Com. v. McElroy

• Decision Date: 01 September 1995
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Harry Walt McELROY.
• Court: Pennsylvania Superior Court

Page 813

665 A.2d 813

445 Pa.Super. 336

COMMONWEALTH of Pennsylvania, Appellant, v. Harry Walt McELROY.

Superior Court of Pennsylvania.

Argued April 24, 1995.

Filed Sept. 1, 1995.

Joseph A. Massa, Jr., District Attorney, Warren, for Commonwealth, appellant.

William P. Weichler, Erie, for appellee.

Michael S. Sherman, Philadelphia, Amicus Curiae.

Before KELLY, FORD, ELLIOTT and BROSKY, JJ.

BROSKY, Judge.

The Commonwealth of Pennsylvania files this appeal from the Order of the court of common pleas which granted (1) the Motion of appellee to enforce plea agreement and (2) appellee's Motion for sanctions. ¹ In granting the latter Motion, the trial court ordered exclusion of the testimony of all witnesses who were to be called by the Commonwealth at trial whose tape recorded interviews by Sgt. McFadden of the Pennsylvania State Police ("the PSP") were erased or destroyed.

The Commonwealth raises two issues, to-wit: (1) Whether the offer of a negotiated guilty plea which appellee accepted is enforceable where appellee had not detrimentally relied upon it and where the trial court had not yet accepted the plea; and (2) Whether the trial court abused its discretion in imposing sanctions against the Commonwealth by barring witnesses' trial testimony when counsel for the PSP did not provide to either the Commonwealth or to appellee copies of reports of an internal investigation conducted by the PSP Bureau of Professional Responsibility ("the BPR"). ²

We hold that the offer of the negotiated plea which had not yet been accepted by the trial court is not enforceable against the Commonwealth and that the trial court abused its discretion by imposing the sanction of excluding testimony of witnesses whom the Commonwealth would call at trial and whose interviews had been tape recorded but destroyed or erased. We therefore vacate the Order in question. Our reasoning follows.

Appellee was charged in a five count criminal information with three violations of the Motor Vehicle Code, to-wit: Overtaking vehicle on left (75 Pa.C.S.A. § 3303(a)(2)), reckless driving (75 Pa.C.S.A. § 3736) and driving while operator's privilege is suspended or revoked (75 Pa.C.S.A. § 1543(a)). He was also charged with two violations of the Crimes Code, to-wit: two counts of reckless endangerment (18 Pa.C.S.A. § 2705). Count one, reckless endangerment, charged appellee with colliding head-on with a vehicle driven by PSP Tpr. Thornton which caused the death of the victim, James Rehe. Count five, reckless endangerment, charged appellee with colliding head-on with Tpr. Thornton's vehicle while driving at an excessive rate of speed, making illegal passes and increasing speed while being overtaken by the Trooper's vehicle.

The genesis of these criminal charges was a high-speed chase by Tpr. Kenneth Thornton, who was attempting to stop appellee on S.R. 62 in Warren County. During the course of the chase, Tpr. Thornton's north-bound vehicle collided with the south-bound vehicle driven by James Rehe. This collision resulted in the death of Mr. Rehe. Following the commencement of formal charges against appellee, Mr. Massa, the District Attorney of Warren County, proposed to appellee's counsel, Mr. Ambrose, through informal discussions, that appellee plead nolo contendere to Count five, reckless endangerment, in exchange for nolle prosing Counts one through four. Approximately two months following this offer, appellee, through Mr. Ambrose, informed Mr. Massa that he would accept the offer to plead nolo contendere to Count Five in exchange for the nolle prosing of Counts one through four. This was confirmed by letter from Mr. Ambrose to Mr. Massa. The effect of this offer was that appellee would plead nolo contendere to Count Five, which charged reckless endangerment to Tpr. Thornton. Count one, which charged reckless endangerment to Mr. Rehe, would be nolle prossed.

Subsequently, Mr. Massa met with Mr. Smith, counsel for the Rehe family, and the members of the Rehe family to discuss the proposed plea negotiations. The Rehe family objected to this proposal. The family members were outraged because the proposed plea would permit appellee to escape direct responsibility for the death of Mr. Rehe. The Estate of Mr. Rehe had previously commenced a wrongful death action against appellee, Tpr. Thornton and appellee's trucking company, whose vehicle appellee was operating at the time in question. After this meeting, Mr. Massa informed Mr. Ambrose that Mr. Rehe's family objected to the proposed plea and that, therefore, the offer would be withdrawn. According to the Opinion of the trial court written in support of its Order granting appellee's Motion to enforce plea agreement and his Motion for sanctions, Mr. Smith appeared while Mr. Massa and Mr. Ambrose were attempting new plea negotiations for the approval of the court and objected to any plea offer being made and accepted because the Rehe family had been informed by Mr. Massa that no plea agreement would be made. As a result, the trial court deferred further action on this matter.

Appellee and the trial court maintain that because the proposed plea agreement had been offered to and had been accepted by appellee, the Commonwealth could not renege because the plea offer had not been conditioned upon the approval of the Rehe family. This is not the law. Pennsylvania Rule of Criminal Procedure 319(b) provides:

(b) Plea Agreements.

(1) The trial judge shall not participate in the plea negotiations preceding an agreement.

(2) When counsel for both sides have arrived at a plea agreement[,] they shall state on the record in open court, in the presence of the defendant, the terms of the agreement. Thereupon the judge shall conduct an inquiry of the defendant on the record to determine whether he understands and concurs in the agreement.

(Emphasis supplied).

This Rule has been interpreted by our supreme court to mean that no plea agreement exists unless and until it is presented to the court. Commonwealth v. Porreca, 528 Pa. 46, 595 A.2d 23 (1989). Our supreme court has also held that "[w]here a plea agreement has been entered of record and has been accepted by the trial court, the [Commonwealth] is required to abide by the terms of the plea agreement." Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993) (rehearing denied). (Emphasis supplied). The Spence court further cautioned: "However, prior to the entry of a guilty plea, the defendant has no right to specific performance of an 'executory' agreement." At 249, 627 A.2d at 1184. (Emphasis supplied). In the matter at bar, appellee's "plea agreement had neither been entered of record nor accepted by the trial court and was, therefore, not enforceable." Id. It was, at most, executory. Therefore, appellee is not "entitled to specific performance of the oral plea agreement." Id. Although the issue in Commonwealth v. Stafford, 272 Pa.Super. 505, 416 A.2d 570 (1979), was the district attorney's refusal to plea bargain with the appellant, the basis for this court's rejection of the appellant's Fourteenth Amendment equal protection claim there is equally applicable to the matter at bar:

The Commonwealth is never under any legal obligation to plea bargain with any defendant. Stated another way[,] a defendant has no constitutional right to a plea bargain arrangement.... The decision as to whether to enter into plea negotiations is a function of prosecutorial discretion[,] and we will not review such decisions unless such decisions are based upon an invidious classification such as race, religion or national origin.... No such claim is made here.

At 511, 416 A.2d at 573. (Citation omitted).

This follows from the well-recognized principle that " '[a] District Attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case.' " Commonwealth v. Stipetich, 539 Pa. 428, 432, 652 A.2d 1294, 1295 (1995), (quoting Commonwealth v. DiPasquale, 431 Pa. 536, 540-41, 246 A.2d 430, 432 (1968), and listing case law, statutes and rules of court setting forth various powers of a district attorney). See also, e.g., Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986) (prosecutorial discretion with respect to determining death penalty cases), Commonwealth v. Buonopane, 410 Pa.Super. 215, 599 A.2d 681 (1991), allocatur denied, 530 Pa. 651, 608 A.2d 27 (1992) (same), and Commonwealth v. Paul, 383 Pa.Super. 486, 557 A.2d 357 (1989) (prosecutorial discretion to submit case to ARD program absent invidiously discriminatory factors unrelated to the protection of society).

The District Attorney is a publicly elected official. Pa.Const. art. 9, sec. 4. As such s/he is responsible to the people of this Commonwealth. A district attorney may decide, as a function of her/his prosecutorial discretion, that a plea bargain agreement not yet entered of record and approved by the court is not in the best interests and/or for the general welfare of the citizens of this Commonwealth. In that case, it makes little sense, and, indeed, it would violate the trust imposed in that office, to abdicate or to force abdication of prosecutorial discretion to a criminal defendant whose interests are adverse to those of the general citizenry of this Commonwealth.

No claim is made that Mr. Messa's decision to withdraw the plea offer was "based upon an invidious classification such as race, religion or national origin", Commonwealth v. Stafford, supra, or upon other factors unrelated to the protection of society. Commonwealth v. Paul, supra. The plea offer was at no time entered of record or accepted by the trial court. Commonwealth v. Spence, supra; Commonwealth v. Porreca, supra. Therefore, appellee is not entitled to receive the benefit of what is, at most, an executory bargain.

As its second issue, the Commonwealth maintains that...