*1 wealth to a legal determination of what pre-trial was a conference and not an adjudication on the merits. Because no trial proceedings had begun when the court made the legal ruling, jeopardy had not yet attached. Common- Davis, 5, 912, wealth v. n. Pa.Super. 372 A.2d 914 n. 5
Order reversed and remanded for proceedings on the merits.
Jurisdiction relinquished.
v. CARSIA, Appellee. Bruce Superior Pennsylvania. Court of
Argued July 1984. April
Filed 1985. Petition Appeal for Allowance of Sept. Granted 1985. was, fact, ruling purely legal granting on a issue and was a Motion Trans, (Tr. 23). sustaining to Dismiss and p. not a demurrer. *3 Claus, Lawrence N. Pittsburgh, Commonwealth, ap- pellant. Carroll,
John R. Philadelphia, for appellee. SPAETH, Before Judge, President WICKERSHAM, BROSKY, WIEAND, CIRILLO, SOLE, DEL MONTEMU- RO, JOHNSON and POPOVICH, JJ.
MONTEMURO, Judge:
In this appeal, our court is asked again once to delineate the scope of the power and the Attorney General to prosecute criminal cases vis-a-vis the power and authority that is similarly vested in the district attorneys of the various counties. This like the controversy, mythologi- Phoenix, cal has repeatedly risen from the ashes renewed and regenerated; as many times as the courts and the legislature have attempted conflict, to resolve the it returns in a different form context, a different yet the substantive heart remains constant.
In incarnation, this controversy presented to us in the context of an appeal from an order of the Court of Common Pleas of Allegheny County granting petition quash criminal informations. The circumstances giving rise appeal are as follows.
The appellee, Carsia, Bruce was arrested and charged with bribery,1 obstructing law,2 the administration of con- spiracy,3 and solicitation4 by Special Agent Dennis Danask of the Bureau of Criminal Investigation [BCI], the investi- 1. 18 Pa.C.S. 4701. §
2. 18 Pa.C.S. 5101. §
3. 18 Pa.C.S. §
4. 18 Pa.C.S. § 902 The Attorney the of the General. arm of Office
gative the alleged attempt by appellee, out of an charges arose municipal police to two County attorney, bribe Allegheny case, then pending fix a which was before officers to Justice, of the against Mifflin District two Township West clients.5 appellee’s their superiors, the incident to reported
The two officers incident, including of the Investigation contacted BCI. who communi- personal of wire and interception taping the charges the After cations, solely by conducted BCI. was the filed, of the case was assumed prosecution the were Executive through Deputy of the Office Keuch, the informa- signed L. who General Robert N. Lawrence tion, Attorney General through Deputy Claus. counsel, filed a “Peti- trial, through appellee,
Prior-to the Corpus for Habeas Quash Information/Request to tion alleged The that petition Relief.” Appropriate or other authori- requisite lacked Office action, instead the district and that prosecute ty the action. prosecute should Allegheny County attorney that alleged The further petition forth in Section was set grant sole Act, Act of October 732-101 et 71 P.S. 15, 1980, seq, P.L. No. 164 et § § any not within the instant was prosecution and that seq, section, 732- 71 P.S. categories the enumerated 205(a)(l)-(8). conducted before petition was hearing
A on attorney gen- McGinley. deputy L. Honorable Bernard to the effect testimony presented argument eral knowledge conducted with investigation was and that Attorney, District County Allegheny consent of the in the manner which conducted being prosecution At it. have conducted the district would preliminary justice for a go the district before 5. The clients were six valued hearing charges arising the theft of merchandise on from at department ($6,000.00) a local store. from thousand dollars *5 hearing, conclusion of the the court concluded that the the Office of not authorized prose- cute the action under the Commonwealth Act. Attorneys The court therefore ordered that the information dis- missed. “Application
The filed an Commonwealth Reconsidera- Quash” tion of Defendant’s Motion to the alleging that prosecution 205(a)(1) (2) was authorized Section by Act, the 732-205(a)(l), Commonwealth 71 P.S. § application by The was denied order Judge McGinley on December 1982. The office of Attorney General referred as immediately [hereinafter “Commonwealth”] filed a notice of appeal.
Herein, the Commonwealth asserts that the lower court erroneously dismissed the information. The Common- argues wealth that Office of the Attorney General possessed to prosecute the action under, from, both apart Commonwealth Attorneys Act. find arguments. We no merit these Before discuss- ing the merits of these we arguments, dispose must of two preliminary questions.
The appellee argues appeal the instant should be quashed because the Commonwealth has not been out put by court the order of the lower court. The appellee that, alerts to the subsequent us fact to the dismissal information, instant charging information the same of- fenses on same Alleghe- based incident was filed County ny Attorney. appellee argues District that the out of prosecution is not court because the Commonwealth, is being through continued a merely It different law firm. is this kind of logic gave a Sophists bad name.
Regardless of the or the prosecution merits status of being conducted attorney, an order has been in the present prosecution entered action terminating final order under charges. This order Pa.R.A.P. 341(c), from properly may appeal. which the Commonwealth
Furthermore, it is an which substantial appeal rights *6 Thus, the appellee’s are at stake. we decline interests quash appeal. to invitation matter, the would have us On the other Commonwealth to the appellee any standing challenge hold the lacks that At- with the compliance Commonwealth Act The of this is that the argument Act. thrust torneys express remedy no wherein the affords of express grant action there is no prosecutes an for which it is that the uti- argued remedy authority; consequently, lized lower dismissal of the information was the court’s by if only is argument Commonwealth’s viable improper. in Act is read a vacuum the Commonwealth other statutes and rules. devoid of respective spheres at hand not the only The case concerns the attor- of the General and authority of counties, require- but also the basic neys of the various for a valid information. ments have supreme the and the court legislature
Both
to
respect
to be followed with
requirements
promulgated
225(a) mandates
the
of informations. Pa.R.Crim.P.
filing
attorney
proceed
that
the Commonwealth ... shall
“the
for
of
filing
an
it with the court
by
information
preparing
225(b) provides that
common
Pa.R.Crim.P.
pleas.”
“[t]he
the
by
the
for
Com
signed
information shall be
monwealth____”
signature requirement
The reason
the
Emanuel,
v.
501 Pa.
explicated Commonwealth
(1983)
it
Id.,
587-588,
As the “Attorney for Commonwealth” is to include only intended not the Attorney any District and or deputy assistant district in attorney county, the but General, also the Attorney any or deputy assistant attorney general, in those the county cases in which the Attorney General is by prosecute. authorized law to added). (Emphasis it
Alternatively, is mandated that statute “[t]he district sign all informations.” Pa.C.S. 8931(c). (i) The statute continues in subsection to define § including “district as “a attorney” special attorney appoint ed the in Attorney General provided the manner 8931(i). statute.” Pa.C.S. In criminal prosecutions, the Attorney power delegate General’s to the responsibility executing 205(d) his function set forth in Section of the Act, which states:
(d) Powers prosecuting. when the Attorney —Whenever action, prosecutes General a criminal or appeal, he may special such employ deputies necessary as are for that deputies such shall the purpose; take oath of office and powers, clothed all with the to all the subject upon limitations law imposed by attorneys, includ- sign the or ing informations indictments. in a criminal intervenes the General Attorney Whenever the intervention a result of action, incurred as the costs the Commonwealth. paid by shall be or other however, any General clear, that an It is official that that delegate only official can autho- Thus, unless the possesses. appellee, the dis- against the prosecution rized to conduct was warranted. missal of the information matter, that the Common- preliminary note as a final We of “standing”, under the rubric other matters raises wealth his arrest via challenged i.e., appellee an assertion that a was waived challenge and that such quash, petition chal- filed; appellee assertion that the and an untimely as these the court. dismiss We jurisdiction lenged of the misconception in a being grounded as assertions so, case, proceed we shall having done issues aspects appeal. the more substantial support arguments advances three The Commonwealth shall court erred. We lower of its assertion in manner which facilitates arguments address these legisla- courts and the past problems exposition the bounds of delineating faced ture have authority. Pennsylvania under the argues The Commonwealth to inves- Constitution, was authorized appellee. On charges against tigate *8 a “constitutional 16, 1978, approved electorate the May Attorney of elected General the office creating amendment under the appointed by officer Governor replace added.) (Emphasis since 1874.” authority constitutional OFFICE COMMISSION: STATE GOVERNMENT JOINT at 1 Report Final GENERAL ELECTED ATTORNEY OF provides: Art. 4.1 (1978). Pa. CONST. § Attorney General § 4.1. qualified shall chosen
An General be Attorney general day on the electors Commonwealth Trea- Auditor and State for the General election is held from the during years four surer; his office he shall hold next Tuesday January ensuing third of his election and not continuously shall be to serve than eligible more terms; two consecutive he shall chief be the law officer and shall such and powers exercise perform such duties as bemay imposed law.
The argument essentially Commonwealth’s is this provision contemplates General is vested with the which authority possessed he theretofore by virtue law, statutes, of regulations common and judicial pro- Thus, nouncements. the Commonwealth contends that the only lower court erred that the current concluding source authority of which the may prosecute General cases criminal is to be found in Section 205 of the Common- Act, Rather, wealth P.S. 732-205. it is § asserted the elected armed is with the powers to that office. traditionally attributed
We note that the argument Commonwealth’s invokes spirit half-century of jurisprudence in this state. Dur- ing period, the courts the legislature and from have surveyed time to time of the Attorney boundaries General’s authority from time to time the scope of that authority has changed. been The one issue is which has strong bred disagreement by vigorous as exhibited even Indeed, vociferous dissents in our courts. the precise measure General’s area static, investigation criminal is not but is instead a dynamic protean concept. The which question upon our attention must focus this: What is basis for the authority of the office of the elected Attorney criminal actions? 4.1, The root of our inquiry, Pa. CONST. Art. only us informs that “he shall be the chief officer law Commonwealth and shall such powers perform exercise such imposed duties as may by law.” exact nature of the Attorney powers and duties is left unde- fined. The Commonwealth asserts that the words “as may be imposed by require law” us to consider all source law, merely and not the latest enactment. It statutory asserts that this construction is correct and cites the inclu-
242 be chief law officer for
sion of
“he shall
phrase
That
argument.
phrase
as
for its
support
Commonwealth”
of the
descriptive
powers
term of art
of the
is said to be a
enactments, see
Attorney
previous legislative
under
704,
244.
9, 1929,
177, art.
71
of
P.L.
VII
P.S.
April
Act
§
§
that its inclusion in the consti-
it
contended
Consequently,
4.1,
amendment,
4,
as
Pa.
Art.
as well
tutional
CONST.
§
enactment,
Attor-
legislative
the current
Commonwealth
950,
15, 1980,
164, 101
Act,
of
P.L.
No.
neys
Act October
§
732-101,
legislative
evidences a
intent
P.S.
seq.,
et
71
§
authority
Attorney
of
power
continue the
constitutional amendment. We be-
prior
as it was
Attorney
historical
powers
lieve that reference to the
this issue.
necessary
proper disposition
to the
General is
in the nature
unique jurisdiction
has been a
Pennsylvania
to its
General.
authority granted
scope
of law
1850,
repository
the sole
Until
he was
Commonwealth,
pow-
the same
enjoying
enforcement in this
England
that the
General of
prerogatives
ers
1850,
3,
P.L.
By
May
Act of
enjoyed at common law.
1,
654,
county
created the office of
legislature
§
function of criminal
attorney,
carry
prosecutions
out the
indictment,
all
theretofore
signing
that of
bills of
including
General,
desig-
his
or his
deputies
executed
in a
intervene
nees.6
General could still
so
requested
president
if
to do
prosecution
criminal
was
prosecution
in which the
jurisdiction
judge
85,
2,
12, 1866,
May
Act of March
P.L.
Act of
pending. See
IX,
498,
351,
7,
Act
Art.
P.L.
550.
of June
P.L.
(1881);
McHale,
v.
et
71 P.S.
51 et
the
General had the
§
power to intervene or “supersede” the district attorney
under certain circumstances.
Id.
71 P.S.
297.
§
§
Moreover,
the
had
General
“to investi-
violations,
violations;
gate any
alleged
or
laws
may
Commonwealth which
come to
notice
...
[his]
[and]
steps
take such
as
reasonably
...
bemay
necessary to
[t]o
enforce the
laws
the Commonwealth.” Id.
71 P.S.
§
294.
was
Lehman,
It
not until
Commonwealth v.
309 Pa.
(1932),
Lehman unwittingly served as the sire of a generation of cases which scope saw the of the Attorney General’s au- thority to prosecute criminal cases expand dramatically. The first born of generation was Commonwealth ex rel. Minerd Margiotti, (1936), v. 325 Pa. A. in (later Justice) which Justice Chief Schaffer consummately discoursed upon history common law of the office of Attorney General from in most ancient roots sixteenth century England. court concluded that the Pennsylva- nia Attorney enjoyed the same his powers as com- mon law ancestors. As stated the court:
We conclude from the review decided cases and historical and other authorities that Gener Pennsylvania al the powers clothed with enveloped attributes which at Attorneys General com law, investigate mon to including right acts, criminal in proceedings to institute several counties of the Com indictments, monwealth, appear to sign before the testimony, appear and submit court grand jury and, behalf,2 on try criminal cases the Commonwealth’s aside any supersede and all these activities to and set when in the district action (Footnote judgment may necessary. such added). omitted) (emphasis
Id.,
30-31, 188
529-530.
325 Pa. at
A. at
ex rel.
v.
the Attor-
Margiotti,
Minerd
clearly
bestowed on
to that
enjoyed
which he
ney
superior
Code of 1929
that the interven-
under
Administrative
*11
Re
consigned
to the
General.
tion decision was
Investigative Proceedings
Dauphin County
Jury
Grand
1, 332
Commonwealth v.
289,
(1938);
2 A.2d
No.
783
Pa.
306, 309,
764,
A.
188
766
Ryan,
Pa.Super.
126
17,7
30, 1938,
the
July
Legislature put
the
of
P.L.
By
Act
the
on Minerd
gave
the
decision. The Act
imprimatur
its
a
supersede
the “absolute discretion” to
investigation
the
or
county
attorney
prosecution
district
In Re Dauphin
Jury
Grand
County
of a criminal action.
3,
Proceedings No.
358,
Pa.
Id., 332 365, 2 A.2d It in this case at 813. was also Pa. at ex rel. that the first criticism the rule Commonwealth of part: pertinent Act 7. The stated Assembly Pennsylvania the Commonwealth of hereby as follows: enacts investigation pend- any proceeding or whatsoever Section 1. In general delivery oyer jail ing any court of and terminer before county quarter any of this any court of sessions in or before Commonwealth, may, General of Commonwealth investigation proceeding, any in his absolute at discretion, of the or state attorney district of the supersede and set aside the county.
245 Minerd was Margiotti, supra, v. unleashed. In dissent- ing opinion, Maxey Justice stated the court’s discussion of, on, and reliance the common law authority Attor- ney superfluous General was under the facts of case because supersession clearly authorized Section 907 Ad- Maxey ministrative Code. Justice court’s viewed the re- liance on common law as mere dicta which was not binding on the court. He further expressed disapproval staunch 30, 1938, the Act of July P.L. 17. This disapproval was borne out legislature’s quick reversal in repealing 1939, 20, Act. Act of March P.L. 8.
Despite
abrogation
legislative mandate,
rule of Commonwealth ex Minerd v.
supra,
rel.
Margiotti,
maintained its
potency
forty years.
over
Gwinn v.
Kane,
269,
(1975) (court, however,
465 Pa.
Even a in cursory reading those cases will as readily question disclose that no to common law power in a supersede General District present Attorney of his own motion was for decision. Indeed, passed at com- upon the matter had never been prose-
mon law for the all-sufficient reason
elected
cuting
political
officers were unknown to its
institutions.
of Ever since
creation
offices
England
ago,
in
several centuries
and Solicitor General
men-
the two officers
prosecuting attorneys (beyond
just
tioned)
still are the Attorney
have been and
and,
course,
to removal or
subject
own
appointees
his
no
by
pleasure. Manifestly,
him at
supersession
and
rightly
can
drawn between
analogy
system
in
since
system
Pennsylvania
which has obtained
of elective District Attorney
creation of
office
later,
3, 1850, P.L.
office
Act of
Sec.
May
—an
(Art. XIV,
still,
of 1874
Secs.
ordained
the Constitution
2).
mere
behol-
political appointee,
1 and
The idea that a
tenure,
people
and not to the
his
appointer
den
his
can,
duly
set
volition,
supersede
of his own
aside
constitutional officer runs counter to even
elected
most
form of demo-
conception
republican
limited
estab-
cratic
which
Commonwealth was
government
maintain and which the National
lished to secure and
(Art.
the Federal Constitution
charged by
Government
IV,
4) to
guarantee
every
(Emphasis
Sec.
State.
original).
341-342,
Id. 365 Pa. at also Fudeman, (concurring supra, opinion v. monwealth Orsini, Jones, C.J.) ex v. Margiotti rel. Jones, J.) (concurring opinion by supra, Fudeman, support In Jones found new Chief Justice Musmanno, typi- spoke who out with person Justice vigor eloquence stating: cal or supported historically, statutorily, juris-
It cannot be are several decisions this Court prudentially. There rote war- which, poll-parrotism, from a standpoint it the assertion Majority making rant the present nevertheless, remains, case, in this the fact makes but did does have and never that the not when, if, himself to decide for have the absolute *13 duties, func- should take over the and to extent he what of a Attorney. tions District responsibilities Within recent years authority of the Attorney Gen- eral has overflowing been banks of constitutional inundate, channels until it smother, threatens choke local prosecuting authority. come, The time has overdue, and is indeed long past bring the concept of power of the Attorney General within its constitution- al limitations. And the to perform one job Court, because this Court has been mostly responsible for fiction, creating the the legend, and the absurdity that an appointed official with his office in Harrisburg, may at pleasure his take over the offices of district in attorneys 67 counties and run them to his govern- suit own ideas of ment, whim, as aswell his caprice, and ambitions. Such a notion runs counter to every principle of American democ- where the racy power to govern stems from the people, In people alone. all the literature on the subject one cannot find any authority justify the incredulous assumption that appointed (the officer Attorney Gen- eral) may displace, authorization, because common law an officer elected people by mandate of the Consti- tution.
The Attorney General powers has tremendous but he is not, as the Majority Opinion believe, would us have omni- ubiquitous, potent, omniscient the entire legal realm the State. Fudeman,
Commonwealth v.
supra,
253-255,
The rule was opinion further criticized majority Mirarchi, Packel v. supra, which sustained the Attorney supersession Philadelphia District based on the Attorney General’s statutory authority. Therein the court noted: ruling on was based not the assumption such
[The] given statutorily, premise but rather on the *14 248 power “enveloped” attorney generals such at com Attorney Pennsylvania
mon and the General of was law reasoning with the This power. “clothed” same has been criticized. Current in Penn severely See Some Problems Attor sylvania Attorney General versus District Law— 814, Note, (1951), 826 The Com ney, 99 U.Pa.L.Rev. mon of to Supersede Law Power State General Prosecutors, Furthermore, (1951). Yale Local 60 L.J. 559 has seems to be which Pennsylvania only jurisdiction a supersession district on the approved attorney powers. Cf, Attorney basis of common law C.J.S. Gener 47 5, Hopkins, al v. Misc. supra; People [182 313] 110, 204 (1944); 222 v. La. 15 Kemp Stanley, N.Y.S.2d Watson, 263, (1943); 1 In 293 Mich. N.W. So.2d Re 291 (1940); 366, 375 31 591 People 652 v. Ill. N.E.2d Flynn, 605-606, 458 327 A.2d at Id. Pa. at 55. Schab, 55, in v. 477 Pa. 383 A.2d
Finally, Commonwealth (1978), supreme the tide turned and the court 819 its As stated the court: repudiated progeny. Minerd and longer Simply We no adhere to this view. because the common replace General had law to Attorney he deputies justify his does not the conclusion that own right supersede now has the same to an elected District common It an officer unknown to the law. Attorney, in the incongruous place would to the district attorney to being the electorate for position responsible his actual control his performance of duties while over was, effect, in To performance General. accountability such a and con- separation countenance centraliza- self-government promotes trol undermines 236, tion, Fudeman, 396 Pa. v. see Commonwealth (1959) (Musmanno, of law dissenting), A.2d 438-40 J. approach Pennsyl- precisely rejected enforcement — constitutionally in 1874. statute in 1850 vania Id., at 822. at 383 A.2d Pa. court, abolishing to
The in addition Sehab to investigate prose- General’s common law cases, reinterpreted also 904 and 907 criminal Sections cute 294, 297, Code 71 P.S. of the Administrative §§ harmonize those sections. The court inter- attempt seeking 904 to allow preted Section petition presi- supersede county supersession. to allow proper jurisdiction dent judge good must cause therefore “establish Id., A.2d at 824. 477 Pa. at supersession.” *15 However, of is aspect the continued reliance of this Schab in of the of Sections 904 suspect light subsequent repeal the Common- by and 907 of the Administrative Code of 1929 Act, 15, 1980, Act of P.L. Attorneys wealth October 164, 503, 732-503, incorporation No. 71 P.S. and the § § in the act to account comprehensive procedures more new for the Schab decision. Schab, at the
Subsequent again starting we arrive is, Art. 4.1 and the Common- point inquiry, § circle, Act. come full we state as Attorneys Having wealth digression a conclusion that the short historical shows a continuing legislature conflict the courts and the over General respective spheres authority attorneys. and the district The asserts that 4.1, in Art. and in language the inclusion of certain by Act, intended to Attorneys per- the Commonwealth it was this conflict. We cannot this assertion. petuate agree with it is courts and the We believe evident that both the The courts did so legislature repudiated past. by have Schab, of the decision in supra; means Commonwealth v. of the Adminis- legislature by repeal portions of 1929. trative Code which defines only remaining source investigate scope criminal actions is the Commonwealth Attor source of that
neys Act. We conclude that it is the sole Indeed, legislature that the power. indisputable we find it Resolu intended different result. Pursuant to Senate any 61, 1977, Government Commission tion No. the Joint State study the office of comprehensively formed a Task Force to the elected Attorney General and to draft legislation to implement the constitutional amendment providing for that office. The Task Force executed these functions draft- which, ed a bill after proposed some amendments not rele- herein, vant was enacted as the Commonwealth Act.8
Our conclusion that the legislature intended a with break past supported by Report Final issued Force, Task which states:
Underlying legislative recommendations of the task force general are five on concepts which there was sub- stantial consensus:
1. Legislation enacted Assembly is the exclusive source of the powers and duties of the elected IV, pursuant 4.1, to Article Section provides part which that the Attorney General “... shall be the chief law officer of the Commonwealth and shall exercise powers such and perform such duties as imposed (Footnote may omitted). law.” JOINT STATE GOVERNMENT COMMISSION TASK *16 THE FORCE ON OFFICE OF ELECTED ATTORNEY GENERAL FINAL REPORT at It must be re- repeal membered with the of the provisions relevant the Administrative Code of the Commonwealth Attor- neys only legislation Act is the delineating the powers General. The Task force further stated:
4. The elected Attorney General must as the serve inde- chief pendent and, officer to investigate law-enforcement where appropriate, prosecute criminal charges wrong- doing by State officials and employees by persons and in engaged widespread organized corruption. The del- proposed 8. The bill initially drafted Force Task was filed as September 5. necessary B. 1595 and H.B. 2663 on 1978. It is not present purpose totally legislative for our Act; however, history recount the of the bill, provisions proposed the relevant of the Section Prosecutions, Investigations, Criminal and Section Criminal substantially were the same as those enacted as Sections 205 and 206 Attorneys of the Commonwealth Act. We note that amendments were 205(a)(4) (8), 206(b). made to Section and and to Section The amend- ments, however, reasoning not affect our or our result. do providing a statewide icate between balance vigorous impinging upon law-enforcement officer while not chief constitutionally and duties of the created the jurisdiction led to careful county-elected office of scope implementation consideration of the of the elected General. jurisdiction criminal (Emphasis original). convincing legisla-
These statements are evidence of the intent to limit the tive to those
investigation prosecution criminal actions set forth in the Attor- expressly instances Commonwealth Act. constrained to heed these statements in neys We are 1939; Act. 1 Pa. 1 Pa. interpreting the C.S. C.S. § Therefore, 1921(a), (c)(7). we hold that the Attorney § investigate prosecute can criminal actions only the confines of the Act. Attorneys within Commonwealth concluded, Having reject so we must the Commonwealth’s attempted body pre-existed resurrection of the law which 4, 4.1. If our might prior analogy slightly, Art. we twist § the Office of the Phoe- equate Attorney General with nix, emerged the latest incarnation has into a world of circumstances; changed having and more limited its powers legislature. been bridled The focus of our inquiry question must now shift to the of whether the instant prosecution was authorized Attor- Commonwealth Act. neys Act, 205 of the
Section P.S. 732-205,9 sets forth the scope Attorney General’s § prosecutions. Criminal 9. 732-205. (a) Prosecutions. —The General shall have the any county following criminal court the cases: (1) against affecting charges employees Criminal State officials or performance public of their duties or the maintenance of the *17 public charges against persons attempting trust and criminal to employees such influence such State officials or or benefit from attempt influence or to influence. (2) charges involving corrupt organizations provided Criminal as (relating corrupt organizations). for in 18 Pa.C.S. 911 to (3) attorney Upon request of a district lacks the re- the who adequate investigation prosecution an or the of sources to conduct represents is the the criminal case or matter or who there 252 apparent potential part for an or actual conflict of interest on the of attorney the district his or office. (4) Attorney may having jurisdic- petition General the court any proceeding Attorney permit tion over criminal the to General to supersede attorney prosecute the district in to a order criminal proceedings. Upon filing or to action institute criminal the of the president judge petition, assigned the shall hear the matter within days appointment after and as make a determination to whether supersession days hearing. to allow attorney within 60 after the The district given may hearing appear shall be notice of the and and granting petition, Supersession oppose the the shall be ordered if Attorney by preponderance the that the district General establishes a of the evidence attorney prosecute has failed refused or to and such failure or refusal constitutes abuse of discretion. (5) president judge having jurisdiction When the in district the any proceeding criminal has reason to believe that the case is a Commonwealth, proper one for the intervention the he shall request Attorney represent the General to the Commonwealth in the investigate proceeding charges and to and the defendant. agrees Attorney proper If the intervention, General that the case ais one for petition proceed file he shall a with the court and as Attorney provided the case is not a paragraph in If the General determines that intervention, proper notify case for he shall president judge accordingly. (6) investigated by charges by Criminal and to referred him agency arising provisions Commonwealth state out of enforcement of the charging duty agency provision. with a to enforce its (7) by investigating grand jury Indictments returned an obtained by Attorney General. (8) Charges arising Criminal out activities State Medical (relating Fraud Control Unit as authorized XIV to Article fraud control, (P.L. 31, 21), and abuse the "Public Welfare act of June No. known as Code,” Federal law known as the "Medicare-medicaid Antifraud and Abuse Amendments.” (b) jurisdiction prosecute. Concurrent to General —The prosecutorial jurisdiction shall have the concurrent with district (a)(1), (2) (6) attorney arising may for cases under subsection any alleged refer the district with his consent violation or may violation criminal laws of the Commonwealth which come to his notice. (c) appeals. any Criminal criminal there is which action —In discretion, appeal, may upon request General his attorney, prosecute appeal; may district he intervene in appeals provided such other as law or rules of court. (d) prosecuting. when Powers —Whenever action, presents may appeal, employ special a criminal or such he necessary deputies purpose, deputies as are for that such shall take the powers subject oath and be with of office clothed all the all the power imposed by upon attorneys, including liabilities law sign informations or indictments. Whenever the action, intervenes intervention shall be a criminal the costs incurred as a result of the (Footnotes paid the Commonwealth. omit-
ted)
253 criminal prosecute actions. The Commonwealth the instant authorized Sec- prosecution contends that is 205(a)(1), 205(a)(2). or the alternative Section tion 205(a)(1), is authoriz- General Attorney Under Section charges against “state officials or prosecute ed to criminal public their employees affecting performance duties,” influence such against “persons attempting or ad- employees.” state officials Commonwealth grounds prosecution vances three for under subsection. Carsia, prosecute First that the General can Attorney official; second, as a attorney, state can to influence a prosecute attempting Carsia official; third, justice, a state attempting can Carsia for to bribe officers, who, it is asserted are state municipal police two or These assertions are merit. employees. officials without assertion,
In
of its first
support
Commonwealth
our
to 42
2521 which describes
directs
attention
Pa.C.S. §
describing
2522
attorney-at-law,”
the “office of
Section
“office.” The
entering
the oath to be taken before
provisions
that these
establish attor
argues
Commonwealth
as
officials. The
further
neys-at-law State
Commonwealth
4
6 in
its assertion.10
support
cites Pa. CONST. Art. Sec.
argument.
We refuse to subscribe to the Commonwealth’s
point,
there
no
on this
we
Although
specific authority
is
not a state officer so as to
his
bring
note that an
Act, 42
Rights
of the Civil
U.S.C.
purview
actions within
(3d Cir.1972),
1046,
1983. Brown
463 F.2d
Joseph,
v.
§
denied,
L.Ed.2d 1003
412 U.S.
93 S.Ct.
cert.
Cir.1972);
Meeker,
(3d
(1973);
within Section because Carsia was attempting influence a district justice, who ais state officer. A district justice has been held to be an officer of Commonwealth, is, an officer of statewide jurisdiction, for the purposes of the Appellate Court Jurisdiction Act. Gessler, Collins v. 452 Pa. A.2d 892 However, the Common- wealth’s assertion distorts the facts. There is allegation no that Carsia attempted ever to influence the justice. His bribery attempt was directed toward the police two officers. Consequently, reliance on this assertion is like- wise fruitless.
The Commonwealth finally argues that the prosecu
tion is authorized because it involves an attempt
to influ
ence state officials or
employees,
police
two
In
officers.
Bausewine,
Commonwealth v.
354 Pa.
A careful study 303, however, of section convinces us it was the legislative intent single out those officers directly responsible to government of Commonwealth of Pennsylvania its statewide sense prove who unfaithful in the exercise of the sovereignty the Commonwealth. It not the intendment to include in this section such public local officer as a borough chief police. connection, In this agree we with President * * * Judge Baldrige that: “Section 300 relates to a thing to be ‘Vote, attained or influenced by a bribe. opinion, verdict, award, judgment, speci- decree or behavior’ are police fied. A chief of has no official relation with any Those who come provisions those matters. within etc., legislators, judges, jurors, that section are who make govern- of our up legislative judicial branches ment. are the officers of the Commonwealth within They statute. purview Nothing is said this section officers. Then municipal go about we further exam- 304, 4305, ine sections 304 and dealing P.S. §§ corrupt with a solicitation and the practice corrupt officers’ ‘municipal ‘public solicitation of officers of political the State or of thereof.’ If the any subdivision had meant to legislature embrace within section 303 mu- officers, it nicipal definitely would have said so as it did Therefore, sections 304 and 305.” of de- argument fendant is merit. without
Id,.,
37-38,
In
[91 The has never charged Carsia, violating 18 911. It asserts appellee, with Pa.C.S. § (See 1-4 charged however that of the offenses n. by virtue supra), predicates prosecution for such a have been established, it court hold consequently, would have this power prosecute that has the to Attorney General the offense of corrupt organizations criminal action wherein have might conceivably charged. been The Common- argument insupportable. wealth’s 205(a)(2) The language Section and unam clearly grants the biguously engage General the in prosecutions However, under 18 911. Pa.C.S. this § must limited grant authority express be to its terms. It cannot expanded upon by this court on the mere acting speculation of the Commonwealth that the present action was one which could have involved a violation of 18 Pa.C.S. 911. only
We note that not was the not appellee charged with corrupt organizations, but that of probable affidavit support cause arrest warrant makes no mention of Moreover, possibility. this the Commonwealth did not raise argument until after the court order dismissing the informations, in its petition reconsideration. We note point, that even at that did Commonwealth not move amend the informations to include a charge corrupt organizations. find no merit in the argument
We Commonwealth’s the prosecution below was sanctioned the Common- wealth Act. Attorneys finally argues the Common- investigation
wealth Act authorized the conduct- ed BCI. We will not address this issue since it is superfluous to our decision herein. Both the court lower and this court decided this case on the that the have basis General lacked the investigation action. The BCI is irrelevant. *21 hold, therefore, that the signed by
We
information
the deputy attorney general is defective on its face because
signed
person
it was
a
had no
to
who
Musmanno,
the case. We recall the words of Justice
who
might
stated: “The
as well have
that of
signature
just
been
tourist
out his
on a
strolling
trying
penmanship
piece
in the
paper
courthouse. . . . ” Commonwealth v. Fude
255,
man,
Consequent-
257 The order proper. of the informations dismissal ly, is affirmed. lower court affirmed. Order
SPAETH, concurring opinion. files Judge, President J., statement. WICKERSHAM, dissenting files SPAETH, Judge, concurring: President admire, I and write opinion, which majority’s I join on fully why a bit more only comment separately appealable. and therefore question in is final order because, interlocutory that the order is Appellee argues “out of put not been not has the Commonwealth only The difficul- court”, court, in prosecuting appellee. it is still it too literal a upon is rests argument with ty the term “out of court.” reading of explained, As have we interpreted “out of court” must not be phrase
... In with “final.” Common synonymous it is not literally; 75-76, Orsatti, 292 A.2d 448 Pa. wealth v. appeal,
(1972),
refusing
quash
Supreme
Court
judgment
that a final
suggest
do not mean
said: “[W]e
could not
complaint
issue raised
original
on the
that, upon ap
the defendants or
awaited
have been
of the court
final
the action
judgment,
from such
pealing
assigned for error.
below,
could not then have been
....
not have afforded
But,
such a course would
obviously,
disposition
for the ultimate
expeditious procedure
Kinneman, 375
Broido v.
controversy,” quoting
entire
(1954).
also, Poster
568, 569, 101 A.2d
See
Pa.
Co.,
Beneficial [734] 735 (1975)], sufficiently final to make it appealable. Gordon, Gordon v. 491, Pa.Super. 499-500, 293 439 A.2d 683, (1983) (en banc). 687
Thus,
an order is final and appealable cannot
“[w]hether
necessarily be ascertained from the face of the decree
alone, nor
from the technical effect of
simply
the adjudica-
finality
tion. The
of an
is a
conclusion
judicial
which
.order
can
reached
an
only
be
after
examination of its ramifica-
[,]
tions
...
a
must
finding
finality
be the result of
[and]
rather than a technical construction.” Bell v.
practical
a
Co.,
Consumer Discount
225, 228,
465 Pa.
348
Beneficial
734,
v.
(1975),
citing Cohen
Industrial
A.2d
735
Beneficial
Loan
541,
Corp.,
1221,
337
69
U.S.
S.Ct.
Consistent with this
a
analysis,
variety of orders have
been held to be final and appealable
though they
even
did
See,
T.C.R.
literally put
litigant
not
“out of court.”
e.g.,
Cox,
Inc. v.
331, 337,
Realty,
472 Pa.
372 A.2d
724
(where
(1977)
order dismissing complaint
prejudice
with
did
put litigant
not
out of court because counter-claim had been
filed, order held final because it had “practical ramification
completely depriving]
...
of his
litigant
day
[of]
Commonwealth v.
concerned.”);
court so far as his claim is
Orsatti,
72, 76,
(1972) (where
448 Pa.
292 A.2d
dismissing
order
to amend
preliminary objections with leave
complaint
practical
litigant
had
effect of
denying
oppor-
tunity
litigate
damages,
claim to
order held final because
“as to the
[money
precluded
claiming,
Orsatti was
from
Bell v.
court.”);
Consumer
put
was
out of
he]
Beneficial
Co.,
supra
Discount
(order
at
A.2d
465 Pa.
at 736
class
denying
possesses sufficiently practical
certification
aspects
finality
appealable
though
may
even
order
named
in court and
alter
plaintiff
leave
does not
cause of
Co., action.);
Donegal
Freeze v.
Mutual Insurance
Pa.Super.
(1982) (en banc) (order
AND this 1st day TO on consideration of the defendant’s hearing, after and dismissed, petition, appearing the information it does Pennsylvania the Office of the alleged to or investigate prosecute not have the offense. criminal puts
This order the Commonwealth “out of court” certainly its claim of under 71 Pa.C.S. regarding statutory authority Moreover, 732-205(a)(l) the order were we to hold to effect would to interlocutory, practical deny be opportunity litigate Commonwealth the the merits of its order, for authority, by only claim to such terms of the attorney may pursue prosecution. a local district See Fire Brennan v. General Accident & Assurance Life 288, 291, (1982) 453 A.2d Corp., Pa.Super. (“Sometimes literally put appellant an order will not out it as a appealable practical of court but still will be because claim.”) be unable to his appellant present matter will further underlying policy Such a result would not piecemeal litigation promot- rule of finality preventing Gordon, for it ing economy, supra, see Gordon v. judicial this issue litigate would force the Commonwealth to only again. is, for all
Accordingly, practical since “out of court” the trial court’s order purposes, put regarding its claim under the Commonwealth
Act, I conclude that the order is final under Pa.R.A.P. 341(c).1
WICKERSHAM, Judge, dissenting: I granted petition would reverse lower court which filed Bruce by appellee quashing Carsia the criminal infor- mation. As the Attorney argued: General,
The
as chief law enforcement officer
Commonwealth,
had the authority
Carsia,
law,
Bruce
an attorney at
attempting
bribe
officers
fix a
police
hearing.
two
preliminary
prosecutorial and investigative powers of the Attorney
General as determined
decisions of the
Pennsylvania
Court,
Supreme
are
broad
vast. The lower court
by concluding
erred
otherwise and
the crimi-
by quashing
nal informations filed
Attorney General.
*24
General was
investigate
authorized to
and prosecute
Carsia
virtue of the Commonwealth
Attorneys Act. Carsia’s actions of
fix a
trying
prelimi-
to
nary hearing
attempt
to influence or
from
benefit
influencing
of a state official or
Addition-
employee.
ally, Carsia’s actions amount to a
18
violation of
Pa.C.S.
911 (corrupt organizations). Finally as a licensed attor-
law,
at
a
ney
Carsia was
state official as that term is
defined in the
Commonwealth
Act.
appellant
contrary. They simply
1. The
cites are not
cases
stand
proposition
'practical aspects’
for the
that when an order is not "in its
Gordon,
sufficiently
appealable,"
supra
final to make it
Gordon v.
293
500,
687,
Pa.Super.
citing
at
439 A.2d at
Bell v.
Consumer
Beneficial
Co.,
litigant
supra,
procedure
Discount
because some other
enables the
merits,
general finality
to be heard on the
then the
rule will render the
See,
States,
e.g., Flanagan
unappealable.
order
et al. v.
U.S.
United
259,
1051, 1055,
288,
(1984) (order disqualify-
104 S.Ct.
79 L.Ed.2d
ing
pretrial
counsel
lacks “critical characteristics”
that render
order
because,
reasons,
immediately appealable
among other
the claim “is
.”);
danger
becoming
upon
moot
no
conviction and sentence...
(court
Riggins,
quashes
In Re
435 Pa.
I agree.
John Superior Pennsylvania. Court of
Submitted Dec. 1984. April
Filed 1985. *25 Appellant
1. Brief for at 8-9.