Com. v. Bryan

• Decision Date: 24 February 2003
• Citation: 818 A.2d 537
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. William L. BRYAN, Appellee.
• Court: Pennsylvania Superior Court

818 A.2d 537

COMMONWEALTH of Pennsylvania, Appellant, v. William L. BRYAN, Appellee.

Superior Court of Pennsylvania.

Argued November 7, 2002.

Filed February 24, 2003.

Stuart B. Suss, Asst. Dist. Atty., Norristown, for Com., appellant.

Paul J. Ryan, Lock Haven, for appellee.

BEFORE: DEL SOLE, P.J., McEWEN, P.J.E., HUDOCK, JOYCE, STEVENS, TODD, KLEIN, BENDER and GRACI,¹ JJ.

OPINION BY DEL SOLE, P.J.:

¶ 1 This is an appeal from an order which dismissed with prejudice a charge of driving while under the influence of alcohol filed against Appellee. This dismissal was made after the trial court sua sponte inquired about the delay in this matter. The court issued a rule to show cause why the charges should not be dismissed and the Commonwealth responded with reference to a non-prosecution agreement between Appellee and the arresting police officer. The court thereafter issued its order of dismissal. The Commonwealth on appeal argues that Appellee was not "entitled to the dismissal" where the agreement was executed without knowledge or consent of the district attorney, where Appellee did not comply with the terms of the agreement and where the trial court acted sua sponte. Appellant's Brief at 4. We reverse because the trial court erred in acting sua sponte and because the remedy it fashioned was not appropriate under the facts of this case.

¶ 2 On October 1, 1999, the police chief of the Avis Borough Police Department, Paul Polen, stopped Appellee's vehicle after observing erratic driving. When Appellee failed field sobriety tests he was arrested and transported to a local hospital where he refused blood testing. While at the hospital, Appellee spoke to Chief Polen and suggested a "deal" in which Appellee would make controlled drug purchases at his place of employment and introduce undercover people into his workplace, in exchange for which Officer Polen would refrain from filing charges. Chief Polen drove Appellee to his home from the hospital, contemplated the offer and advised Appellee to "sleep on it" and to call the station the following Monday if he still desired to make this "deal."² Appellee later contacted Chief Polen who introduced Appellee to Gordon Mincer, a narcotics agent with the Pennsylvania State Attorney General's Office. An agreement was reached whereby the Chief would not file driving under the influence charges if Appellee, working with Agent Mincer, successfully made or arranged for the controlled buy of certain controlled substances. This agreement was reached without the knowledge or consent of the Clinton County District Attorney's office.

¶ 3 When Appellee failed to cooperate as agreed, a criminal complaint was filed against him on March 20, 2000, charging him with driving while under the influence of alcohol. A plea agreement was reached and on August 14, 2000, Appellee appeared in court to enter his plea. During these proceedings the court, apparently with regard to the delay in the matter, remarked "Where has this case been?" N.T., 8/14/00, at 3. The district attorney was permitted to approach the bench and a discussion was held off the record. Thereafter the court issued a rule upon the Commonwealth to show cause why the charges against the defendant should not be dismissed as a "result of the inordinate delay in filing of the criminal charges in this matter." Id. at 4.

¶ 4 At the hearing which followed, Chief Polen testified regarding the deal he made with Appellee in which Appellee agreed to make controlled buy drug purchases. The chief testified that had Appellee fulfilled this obligation charges would not have been filed, but Appellee never followed through and the charges were eventually brought. He further testified that this agreement was never consented to or discussed with or approved by the Clinton County District Attorney. The Commonwealth argued to the court that Appellee was not prejudiced despite the delay in this matter. The court ultimately issued its ruling dismissing the prosecution. It offered the following rationale for its ruling:

While technically no motion has been filed by Defendant under Rule 315 [now Rule 587], we are so disturbed by the actions of the arresting officer in this matter that we believe dismissal of the charges is in the interest of justice solely for the purpose of discouraging similar conduct in the future. We are concerned this case may be only the tip of the iceberg and that prosecutional negotiations are being made not by the District Attorney but by individual police officers. We find it highly inappropriate that decisions regarding the continuation of prosecutions are based upon subjective determinations by the arresting officer with respect to defendant's conduct unrelated to the crime under investigation.

Trial Court Opinion, 9/21/00, at 2-3.

¶ 5 We begin by noting that the trial court properly recognized the invalidity of the non-prosecution agreement made by Appellee and the police. In Commonwealth v. Stipetich, 539 Pa. 428, 652 A.2d 1294 (1995), an agreement was made between a police officer and a homeowner's attorney which promised that if the homeowner answered questions regarding the source of contraband found in his home no charges would be filed. Although the homeowner fulfilled his part of the agreement by answering all questions posed by the police, he and his wife were charged with possession of a controlled substance. The homeowners then filed a motion to dismiss the charges citing the non-prosecution agreement. The trial court granted the motion, but the Supreme Court reversed finding the agreement was invalid because the police did not have the authority to bind the district attorney's office. The court referred to the distinct role possessed by the district attorney's office and remarked:

The district attorney's power to prosecute cannot be restricted by the actions of municipal police officers who might, in any given case, deem it worthless or ill-advised to prosecute. While the police exercise, as a practical matter, a certain discretion in deciding whether to make an arrest, issue a citation, or seek a warrant, the ultimate discretion to file criminal charges lies in the district attorney. Police officers have no authority to enter agreements limiting the power of the district attorney in this regard.

Id. at 1295.

¶ 6 The Court, finding the non-prosecution agreement invalid, refused to enforce the agreement and bar prosecution. Rather, it concluded that any detrimental evidence procured through the inaccurate representation that a prosecution would not be brought would be suppressed. The court stated that this ruling "places the [homeowners] in the same position as if the unauthorized promise not to prosecute had never been made by the police." Id. at 1296. In reaching this ruling, the Court cited to People v. Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988), wherein the appellant, aggrieved by the breach of an unauthorized agreement with the police, providing that he would not be prosecuted, questioned whether he was entitled to specific performance of that agreement. The court denied the appellant's request for specific performance based on the fact that the police lacked the authority to make a binding promise of immunity or not to prosecute. The court held that specific performance would amount to preclusion of an otherwise valid prosecution. The court noted that enforcement of the unauthorized agreement would have a potential for abuse for it would allow the police unbridled discretion. Further, it recognized as a related concern the potential for endless litigation and confusion which the enforcement of unauthorized agreements would create.

¶ 7 In this case the trial court recognized the invalidity of the non-prosecution agreement. Like the Court in Stipetich and Gallego, the trial court in this case found the non-prosecution agreement made by the police unauthorized and therefore unenforceable. However, unlike Stipetich and Gallego, the court did dismiss the charges against the defendant. The dismissal was ordered "in the interest of justice solely for the purpose of discouraging similar conduct in the future." Trial Court Opinion at 2.

¶ 8 In ordering the dismissal, the trial court cited to Commonwealth v. Snyder, 385 Pa.Super. 58, 560 A.2d 165 (1989), and Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968), which both discuss a trial judge's discretion to order the dismissal of a prosecution upon motion and a showing that the information has not been filed within a reasonable time. The trial court acknowledged that Appellee did not file a motion in this case under Pa. R.Crim.P. 315. This rule, now renumbered Pa.R.Crim.P. 587, permits the dismissal of a prosecution or "such other order as shall be appropriate in the interests of justice ... upon motion and showing that an information has not been filed within a reasonable time." Id.

¶ 9 This Court in Commonwealth v. Murphy, 305 Pa.Super. 246, 451 A.2d 514 (1982) (plurality opinion), considered the trial court's sua sponte dismissal of charges against the defendants following a 32-month pre-arrest delay. The Court, referring to the practice of reaching issues not presented by litigants, criticized the trial judge's actions. It found the fact that the trial court raised the due process issue sua sponte required it to vacate the court's order. Alternatively, the Court held that, because the trial court failed to find that the defendants were prejudiced by the pre-arrest delay, its ruling was incorrect on the merits. See also Commonwealth v. Nelson, 456 Pa.Super. 349, 690 A.2d 728 (1997) (ruling that the trial court impinged upon the role of the litigants by relying upon issues raised sua sponte to dismiss the proceedings).

¶ 10 Even were we to consider that the court's action, although sua sponte, was in the interest of justice to deter the police from similar conduct in the future, we nevertheless find its dismissal cannot be upheld. I...