*3 J., JONES, EAGEN, O’BRIEN, Before ROBERTS, C. POMEROY, NIX MANDERINO, JJ.
OPINION MANDERINO, Justice. if and under what circum-
This case raises issue Pennsylvania may super- General of stances a to conduct proceed a sede district attorney. district superseded prosecution county Schab, Philadelphia police- I. 31, 1975, Martin August On the Sip’N Majewski Frank man, Anthony shot and killed The District in Philadelphia. Restaurant Steak Bar and that and concluded killing investigated office Attorney’s killing was because the had violated the law penal Schab not an excusable homicide. its conducted office
Subsequently, investiga- facts uncovered investigation. own The were sub- tion, cooperated, in which the District Attorney Attor- the District as those uncovered stantially same decided Nevertheless, office. ney’s that should be prosecuted. Schab J. Brad- then to the Honorable Edward request submitted Pleas of of Common ley, of the Court Judge President Judge from request a written Philadelphia seeking County, pursuant to intervene Bradley asking Code, April Act of Section 907 of Administrative Bradley IX, Judge 1929,. P.L. art. 71 P.S. § refused. the District General then informed prosecuting he was him for the superseding purpose Administra- I. 904 of the
Martin Schab to Section pursuant *4 Code, tive 71 P.S. 294. preliminary was and a day
Schab arrested on the same on Decem- was scheduled hearing Judge Cavanaugh before the 31, that ber 1975. was informed Judge Cavanaugh Attorney was the contesting District parties he both prosecution to conduct the and ordered right 31, present him 1975 before on December appear order an and on the issue. In and briefs arguments that 14, 1976, Cavanaugh ruled Judge dated January the District supersede could not Attorney had control of this instance and that the district 1976, 16, Judge Cavanaugh January On prosecution. discharged being after informed that District Schab evidence at present preliminary would no then asked this Court to hearing. 23,1976, assume the matter. On jurisdiction January jurisdiction tolling Court an and accepting entered order provision Pa.R.Crim.P. 180-day General contends he has In this appeal, power supersede both the common law statutory He further contends that the Attorney. only ques- District tion he exercises this is whether or not power at issue once essence, he abused his discretion. In [the General] General’s contention is that he may supersede the conduct a criminal investiga- tion prosecution or criminal at long time so act not an abuse of discretion.
We turn first the Attorney General’s contention that he has the common law to supersede the District Attorney. This contention finds strong support in series Pennsylvania cases. ex Commonwealth rel. Minerd v. 30, 524, 17, 325 Pa. A. Margiotti, (1936), this Court stated:
“We conclude from the review of decided cases and
historical and other authorities that
is clothed with
Pennsylvania
powers
and attributes
which enveloped Attorneys
law,
General at common
in-
cluding the
to .
right
set aside the
district
attorney when
the attorney general’s judgment
such action may be necessary.” (Emphasis added.)
This
repeated
statement was
by the
in In
Court
Re Investi-
gation by Dauphin County
Grand
Jury, 332 Pa.
A.2d
783 (1939), Appeal Margiotti,
365 Pa.
60 as as well Margiotti, ex rel. Minerd
Commonwealth reasoning, its were adopted latter decisions which these “enveloped” an attor- premise power on the that such based this law and the General of at common general ney this power. was with the same As Commonwealth clothed has been criti- reasoning severely Court has recognized, cized, only seems to be the jurisdiction and Pennsylvania of a District which has approved powers. common law on an See based 602, 327 Mirachi, A.2d 53 Packel v. to be this line of decisions
We find in reasoning controlling not be here. they should erroneous, and therefore an analysis conclusion on The Court in Minerd based its out of which England, in King’s of the powers The attorney general. evolved the modern office Crown, chief law was the King’s attorney, appointed by all of the England. managed in He enforcement officer suits, affairs, of all including the legal prosecution Crown’s civil, in which the Crown was interested. both criminal and deputies, right appoint The also had King’s and could at replace over which he had control complete 23-24, A. at at 527. question time. See 325 Pa. super- to the common law of an at on his own motion never arose sede District reason that elected simple prosecuting common law for the political institutions. England's officers were unknown system, drawn between that analogy rightly No can system and the attorneys general, one of deputized of elective since office has existed Pennsylvania 3, 1850, May created the Act District was 7701). (now P.S. P.L. 16 P.S. § the function was perform elected Attor- performed by Deputy prosecutor previously local of the new office More the duties specifically, General. ney follows: were defined as indictment, sign
“The elected shall all bills officer so prosecutions in court all criminal and other conduct . . which arise the name of the Commonwealth . elected, and perform for which he is all duties county performed by deputy attorney which now law are to be *6 . . .” . generals a the district was made constitutional attorney XIV,
officer. Pa.Const. Art. now in (1874), Pa.Const. § IX, Art. 4.§
Despite
fundamental
in the method of select
change
prosecutor,
local
ing
despite
and
district attorney’s
officer,
status
a constitutional
our Court reasoned: Penn
sylvania adopted
the office
General as it existed
in England; in the
Century England’s
18th
Gener
al had the
power
supersede prosecuting
there
attorneys;
fore, Pennsylvania’s Attorney General has the same power.
See, e. g., Commonwealth ex reL
Margiotti,
Minerd v.
supra,
22-31,
We no adhere to this view. because Simply Attorney General had the common law his replace deputies own does not justify the conclusion that he now has the right to supersede an elected District Attorney, an officer unknown common It law. would be incongru ous place district position of being responsible to the electorate for the performance his duties while was, actual over performance control his effect, To Attorney General. countenance such a separation and control undermines self- accountability government centralization, and promotes see Commonwealth v. Fudeman, (1959) (Mus 152 A.2d 438-40 manno, J., dissenting), of precisely law enforcement — approach rejected in Pennsylvania by statute in 1850 and constitutionally
On the basis of the is our foregoing, it that the Attorney General of no pow- has common law Pennsylvania er to supersede at his discretion a District Commonwealth.
Having determined that has no common powers law to supersede, discretion, at sole office of district we attorney, turn to the relevant statutory provisions to determine if and under what circumstances the office. attorney’s district can two sections of the effect to give to reconcile and task is
Our P.S. Code, 904 P.S. § Administrative [71 294] [71 in full: 904 provides Section § 297]. power, Justice shall have Department
“The of the Governor: be, approval shall its duty violations, violations, alleged investigate any (a) To its come to of the laws of the Commonwealth notice; means, as bemay such steps, adopt take such
(b) To the laws of Common- to enforce reasonably necessary wealth.” part: in relevant
Section provides juris- having in the district judge, “When the president *7 court of any before proceedings, diction of ses- quarter or terminer, jail delivery, general and oyer Attorney the Commonwealth, shall sions, request in this that, in forth so, writing, setting General to do one for the Common- proper is a the case judgment, au- hereby General is intervention, the wealth’s special a employ to retain and empowered and thorized necessary, properly he deem as attorneys, or attorney proceedings, in such the represent Commonwealth alleged the offenders charges, prosecute to investigate and employed, so retained Any attorney, the law. against attorney county district shall the supersede arise, investigate, and shall cases may which the case or he to which case or cases to trial the bring prepare, bemay assigned.” of the Administrative
In two sections these construing that effect to both gives manner Code, we in a must do so intended Legislature presume for we are provisions, 1921(a), 1 Pa.C.S.A. be effective. §§ the entire statute to 1922(2). in which the provision only is the
We note first that § explicit General Assembly gave General attorney. possible a One district authorization to supersede therefore, 907 deline- sections, is that § of these two reading the only ates method which the can ever supersede interpretation a This attorney. district argu- 20, 1939, finds of March ably support Act P.L. “repealed where the General Assembly absolutely” the Act 30, 1938, P.L. on July which had conferred discretion, supersede, at his power county the District of a at of an any stage investi- gation proceeding pending county’s criminal least, indicated, courts. This at a legislative action in which disapproval system could, at his pleasure, displace an elected official in the execution of his governmental responsibility. We could reasonably Legislature conclude that believed that the elective process, well as a presi- 907’s authorization of § cases, dent judge to intervene in were appropriate sufficient checks on the office of District Attorney.
Another 904 and possible construction one §§ General, urged upon us is to hold 907 but one prescribed avenue of and the supersession, General can will supersede attorney a district at providing his decision to do so is not an abuse discretion. Under view, argues, legis- appellant lative mandate to laws of the Commonwealth enforce the includes the despite district limitation of seeming view,
We reject both of these constructions. our *8 neither represents a of the two proper accommodation statu tory the provisions important they or interests attempt promote. 907, the which only expressly Section section authorizes supersession, to the limited situation of a speaks president judge that the become requesting attorney general involved in a in proper prosecutorial case a matter. We reject the position that 907 only the instance in represents § which the Attorney supersede General can ever a District Attorney. That construction would insufficient consid give eration to 904, empowers Attorney General the “to § take such steps, means, such be adopt reasonably necessary to the a enforce laws of the If Commonwealth.”
64 warranted was Attorney General arose where
situation was a attorney a district superseding in that believing laws, help- he would be those enforcing means of necessary by president initiated only if could less General. Attorney by and not judge in that hand, the notion reject § we the other On to supersede who desires Attorney an General limits way no Legislature our drafting Attorney. § a District branch judicial a member whereby a scheme enacted who Attorney an elected a check on could act as responsi his prosecutorial not out carry not or would could judge requested a president Once bilities. matter, then only his offices in a to involve
General a that 907 evidences We believe was his power plenary. § into local entry General’s belief that legislative circumspection, should be exercised law enforcement argument negates and that § discretion, his with the narrow of an abuse exception that is untrammelled. a district supersede judge may that a president Although provides § General initiate a that request that the procedure is silent on legislation District Attorney, General if the must use under his duties to perform desires to initiate action order properly can be 904. We believe that § § § if the holding accommodated by by presenting he must do so initiates action under § cannot we to the Because of president judge. petition § action. to initiate right to the deny Attorney General we cannot allow the Because judge. than the judge president initiate action before a other a final decision, event, would be judge’s The president review. judgment subject appellate authorization, whether judge’s Requiring president president judge action is initiated defer- only giving proper is the means of General’s petition, is no intent there Although ence to the legislative case, holding pre- our “judge shopping” evidence of *9 that possibility whereby vents General could circumvent and undermine the possibly authority judge contained in president president Since § judge’s determination on the issue of is subject review, to appellate given effect is to the proper under 904 “to take such obligation steps, and means, such adopt as to en- reasonably necessary Commonwealth.” force the laws of the proper issue remains to the standard and the burden of that should be proof applied by president court, as well as judge, reviewing presi the appellate dent to allow or judge’s deny decision believe, a District We in view of the Attorney. fact that the District and constitu statutorily level, for law enforcement at the local tionally responsible General must establish cause for good is not a supersession. Supersession “reasonably necessary [step] enforce laws the Commonwealth” unless it is established, after a consideration of all the circumstances, that the District abused his discretion. Our hold ing therefore does no violence to 904 of the Administrative Moreover, Code. we think significant expressed prefer ence of has the General retained for Assembly nearly half a this vesting the statute discretion in century president judge (§ 907) rejecting provision but giving the Pa.Leg.J. 12-15, General the same discretion. See 414-15, 465-68, 62 (1938); Pa.Leg.J. 38— insulating Attorney’s the District office from degree outside intervention, we do no more than confirm the legis lative judgment that in law accountability responsibility enforcement possible. should coexist to the fullest extent case,
In this not seek appellate General did review of Judge President refusal Bradley’s authorize intervention and did not initiate a formal before the petition president Thus, judge. no has been hearing held before the president judge in order to determine whether the Attorney General is able to establish good cause for the supersession. The lack of any petition or hearing president before the *10 not since General did judge is understandable thus of decision. We deem it present have the benefit our afford the an opportunity to General appropriate supersession president to initiate a for before petition judge. Judge Cavanaugh order of is vacated and
Accordingly, Cavanaugh action before to the of Judge relating issue in this without supersession prejudice case is dismissed desired, if proceed, General before petition for within president judge by filing of this thirty filing opinion. of days J., O’BRIEN, this EAGEN, J., in join opinion. C. J., NIX, POMEROY, J., in which separate opinion filed a joined. of
ROBERTS, J., in dissenting opinion support filed a reversal. in the decision of
JONES, J., former C. did not participate this case. of reversal.
ROBERTS, dissenting in Justice, support restaurant, Philadelphia Martin On in a August officer, fired several shots into Schab, Philadelphia police shots, These Majewski. side of Anthony back and caused his death. lungs, perforated Majewski’s heart Philadelphia, on the basis of The of District Attorney was an excusable the killing concluded that investigation, case. homicide; prosecute he has refused of the Attor- the office investigation, week After a four the same informa- examining General of ney Pennsylvania, Philadelphia, con- tion District available case of excusable established not a cluded that the evidence of murder. homicide,- rather a facie case prima but killed civilians twenty-six was one of Majewski Anthony comparison, Philadelphia By by police officers Philadelphia, four more than populous New York times City, in 1974. were killed The nineteen civilians one of that, every in each and asserts Pennsylvania Police, the shootings by Philadelphia twenty-six homicide. justifiable has found Philadelphia also asserts that statements public The indicated shooting Anthony Majewski witnesses to the murder, was and that the District killing Attorney’s that the failure to raises doubts about prosecute impartiality on both sought law enforcement. the deci- statutory common law and authority to prosecute sion of the District not Martin Schab. Mr. Justice Manderino concludes that the *11 has neither common law nor independent General Attorney under Section 904 of Administrative authority statutory but (1962), only P.L. 71 P.S. Code of under his new supersede interpretation limited to authority 1929, 71 Administrative of P.S. of 907 of the Code Section Mr. Justice Manderino also concludes 297. The opinion remanded, that the should be requiring that the proceedings Judge the President of Phila- prove General to to Attorney his discretion that the District has abused delphia Attorney this homicide. refusing prosecute to that the of Mr. Justice concludes opinion Pomeroy should be to permitted General District it be shown that the long so as cannot Mr. Justice General has abused his discretion. District to require would remand and Pomeroy of the Attorney show an abuse of on the part discretion prosecution. this initiating unwarrant- imposes Manderino of Mr. Justice to authority proceed ed on the Attorney restraints virtually impossible with a standard prosecution setting of interest when, here, even conflicts satisfy, apparent authority essential and uneven law enforcement make such justice. confidence in administration preserve public whether the Instead of a court determine requiring discretion, ap- proper has abused his proach permit proceed would as this prosecution believing, if he has a reasonable basis for considera- establishes, improper but for that clearly record instituted. have been tions, would prosecution and Mr. Mr. Justice Manderino Moreover, opinions evil — n jurisprudential from the same suffer Pomeroy Justice unjusti- unnecessary remand impose for opinions both the Au- prosecution this upon long-postponed fied delay remand is No Anthony Majewski. shooting gust, proposed by of the standards under either necessary clearly the record demon- remand, because for opinions been met. Because already has that each standard strates stultifies unnecessarily delay new judicially-created I justice, of criminal effective administration prompt dissent.
I MORE AND PRODUCES UNNECESSARY REMAND IS ISSUE DELAY IMPORTANT OF THIS Manderino, to allow remanding Justice of Mr. The opinion that the District to establish clearly The record discretion, unnecessary. has abused his has abused discre- establishes the District victim was shot tion this case. The refusing prosecute side, presence several times in the back and *12 known; eye- the of the assailant is eyewitnesses; identity witnesses believed that the was shooting unprovoked; General, evidence, the the deter- upon reviewing a prima Nothing mined that facie cáse of murder existed. more is to show that the District has required abused his and that prosecution discretion should have been instituted. Thus the standard Mr. opinion under of Manderino, Justice the record is the complete permitted proceed prosecution. General should be to with the Moreover, Mr. Justice Pomeroy, proposing the whether has to remand to determine General to is choosing prosecution, abused his discretion in institute has already likewise unwarranted. General that, basis for had the believing established reasonable
69 officer, perpetrator of incident not been a police prosecu- tion of this homicide have been commenced would rather Further, than for more than delayed years. two Attor- that trust ney public has shown convincingly prosecution police of civilians deteriorated shootings has Attorney’s because of steadfast refusal to prose- cute such firmly homicides. record indicates been proposed standard Mr. Justice has met and Pomeroy permitted proceed General should to prosecution.
All accomplish that a remand these will proceedings more case to delay bringing Twenty-nine trial. months have since the already elapsed killing Anthony Majewski. This Court has all the record it to decide needs whether should be prose- allowed cute this case under either opin- standard advanced remand; ions for by remanding, instead now deciding trial, whether may proceed Court to suspend continues General’s efforts to bring public trial this case importance. of immediate
II THE ATTORNEY NOT BE GENERAL SHOULD
REQUIRED TO THAT THE PROVE DISTRICT
ATTORNEY
HIS DISCRETION
ABUSED
At
law,
common
state
author
attorneys general had broad
Commonwealth ex
ity
supersede local prosecutors.
See
rel.
Minerd v.
Margiotti, 325
(1936);
Pa.
524
188 A.
Lehman,
Commonwealth v.
(1932);
164 A.
People Gibson,
v.
Common
53 Colo.
“Investigation and law its and power, shall have the Department Justice be, of the Governor: shall with the duty approval violations, violations, (a) alleged To investigate any come may of the laws of the Commonwealth notice; its means, as may take such
(b) adopt To such and steps, of the Com- enforce laws reasonably necessary monwealth.”
In Commonwealth v. Margiotti, ex rel. Minerd supra, Court held that authorizes the General Section 904 reviewing After Attorney. in this and of the office of origins powers Attorneys Commonwealth with those along other jurisdictions,2 this Court concluded: 1929, 71 1. Section 704 of the P.S. Administrative Code provides: “Attorney General Governor, legal shall be the of the advisor duties, performance law officer of in the his official and the chief Commonwealth, perform powers He shall exercise such duties such imposed upon the Consti- now or hereafter be in or him vested tution and laws of this Commonwealth.” Section of the 71 P.S. § Administrative Code of provides: shall, Department subject “The inconsistent of Justice provisions contained, powers act continue to exercise perform imposed upon in and duties vested General, Department Department, of Justice.” quoted Section 904 is in full in text. law, officer of attorney general 2. At common law was chief responsi- attorney general the state. The duties bility “[b]y information, included persons bring accused certain classes Min- of crimes and ex rel. misdemeanors to trial.” Commonwealth
71
clothed
the
Pennsylvania
“the
General of
is
and
which enveloped Attorneys
attributes
powers
law,
at common
criminal
including
right
investigate
the
to
acts, to
in
institute
the several counties of the
proceedings
Commonwealth,
indictments,
to
the
sign
appear
before
in
and
grand
testimony,
appear
and submit
court
jury
in any
behalf,
the
try
and,
cases on
Commonwealth’s
all
these activities to
set
the
supersede and
aside
when
district
in the
General’s
judgment
such action
necessary.”
added). This
30-31,
(emphasis
531
Id. 325
at
188 A. at
the
Court Minerd
rejected
argument
in
in 1936 specifically
Manderino;
of Mr. Justice
opinion
forth
put
today
1929,
Code of
907 of the Administrative
Section
namely,
Margiotti,
17, 22,
524,
(1936), quoting
erd v.
325 Pa.
188 A.
526
Miner,
People
(N.Y.)
(1868).
v.
2 Lans.
396
powers
The
framework of
of
General at common
incorporated
system
law was
govern-
into the
of American state
ments:
“Upon
organization
governments
most,
country,
of
if
all,
system juris-
not
of the commonwealths which derive their
prudence
England adopted
attorney general
from
the office of
as it
England
existed in
.
.
Chicago
Co.,
638,
v.
Dummy
Hunt
(1887).
Horse &
R.
121 Ill.
broad
to supersede.
Minerd,
Manderino,
despite
of Mr. Justice
controlling
jurisdiction
law of this
and the
clearly
since
it,4
building
decisions
creates an
many
upon
today
unprece-
Here,
dented
of this
scheme.
where
interpretation
statutory
so fundamental
statutory interpretation
affecting
a doctrine
stare deeisis deserves
involved,
greater
v.
Runyon McCrary,
respect.
See
U.S.
S.Ct.
R.
Erie
Co.
2586, 49
Tompkins,
(1976);
L.Ed.2d
*15
64,
817,
(1938).
58
3.
907
Section
“Special attorneys in criminal cases
any
having jurisdiction
judge,
president
in the district
When the
terminer, gener-
oyer
proceedings,
and
before
court of
criminal
al
Commonwealth,
sessions,
jail delivery,
quarter
shall
in this
or
that,
so, writing, setting
request
to do
in
forth
the
proper
judgment,
for
case
one
the Commonwealth’s
in his
intervention,
is
hereby
authorized and em-
is
attorneys,
special attorney
employ
powered
or
retain and
may
necessary,
represent
properly
Commonwealth
he
in such
deem
investigate charges,
prosecute
proceedings,
and
and to
Any attorney,
alleged
employed,
against
so
and
law.
retained
offenders
county
attorney
shall
the district
arise,
investigate, prepare,
may
and shall
which the case or cases
assigned.
he
bring
cases to which
to trial the case or
and
He shall take
by
by
required
taken
law be
the oath of office
attorneys,
powers
with all the
be clothed
district
and shall
by
imposed upon
subject
compensation
law. The
them
to all the liabilities
necessary
rendered,
expenses
in-
for services
attorney
attorneys,
shall be fixed
the Attor-
such
curred
ney General.”
1,
289,
Proceedings
Jury
County
No.
Pa.
2
g., Dauphin
332
Grand
E.
3,
County
Jury Proceedings No.
(1938); Dauphin
332
783
Grand
A.2d
330,
358,
Appeal,
(1938); Margiotti
Pa.
75
365
A.2d
73
of Minerd
and the
decisions
many
upon
repudiation
not
because it
only
departs
which it is relied is unfortunate
decisis, but also because the end
of stare
from
principles
unwise,
is
of an
imposition
unnecessary,
result
restraint on the fair and
enforcement of
unjustified
equal
fair,
order-
justice. Supersession helps preserve
and uniform administration
ly,
justice and should be
ABA
encouraged.
Justice,
See
Standards for Criminal
Stan-
dards
to the Prosecution Function and the
Relating
Defense
Function,
Draft,
The Prosecution Function
(Approved
2.10
1971).
implicat-
instances where the District
Commonwealth ex rel. Minerd v.
offense,
ed in an
g.,
e.
17,
A. 524 (1936),
Margiotti,
public
325 Pa.
188
where the
Examiners,
786,
Cal.Rptr.
Medical
Cal.3d
Moreover, by requiring Attorney General to show an abuse of discretion the District Attorney, opinion of Mr. Justice an compels Manderino into the inquiry facts the decision of the District surrounding Attorney not to prosecute. While some circumstances such an inquiry the internal may open up operations the Office of the much-needed public such a scrutiny, pre-trial may also inquiry prejudicially expose the facts involved in the yet uncharged offense, diminish the trial, of a fair possibility and possibly require changes venue and create other administrative complications.
The more appropriate focus a case involving superses- sion is whether the General has a reasonable basis that, for believing considerations, absent improper prosecu- tion would have been commenced. See Commonwealth ex rel. Minerd v. Margiotti, supra; Margiotti Appeal, supra; ABA Justice, Standards for Criminal supra at 1.2 and §§ 2.10. The District has refused to prosecute this homicide evidence despite compelling that the slaying was unlawful. The General has established basis that, for believing in the absence of the steadfast refusal of the District prosecute police shootings of civil- ians, the prosecution of the killing of Anthony Majewski would have been initiated. The basis for this belief is reasonable. Thus is a “reasonably necessary” means of enforcing laws of this Common- wealth within the meaning Section 904 of the Administra- tive Code of P.S. should be permitted.
Supersession is important where, here, especially prose- cutorial inaction creates public mistrust in local officials. Public trust in the District prosecuting police shootings of civilians has deteriorated because the District refusal to Attorney’s prosecute this kind of homicide. The record with indisputable establishes the clarity deliberate refusal of continuing the District prosecute
a murder which would have been ordinarily prosecuted. Supersession by the therefore necessary in this case to maintain confidence in the public integrity law enforcement and public justice.
Ill THE FOR REMAND THE OPINIONS FRUSTRATE
PROMPT AND ORDERLY ENFORCEMENT OF
THE LAW CRIMINAL The record the District At- convincingly establishes has abused his discretion and the torney Attorney General has acted Neither the reasonably seeking prosecution. General, who before this Court appeared twenty- two months this case to ago requesting authority bring trial, Commonwealth, nor the citizens of this who have taken, waited even for longer proper measures to be should subjected now creat- continuing, unnecessary delay ed for remand. opinions
One overrules the line of this opinion unjustifiably long Court’s cases authorizing Attorney General to commence have the prosecution. opinions Both unfortunate effect of further General’s effort frustrating pre- serve the of criminal integrity justice. administration continue the absolute immu- Equally disturbing, opinions heretofore nity suspected activity granted by inaction from 1975 1977 of the then District Attor- through The further of this ney. postponement excessively delayed criminal prosecution casts a dark the fair and prospect upon orderly justice administration of criminal which no Ameri- can should be to endure. community compelled
I would reverse the order of the court of common pleas permit proceed prosecu- tion forthwith.
POMEROY, Justice, separate opinion. I with the of Mr. respectfully disagree plurality opinion view, Justice my MANDERINO. it misconstrues Administrative Code of 19291 and fails to present adequate reasons for overruling many prior Court’s decisions on question supersession. Code,
Under
Section 704 of the
P.S.
General is declared to be “the chief law officer of the
Commonwealth,” and he has the power, under
904 of
Section
Code,
investigate
violations,
P.S.
“[t]o
*19
violations,
alleged
of the laws of the Commonwealth which
come to
may
notice,” and
take such steps, and
[his]
“[t]o
means,
such
adopt
as
bemay
reasonably
to en-
necessary
force the laws of the Commonwealth.” I believe that this
broad
language adopts
common law
of the
powers
Attor-
ney
subordinates,
see Common-
wealth ex rel.
Margiotti,
17, 21-31,
Minerd v.
325 Pa.
188 A.
(1936);
524
Margiotti
330,
365
Appeal,
In addition, I cannot agree with the conclusion plurality’s that the General has in fact limited Assembly power supersession. In the first the creation place, of the locally elected office of district attorney by 3, the Act of May 1850, P.L. 1, 16 (1956),together § P.S. 9952 with the grant § power district all attorneys “perform the duties which now by law are performed to be by deputy attorneys general,” id., does not to me indicate a legislative intent to create autonomous local law enforcement bodies. Nor does the district attorney’s status as a officer, constitutional Pa.Const. IX, art. 4, reflect intent, similar since the Constitution is altogether silent on the question of the district attorney’s powers and duties. Mr. Justice MAN- DERINO’s reliance on these provisions as limitations on the Attorney General’s supervisory power an represents adoption of constructions that have been rejected by 9, 1929, April IX, amended, Act of P.L. art. as 71 P.S. 291 et §§ (1962 seq. Supp. 1977-78). & Fudeman, 396 Pa. v. Commonwealth Compare
Court. 211, 4 denied, 902, 80 S.Ct. 428, cert. U.S. 152 A.2d 24A-77, A.2d 428 id., 396 Pa. at (1959), L.Ed.2d interpreta those view J., my (Musmanno, dissenting). the Attor both because rejected have been properly tions of the Common chief law officer status as ney General’s to enforce attorney’s duty a district wealth and because of all of in which duty the laws of the Commonwealth —a live, an have citizens, they matter where no Pennsylvania’s interest. that Section agree I cannot
In the second place,
a limitation on the
represents
Administrative Code
statute,
it,
I
This
read
supersession.2
Justice
Department
means
another
provides
of the laws of
violations
alleged
notified
be
may
904(a), supra,
Code
see
Commonwealth,
Administrative
(“special
counsel
in which outside
the manner
and regulates
This
Department.
employed
attorneys”)
operates
this section
the contention that
rejected
Court has
Lehman,
309 Pa.
limitation, see Commonwealth
as a
*20
v. Margiot-
ex rel. Minerd
Commonwealth
(1932);
Whether the
has
Attorney General
abused his discretion in
seeking to
the district
supersede
has not been
case,
determined
and indeed cannot be determined on
the record
us.
arguments
before
before the court below
were centered on the Attorney
General’s
non,
vel
and the
allegations
complaint charging mur
der have never been tested at a
preliminary hearing.4
subject
General’s “action should not be made
court approval
initially since the matter
is one within the
functions
responsibilities
executive branch of
government. A sufficient check
use of the
against arbitrary
power of
can
found in
requirement
”
the grounds for the action be
on the record
.
.
placed
.
ABA
on
Project
Justice,
Standards
for Criminal
Standards
Relating
2.10(a),
the Prosecution Function
Commentary,
at 75 (Tent.Draft,
1970).
law,
In view of our case
such
reasons should be filed with the lower court.
In re Dauphin
Grand
County
Jury Investigation
(No. 3)
Proceedings
re
[In
Shelley],
358, 367,
332 Pa.
A.2d 809
If
the district
attorney then chooses to contest
the Attorney General’s
action,
so;
he should of course be able to do
although the
conflict is
officers,
one between executive
legal
standard is
involved,
the authoritative
of which
application
is for the
not,
course,
3. This
powers
does
mean that
Jackson,
are boundless. See Matson v.
368 Pa.
NIX, separate opinion. in this joins
Argued 1977. Sept. March Decided precise procedure attempted spell out the 5. I have not here sort; it be in a of this no doubt should dealt should followed case procedure promulgated As in a rule of this Court. with indicated in the text, however, recogni- procedure would involve tion of the Attorney upon of the filing in the court of of record the (or thereof) president judge statement pleas common with the grounds supersession, notice thereof to the district for county, opportunity in that officer to contest and an to do so. if he chooses the action of the that, plurality opinion of Section 907 of the states view Code, (1962), supersession on a decision Administrative 71 P.S. 297 judge president the court of common only should be made pleas cases, many may county. be wise a limitation of the While such nothing in importance question, find given I can judge judge except president requires that no Section 907 that entertain a matter.