where the qualifications, tenure or right to
serve, or the manner of service, of any member of the
judiciary is drawn in question.

(4) Automatic review of sentences as provided by 42
Pa.C.S. §§ 9546(d) (relating to relief and order) and

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9711(h) (relating to review of death sentence).

(5) Supersession of a district attorney by an
Attorney General or by a court or where the matter
relates to the convening, supervision, administration,
operation or discharge of an investigating grand jury or
otherwise directly affects such a grand jury or any
investigation conducted by it.

(6) Matters where the right or power of the
Commonwealth or any political subdivision to create or issue
indebtedness is drawn in direct question.

(7) Matters where the court of common pleas has held
invalid as repugnant to the Constitution, treaties or laws of
the United States, or to the Constitution of this
Commonwealth, any treaty or law of the United States or
any provision of the Constitution of, or of any statute of, this
Commonwealth, or any provision of any home rule charter.

(8) Matters where the right to practice law is drawn in
direct question.

42 Pa.C.S.A. § 722 (emphasis added).

Additionally, Pennsylvania Rule of Appellate Procedure 3331(a)(1),

governing the business of the Supreme Court, provides:

Rule 3331. Review of Special Prosecutions or
Investigations

(a) General rule. Within the time specified in Rule
1512(b)(3) (special provisions), any of the following orders
shall be subject to review pursuant to Chapter 15 (judicial
review of governmental determinations):

(1) An order relating to the supersession of a district
attorney by an Attorney General or by a court, or to the
appointment, supervision, administration or operation of a
special prosecutor.

Pa.R.A.P. 3331(a)(1). Significantly, Rule 3331 “affords an explicit procedural

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avenue for challenging the appointment of a special prosecutor. This rule was

designed to provide a simple and expeditious method for Supreme Court

supervision of special prosecutions and investigations….” In re Thirty-Fifth

Statewide Investigating Grand Jury, 631 Pa. 383, 391, 112 A.3d 624, 629

(2015) (internal citations and quotation marks omitted). “The [Supreme]

Court, accordingly, has treated its review orders within the scope of Rule

3331—including those appointing special prosecutors—as a matter resting

within its supervisory prerogative.” Id. (clarifying that Rules of Appellate

Procedure provide appropriate mechanics for contesting appointment,

supervision, administration, or operation of special prosecutor; additionally,

as practical matter, timely challenge under Rule 3331 may be only viable

method for attacking effect of such appointments).

“All petitions for review under Rule 3331 (review of special prosecutions

or investigations) shall be filed in the Supreme Court.” Pa.R.A.P. 702(c)

(emphasis added). “[T]he jurisdiction described in [Rule 702] Subdivision (c)

extends…to interlocutory orders.” Pa.R.A.P. 702, Note. A petition for review

under Rule 3331 “shall be filed within ten days after the entry of the order

sought to be reviewed.” Pa.R.A.P. 1512(b)(3).

Further, under Pennsylvania Rule of Appellate Procedure 751:

Rule 751. Transfer of Erroneously Filed Cases

(a) General rule. If an appeal or other matter is
taken to or brought in a court or magisterial district which
does not have jurisdiction of the appeal or other matter, the
court or magisterial district judge shall not quash such

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appeal or dismiss the matter, but shall transfer the record
thereof to the proper court of this Commonwealth, where
the appeal or other matter shall be treated as if originally
filed in transferee court on the date first filed in a court or
magisterial district.

(b) Transfers by prothonotaries. An appeal or
other matter may be transferred from a court to another
court under this rule by order of court or by order of the
prothonotary of any appellate court affected.

Pa.R.A.P. 751. See also 42 Pa.C.S.A. § 5103(a) (stating matter that is within

exclusive jurisdiction of court or magisterial district judge of this

Commonwealth but is commenced in any other tribunal of this Commonwealth

shall be transferred by other tribunal to proper court or magisterial district of

this Commonwealth where it shall be treated as if originally filed in transferee

court or magisterial district of this Commonwealth on date when first filed in

other tribunal). In other words, “[w]here an appeal within the exclusive

jurisdiction of a tribunal is mistakenly filed in the wrong court, the proper

course is to transfer the appeal to the correct judicial body.” Commonwealth

v. Herman, 143 A.3d 392, 394 (Pa.Super. 2016) (relinquishing jurisdiction

and transferring appeal to Supreme Court where Supreme Court had exclusive

jurisdiction of matter under 42 Pa.C.S.A. § 722).

Instantly, the record confirms the trial court actively removed the DA

from this case and appointed a special prosecutor. Throughout the

proceedings, the trial court isolated certain statements from different ADAs to

support the court’s position that the DA “removed itself” from the proceedings.

As well, in its Rule 1925(a) opinion, the trial court repeatedly denied removing

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the DA, classifying the DA’s actions as, inter alia, an “abdication of

representation responsibility,” “surrender[ing]” of legal representation,

“withdrawing or withholding legal representation,” “admitted [withdrawal] of

representation,” “refusing to represent the legitimate interests of the

Commonwealth,” and “obstructionist abdication of sworn duty.” (Trial Court

Opinion, filed December 31, 2018, at 1, 7, 10, 22, 25, 26, 28, 36). When

viewed in their entirety, however, the transcripts from the multiple hearings

in this case make clear the trial court removed the DA because the DA’s policy

to defer conducting the revocation hearing until after disposition of Appellee’s

new charges interfered with the court’s calendar.

On September 19, 2018, the date the court removed the DA and

appointed a special prosecutor, the Commonwealth filed a notice of appeal in

this Court. In its notice of appeal, the Commonwealth cited Rule 3331(a) as

the basis for this Court’s jurisdiction.3 Nevertheless, the Supreme Court has

exclusive jurisdiction over this case because it involves the supersession of

a DA by the trial court. See 42 Pa.C.S.A. § 722(5). Consequently, the

Commonwealth was required to file a petition for review in the Supreme

Court pursuant to Rule 3331(a), within ten days of the court’s order. See

Pa.R.A.P. 702(c); 1512(b)(3); 3331(a)(1). The interlocutory nature of the

court’s order did not change the Commonwealth’s responsibility in this regard.

____________________________________________

3Because Rule 3331(a) controls this matter, Pa.R.A.P. 311(d), governing
Commonwealth interlocutory appeals in criminal cases, does not apply here.

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See Pa.R.A.P. 702(c), Note. Filing a petition for review in the Supreme Court

was the explicit procedural avenue for the Commonwealth to challenge the

trial court’s appointment of a special prosecutor.4 See In re Thirty-Fifth

Statewide Investigating Grand Jury, supra. Notwithstanding the

Commonwealth’s mistaken filing in this Court, we can transfer this case to the

Supreme Court, as if it had been filed there on September 19, 2018, the same

day as the trial court’s order under review. See Pa.R.A.P. 751(a); 42

Pa.C.S.A. § 5103(a); Herman, supra. See also Pa.R.A.P. 1512(b)(3).

Accordingly, we transfer this appeal to the Supreme Court of Pennsylvania.

Appeal transferred. Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/19

____________________________________________

4 In its opinion, the trial court suggests for the first time that its use of the
term “special prosecutor” was a misnomer, and the court merely made a
“limited appointment.” In any event, the Supreme Court has exclusive
jurisdiction over this case because it involves the supersession of a DA by the
trial court. See 42 Pa.C.S.A. § 722(5); Pa.R.A.P. 3331(a)(1); Pa.R.A.P.
702(c). The case rightly belongs in the Supreme Court.

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