J-S26026-19

2019 PA Super 356

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* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

DEMETRIUS MAYFIELD

Appellee

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

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 

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1 18 Pa.C.S.A. § 6105. 
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as knowing, intelligent, and voluntary, and imposed the negotiated sentence 

of 111⁄2 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 

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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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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 
J-S26026-19

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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. 
J-S26026-19

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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 courtappointed 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 
J-S26026-19

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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. 

____________________________________________

3 Because 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.