Com. v. Stipetich

• Court: Pennsylvania Supreme Court
• Writing for the Court: Before NIX; FLAHERTY; ZAPPALA; PAPADAKOS; CAPPY; MONTEMURO; CAPPY
• Citation: Com. v. Stipetich, 652 A.2d 1294, 539 Pa. 428 (Pa. 1995)
• Decision Date: 23 January 1995
• Docket Number: No. 58,No. 57,57,58
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. George STIPETICH, Appellee (). COMMONWEALTH of Pennsylvania, Appellant, v. Heidi STIPETICH, Appellee ().

Page 1294

652 A.2d 1294

539 Pa. 428

COMMONWEALTH of Pennsylvania, Appellant, v. George STIPETICH, Appellee (No. 57).

COMMONWEALTH of Pennsylvania, Appellant, v. Heidi STIPETICH, Appellee (No. 58).

Supreme Court of Pennsylvania.

Argued Sept. 22, 1994.

Decided Jan. 23, 1995.

Robert E. Colville, Dist. Atty., Edward Marcus Clark, Maria V. Copetas, and Michael W. Streily, Asst. Dist. Attys., for appellant.

William F. Manifesto, Manifesto & Donahoe and Ellen M. Viakley, Pittsburgh, for appellee.

Before NIX, C.J., and FLAHERTY, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal by allowance from an order of the Superior Court which affirmed the orders of the Court of Common Pleas of Allegheny County dismissing criminal complaints charging the appellees, George and Heidi Stipetich, with possession of controlled substances. At issue is the validity of a non-prosecution agreement entered by the Stipetiches and police officers of the City of Pittsburgh.

In November of 1990, the Pittsburgh police obtained a warrant and conducted a search of the Stipetiches' residence. The search yielded small quantities of controlled substances and drug paraphernalia.

Sergeant Thomas, the officer in charge of the search, was subsequently contacted by the Stipetiches' attorney, Charles Scarlata. Thomas and Scarlata reached an agreement that, if George Stipetich would answer questions concerning the source of the controlled substances and drug paraphernalia found in his residence, no charges would be filed against either of the Stipetiches. George Stipetich then fulfilled his part of the agreement by answering all questions posed by the police.

Nevertheless, in September of 1991, on the basis of the contraband recovered in the foregoing search, Allegheny County authorities charged the Stipetiches with possession of controlled substances. Citing the non-prosecution agreement entered with the Pittsburgh police, the Stipetiches filed a motion seeking dismissal of the charges. The motion was granted by the court of common pleas. The Superior Court affirmed. We reverse.

The non-prosecution agreement was, in short, invalid. The Pittsburgh police did not have authority to bind the Allegheny County District Attorney's office as to whether charges would be filed.

It is well established that district attorneys, in their investigative and prosecutorial roles, have broad discretion over whether charges should be brought in any given case. "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. DiPasquale, 431 Pa. 536, 540-41, 246 A.2d 430, 432 (1968) (emphasis omitted). Accord Commonwealth v. Whitaker, 467 Pa. 436, 443, 359 A.2d 174, 177 (1976); Commonwealth v. Eisemann, 276 Pa.Super. 543, 545-46, 419 A.2d 591, 592 (1980) (broad discretionary power to determine whether prosecutions shall be commenced or maintained); 42 Pa.C.S. § 5947(b) (discretion to request immunity for witnesses); Pa.R.Crim.P. 101A (power to require that criminal complaints issued by police officers be approved by district attorney prior to filing); Pa.R.Crim.P. 133 (power to approve or disapprove private criminal complaints); Pa.R.Crim.P. 313 (power to move for nolle prosequi). See also ABA, Standards for Criminal Justice 3-1.1, Commentary (2d ed. 1980) ("The prosecutor ... has responsibility for deciding whether to bring charges and, if so, what charges to bring against the accused....").

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.

The elected office of district attorney was created by our constitution, Pa. Const. art. IX, § 4, and its responsibilities are provided by statute. See 16 Pa.C.S. § 4402(a) (district attorney's duty to sign all bills of indictment and conduct in court all criminal prosecutions). The legislature could not have intended that duties of the district attorney would be stripped away by actions of any of the thousands of municipal police officers in the Commonwealth. Affording police officers authority to enter agreements that prevent the district attorney from carrying out his duties would present a clear infringement of powers which the constitution and the legislature, as well as our case law, have reposed in the district attorney. Not only would it shift power from an elected and publicly accountable official to appointed public servants, but it would create havoc in the administration of justice by creating unbridled and decentralized decisions about which cases will be prosecuted. It would also open the door to extensive litigation and confusion over the existence and meaning of all manner of alleged non-prosecution agreements.

We are not unmindful that, in certain cases, police can obtain useful information from a suspect in return for a promise not to prosecute. In such cases, police are certainly free to obtain the district attorney's consent to a non-prosecution agreement, so that the agreement will not be an unauthorized one. See generally Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (validity of agreements between prosecutor and defendant).

The decisions below, barring prosecution of the Stipetiches, embodied concern that allowing charges to be brought after George Stipetich had performed his part of the agreement by answering questions about sources of the contraband discovered in his residence would be fundamentally unfair because in answering the questions he may have disclosed information that could be used against him. The proper response to this concern is not to bar prosecution; rather, it is to suppress, at the appropriate juncture, any detrimental evidence procured through the inaccurate representation that he would not be prosecuted. See Commonwealth v. Peters, 473 Pa. 72, 86-87, 373 A.2d 1055, 1062-63 (1977). This places the Stipetiches in the same position as if the unauthorized promise not to prosecute had never been made by the police. See People v. Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988) (where police entered an unauthorized agreement not to prosecute, appropriate remedy was suppression of evidence obtained thereby, not dismissal of the criminal charges).

Accordingly, the order of the Superior Court affirming the dismissal of charges against the Stipetiches must be reversed.

Order reversed, and cases remanded to the court of common pleas for further proceedings.

ZAPPALA, J., did not participate in the consideration or decision of these cases.

PAPADAKOS, J., concurs in the result.

CAPPY, J., files a dissenting opinion.

MONTEMURO, J., is sitting by designation.

CAPPY, Justice, dissenting.

I am compelled to dissent for two reasons. First, the focus of the majority opinion is misplaced; the real issue before this Court is whether the trial court abused its discretion in granting the motion to dismiss. And second, I cannot agree with the conclusion of the majority, that the effect of the trial court's decision would create havoc in the criminal justice system by allowing police officers to usurp the power of the district attorney to prosecute criminal actions.

At issue in this case is the decision of the trial court to dismiss a criminal complaint against these two defendants. The criminal complaint was brought ten months after a search of the defendants home yielded small amounts of various controlled substances. The investigating officers had agreed not to charge the defendants for narcotics violations if they cooperated fully with the police. This "agreement not to prosecute" is declared invalid by the majority as it was not entered into with the approval of the district attorney.

I cannot agree that the "validity" of the agreement is the controlling issue in this case. Rather, I believe the rights of the defendants to due process, that concept by which we guarantee an accused fundamental fairness and substantial justice, should be the proper focus of this Court's attention. Commonwealth v. Bryant, 367 Pa. 135, 79 A.2d 193 (1951), cert. denied 341 U.S. 954, 71 S.Ct. 1007, 95 L.Ed. 1376 (1951).

None of the parties contest the fact that an agreement was entered into, and that the defendants completely fulfilled their obligations under that agreement. Therefore, the "validity" of the agreement is not important. Of course, I concede that police officers do not have any authority to bind a district attorney by entering into non-prosecution agreements. Such a result would be absurd. However, when an agreement is negotiated due process requires that the defendants, who fulfilled their obligations under that agreement be treated with fairness and justice. Having a court decide how to best protect the rights of the accused, as was done here, does not, by any stretch of the imagination, mean that non-prosecution agreements entered into by police officers will bar the district attorney from subsequently deciding to pursue a prosecution. The judiciary, in its supervisory power, always has the authority to fashion a remedy that meets the needs of the situation at hand. It is precisely this power of the court to fashion a remedy which negates the majority's fear that the police will usurp the proper functions and authority of the district attorney.

In fact that power and authority...