Commonwealth v. Wolowski, B., Pet

• Court: Supreme Court of Pennsylvania
• Decided: October 11, 2018
• Docket: 140 WM 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 140 WM 2018 : Respondent : : : v. : : : BRANDON WOLOWSKI, : : 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

[140 WM 2018] - 2 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.

[140 WM 2018] - 3