J-A15036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM SHELTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1243 WDA 2022

Appeal from the Order Entered September 12, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0005062-2022

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: August 9, 2023

William Shelton (Shelton) appeals from the order entered in the Court 

of Common Pleas of Allegheny County (trial court) granting the 

Commonwealth’s motion to disqualify his counsel from his criminal case that 

remains pending in the trial court. Upon review, we quash this appeal.

I.

A.

Shelton was charged with homicide in connection with the fatal shooting 

of Marvin Matthews that occurred on June 19, 2022, in Braddock Borough, 

Allegheny County. Shelton waived a preliminary hearing and present counsel 

entered her appearance as his counsel. The Commonwealth subsequently 

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* Retired Senior Judge assigned to the Superior Court.
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filed a motion to disqualify counsel and her law firm from representation due 

to a conflict of interest under Pennsylvania Rules of Professional Conduct 1.7 

and 3.7. Pa.R.P.C. 1.7 (addressing a lawyer’s duties with respect to 

communications with his or her client); Pa.R.P.C. 3.7 (rule barring an attorney 

from acting as an advocate at trial in which the lawyer is likely to be a 

necessary witness and including exceptions to that prohibition).

The Commonwealth informed the trial court that at a bail hearing, 

counsel requested a behavior clinic evaluation of her client and explained that 

she was not at liberty to disclose her reasons for the request.1 It alleged the 

existence of evidence that made counsel a witness for trial by engaging in a 

telephone conversation with Shelton that was not covered by the attorneyclient privilege due to the manner in which the call was conducted and showed 

what appeared to have been counsel coaching Shelton as to what to tell the 

behavior clinic evaluator.

In support of the disqualification motion, the Commonwealth alleged the 

following:

4. On or about July 20, 2022[, the prosecutor] was informed 

by Detective Hoffman that a three-way jail recorded phone call 

was made on July 14 at approximately 10:31 a.m. The detective 

relayed that [Appellant] was speaking to an unknown female 

before that female begins asking questions to a third party 

(believed to be [present counsel]) who ultimately gets on the 

phone and identifies herself. Upon inquiry of the detectives, [the 

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1 The certified record for this appeal does not contain any notes of testimony 

reflecting the events that transpired at this hearing.
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prosecutor] informed them to listen no further to the call. 

Detectives relayed that they had heard enough to garner that the 

discussion was being had as to how to approach the upcoming 

behavior clinic evaluation. [The prosecutor] was of the opinion 

that any matters of privilege had been broken by the three-way 

nature of the call but nonetheless instructed detectives to listen 

no further out of an abundance of caution.

5. On or about August 2, 2022[, present counsel] informed 

[the prosecutor] that she had received word on the results of the 

behavior clinic evaluation. [Present counsel] relayed that her 

client was diagnosed with PTSD and further advanced her position 

that the PTSD was attributable to facts related to the case and 

having a bearing on the degree of homicide for which her client 

could bear responsibility.

6. [The prosecutor] then inquired as to Detective Hoffman as 

to the substance of the previously described call. It was relayed 

that the call appeared to have some coaching as to what to tell 

the behavior clinic evaluator. [The prosecutor] then requested 

that Detective Hoffman take steps to preserve the call and provide 

a copy to the Office of the District Attorney.

7. The call was placed at approximately 10:31 a.m., 

contextually it appears as if the call is placed at the conclusion of 

the testimony in the withdrawn bail matter. In it, [present 

counsel] relays to her client that he will be getting an evaluation 

and that she needs him to tell the evaluator that he ([Appellant]) 

was under duress for months. She further relays that she does 

not need [Appellant] to tell the evaluator that she ([present 

counsel]) told him to say that he was under duress but that he 

should say that he told [present counsel]. She relays that this is 

a neutral doctor and it is good for their case because a jury would 

likely be told that a private witness was paid.

8. The Commonwealth obtained video surveillance from the 

hallway area near courtroom 504A from July 14, 2022. In the 

video at time stamp 10:29:31[, present counsel] is standing 

outside of the area of Courtroom 504A and is handed a cellular 

phone by an unknown female. [Present counsel] then proceeded 

to hold the phone to her ear until approximately 10:31:28 when 

the phone is returned to the original unknown female. [Present 

counsel] is in and amongst three people during the time for which 

she has the cellular device to her ear. The group, including 
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[present counsel], remain in the hallway until approximately 

10:45 a.m. when they depart. This time coincides with the time 

of the recorded three-person jail call.

Disqualification Motion, 9/1/22, ¶¶ 4-8 (omitting references to attached 

exhibits). The Commonwealth appended a transcript of the recorded 

telephone call to the disqualification motion. Id. at attached Exhibit 3.

At a hearing on the motion to disqualify, the Commonwealth 

supplemented the record with an audio recording of the telephone 

conversation and the referenced surveillance video. In the arguments 

presented, the Commonwealth stated that the person who handed counsel the 

phone for the conversation was Shelton’s girlfriend. Counsel argued that the 

attorney-client privilege protected the content of the conversation with 

Shelton because, while there were third parties present, she stepped aside, 

spoke low and they could not hear conversation. This is why all her calls with 

her clients include a warning about calls being recorded and she “always runs

the risk of having [the] conversations overheard” when opting for in-person 

meetings with her clients. N.T. 9/8/22 at 7-9; see also id. at 14 (“When your 

client is in jail, there are no opportunities to have true, confidential 

conversations with your client.”).

As for the content of the conversation, counsel argued that she was 

simply conveying to Shelton that he did not share his attorney-client privilege 

with a behavioral evaluator. Id. at 18-19 (“The difference was, I needed to 

tell my client, and you can’t tell that behavioral evaluator what we just talked 
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about because I was letting him know that it was attorney-client 

confidentiality, that it was privileged and that he did not have privilege with 

that evaluator.”). In response to the Commonwealth’s argument that it had 

a duty to report the conversation when it became aware of the contents, 

counsel argued that contents of the call were missing the context of her prior 

conversations with her client. Id. at 22.

On September 12, 2022, the trial court entered an order granting the 

motion to disqualify Shelton’s counsel.2 Counsel then filed a motion to 

reconsider the ruling on the disqualification motion on September 22, 2022, 

and the reconsideration motion was denied on September 29, 2022. Order, 

9/29/22, 1. In the reconsideration motion, counsel argued, inter alia, that the 

contents of the conversation with her client could not have constituted proof 

of her coaching her client to commit a fraud on the court because Shelton had 

already reported mental health symptoms that would support a duress 

defense and a history of him enduring abuse, and that he sought treatment 

for those symptoms prior to the recorded conversation. Reconsideration 

Motion, 9/22/22, ¶¶ 6-13, 26-27. On October 14, 2022, counsel filed the 

notice of appeal from the September 10, 2022 disqualification order.

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2 The court also entered orders appointing new counsel; however, for our 

purposes, our references to “counsel” refer to the attorney that was the focus 

of the disqualification motion. Order 9/12/22, 1; Order 9/14/22, 1; Order 

9/20/22, 1.
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B.

Because the appeal appeared to be facially untimely because the notice 

of appeal was filed more than 30 days after the trial court granted the motion 

to disqualify, we issued a rule to show cause order why the appeal should be 

quashed. See Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super. 2000) 

(holding that a motion for reconsideration does not toll an appeal period); see 

also Pa.R.A.P. 903(a) (“the notice of appeal ... shall be filed within 30 days 

after the entry of the order from which the appeal is taken”). The rule to show 

cause order noted that the notice of appeal stated that it was filed from the 

trial court’s order that denied Shelton’s request for reconsideration of the 

order granting disqualification.

Shelton filed a response to the rule to show cause order in which his 

counsel proffered a printout from the Unified Judicial System of Pennsylvania’s 

PACFile system to show that counsel had attempted to electronically file the 

notice of appeal on October 10, 2022. Counsel alleged that she was “at trial 

the follow[ing] Monday” and did not notice until that evening that the notice 

of appeal filing had not been accepted as filed.3 Counsel then inquired as to 

the status of the filing with the Department of Court Record on Tuesday, 

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3 We note that while counsel identified October 10, 2022, as a Saturday, 

October 10, 2022, was actually a Monday. We also note that while counsel 

referred to being “on trial the following Monday” after the attempt to file the 

notice of appeal on a Saturday, that second Monday in October 2022 was an 

observed county, state and federal government holiday for Columbus Day.
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October 13, 2022, without getting a definitive answer. Upon appearing at that 

department’s office the next day, she was purportedly informed that she could 

not use the PACFile system to file the notice of appeal because there was no 

way for her to pay filing fees on that system as a privately-retained attorney. 

Id. Counsel paid the filing fee and was supposedly told that the filing was 

recorded in the system as of October 10, 2022, but that it would not be 

perfected until October 14, 2022. Id. at 2.

Counsel asserted that a breakdown in the court system was to blame 

for the late filing date, and that the failure to pay a filing fee should not have 

invalidated the filing date which should have been October 10, 2022. Id. (“I 

should have received the filing date of 10/10/22, irrespective of perfecting the 

filing by paying the fee.”). We discharged the rule to show cause order and 

advised the parties that the issue addressed by the order could be revisited in 

the upcoming argument panel.

On appeal, Shelton presents the following question for our review: 

“Whether the trial court erred in Granting the Motion to Disqualify and 

Appointing New Counsel when the underlying information was priviledge[d] 

communications?” Appellant’s Brief at 5 (unpaginated).4

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4 Shelton has failed to number the pages of his brief as required by Pa.R.A.P. 

2173. For the sake of clarity, we will reference the pages in Shelton’s Brief as 

if the pages were numbered, with the Statement of Jurisdiction on the first 

numbered page.
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II.

A.

Before addressing the substantive issue presented, we must assess 

whether we have jurisdiction to hear this appeal. In our rule to show cause 

order, we were concerned with whether Shelton had filed a timely notice of 

appeal. Here, the last day upon which Shelton could have filed a timely notice 

of appeal was October 12, 2022, 30 days after the entry of the order granting 

the Commonwealth’s disqualification motion, but it was not filed until October 

14, 2022. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, 

the notice of appeal required by Rule 902 (manner taking appeal) shall be filed 

within 30 days after the entry of the order from which the appeal is taken.”).

While counsel’s recollection of the events surrounding the attempt to file the 

notice of appeal in her answer to our rule to show cause order appears to be 

inexact and based on mismatched days and dates, the PACFile printout 

establishes that counsel attempted to electronically file the notice of appeal 

on October 10, 2022, but it was not accepted because the filing fee was not

paid. Shelton’s counsel asserted in the answer that she was unable to confirm 

until October 14, 2022, that the notice was not accepted because she had 
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been in trial, and that once she determined that it had not been paid, she then 

paid the fee.5

The trial court and the Commonwealth submit that we find the instant 

appeal untimely because the notice of appeal was not accepted until October 

14, 2022. We decline to do so.

Pa.R.A.P. 902(b) provides that “Failure of an appellant to take any step 

other than the timely filing of a notice of appeal does not affect the validity of 

the appeal, but it is subject to such action as the appellate court deems 

appropriate ...” In First Union Nat. Bank v. F.A. Realty Invs. Corp., 812 

A.2d 719, 723 (Pa. Super. 2002), we addressed whether the failure to file a 

filing fee requires the dismissal of an appeal. We held that it does not, stating:

Reading all of these provisions together compels the conclusion 

that an appeal will not be rendered automatically invalid by an 

Appellant’s initial failure to comply with the financial obligations of 

Pa.R.A.P. 905 and Pa.R.A.P. 2701. An appeal filed within the 

allowed time period without the requisite fee will still be 

considered valid.

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5 Shelton’s counsel does not specify whether the PACFile system was on a 

county-based system or the Unified Judicial System of Pennsylvania’s Web 

Portal. For our purposes, it is immaterial because a notice of appeal 

mistakenly filed with this Court would have been stamped with the date of the 

receipt and transferred to the clerk of the court for the court that entered the 

order appealed from, and upon payment for a filing fee, the notice would have 

been deemed final on the date originally filed. See Pa.R.A.P. 905(a)(4); 

West's Pa.Prac., Appellate Practice § 125:1 (“PACFile is a service that provides 

parties the ability to electronically file documents on both new and existing 

cases with the Pennsylvania courts.... Those using PACFile receive automatic 

e-mail notifications when filings are made or orders are entered in their 

cases”).
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An appellate court certainly has the authority to dismiss an appeal 

on the basis of failure to tender the required fee; however, that 

authority is a discretionary remedy which the appellate court can 

impose if circumstances warrant. Dismissal is therefore not 

obligatory in all instances. Appropriate circumstances warranting 

dismissal of an appeal by an appellate court would be, for 

example, if the filing party unduly delays paying the requisite fee, 

or unduly delays seeking leave to appeal in forma pauperis. If

also it has been demonstrated that a litigant has deliberately failed 

to remit a required filing fee, or exhibited a clear pattern of 

attempting to cause delay in legal proceedings by repeatedly filing 

appeals, and then failing to timely remit the appropriate fees, this 

Court will not hesitate to impose the sanction of dismissal, and 

any other sanctions that we deem appropriate.

This outcome is unaffected just because the matter was electronically 

filed. Pa.R.A.P. 125 provides that “[e]lectronic filing of documents in the 

appellate courts shall be through the PACFile appellate court electronic filing 

system. Electronic filing of documents shall be governed by Administrative 

Orders of the Supreme Court of Pennsylvania, which may be found at 

http://ujsportal.pacourts.us/refdocuments/judicialorder.pdf.” The

administrative order under the title of “Electronic Filing, Transmission and 

Remand of Records” in Section (A) provides: The electronic filing, 

transmission or remand of a record through the PACFile system by a court or 

other government unit shall constitute the filing, transmission or remand 

of the record under the Pennsylvania Rules of Appellate Procedure.” 

(Emphasis added.)

Because none of the factors mentioned in First Union Nat. Bank or 

any other factor would make it appropriate for us to quash the appeal, we will 

not do so on that basis.
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B.

However, even though we find that the notice of appeal was timely, we 

are constrained to quash this appeal for lack of jurisdiction because the 

disqualification order was an unappealable collateral order under Pa.R.A.P. 

313(a). Our Supreme Court has explained:

Rule of Appellate Procedure 313 sets forth a narrow exception to 

the general rule that only final orders are subject to appellate 

review. Under this exception, an interlocutory order is considered 

“final” and immediately appealable if (1) it is separable from and 

collateral to the main cause of action; (2) the right involved is too 

important to be denied review; and (3) the question presented is 

such that if review is postponed until final judgment in the case, 

the crimes right will be irreparably lost. This third prong requires 

that the matter must effectively be unreviewable on appeal from 

final judgment.

Commonwealth v. Wells, 719 A.2d 729, 730 (Pa. 1998).

Our Supreme Court addressed whether the granting of a motion for 

disqualification was a collateral order that could be immediately appealed in 

Commonwealth v. Johnson, 705 A.2d 830 (Pa. 1998). In that case, it 

reversed our holding that an order disqualifying counsel was an appealable 

collateral order and remanded for the entry of an order quashing the appeal. 

Id. at 834. The Supreme Court stated that criminal defendants generally may 

appeal only from a judgment of sentence, but have been permitted to appeal 

from interlocutory orders under the collateral order Pa.R.A.P. 313 “when an 

appeal was necessary to ensure that they would not be deprived of a 

constitutional right.” Johnson, 705 A.2d at 832-33. An example of an 

appealable interlocutory order pointed to by the Court was the denial of a 
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motion to dismiss based upon double jeopardy absent a trial court finding that 

the motion was frivolous. Id. At 833.

In holding that disqualification orders do not satisfy the requirements of 

the collateral order exception, our Supreme Court relied on the United States 

Supreme Court’s decision in Flanagan v. United States, 465 U.S. 259 

(1984), and concluded:

Like the denial of a suppression motion, an order disqualifying 

counsel is reviewable after judgment of sentence. If a judgment 

is obtained and it is determined on appeal that the trial court 

improperly removed counsel, the right to counsel of choice is not 

lost. There will be a new trial and the defendant will have his 

counsel of choice. This is unlike a double jeopardy claim where if 

the trial goes forward and the court wrongly denied the motion, 

the right is lost.

Johnson, 705 A.2d at 833-34, citing Flanagan, 465 U.S. at 268-69. Our 

Supreme Court also reiterated in Johnson the importance of the finality rule 

in criminal cases because it serves to promote the compelling interest in 

prompt trials by avoiding the disruption of cases generated by piecemeal 

appellate review. 705 A.2d at 834.

Despite the trial court’s reliance on that decision in its own opinion, 

Shelton does not address the Johnson opinion but, instead, rephrases the 

issue that “appellant’s colorable claim of attorney-client privilege and attorney 

work-product privilege can establish the propriety of immediate appellate 

review,” and cites Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 

1117 (Pa. Super. 2007), and Dougherty v. Philadelphia Newspaper, 85 

A.3d 1082 (Pa. Super. 2014). Berkeyheiser involves a discovery order, an 
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order granting a motion to strike objections to proposed subpoenas where 

some documents requested were allegedly privileged and, therefore, not 

discoverable. 936 A.2d at 1119, 1122-23. It has no application to this appeal 

because it does not involve discovery requests, and the court did not order 

the disclosure of privileged communications. Shelton may well still pursue a 

pre-trial motion to bar the admission of the contents of his communications 

with his counsel, but that expectation does not transform the disqualification 

order at issue into a discovery order.

Dougherty did involve a disqualification of counsel motion but, in that 

case, the order on appeal was one denying a motion for disqualification of 

counsel in a defamation case. 85 A.3d at 1083. The concern for the appellant 

in that case was to seek disqualification of a firm who had represented him in 

the past because he believed that there was a substantial risk that that firm 

would use confidential information, obtained from the prior representation, for 

adverse parties in the new matter. Id. at 1086. While addressing the denial 

of a motion to disqualify counsel, Dougherty is inapplicable because it 

concerned the prevention of the disclosure of privileged information in civil 

cases while in this appeal, the disqualification order did not directly or 

indirectly cause the dissemination of privileged information; it merely 

considered the appropriateness of disqualification.

In any event, Johnson requires us to quash this appeal without 

addressing the substantive issue presented. 705 A.2d at 834 (“We thus hold 
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that an order removing counsel in a criminal case is interlocutory and not 

immediately appealable. Whether the trial court erred in removing counsel is 

not properly before this Court.”). Accordingly, the appeal is quashed as being 

interlocutory.

Appeal quashed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2023