author: JOHNSON, Judge. DEL SOLE, Judge, FORD ELLIOTT, Judge, OLSZEWSKI, Judge, POPOVICH, Judge,

text:
    621 A.2d 606
    COMMONWEALTH of Pennsylvania, Appellant, v. George STIPETICH. COMMONWEALTH of Pennsylvania, Appellant, v. Heidi STIPETICH.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1992.
    Filed Feb. 9, 1993.

      Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellant.

      William F. Manifesto, Pittsburgh, for appellee (at 1773 and 1801).
    Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   JOHNSON, Judge.

In these cases, we are asked to determine whether the trial court abused its discretion in dismissing the criminal complaints brought against George and Heidi Stipetich by the Allegheny County Police Department, where a non-prosecution agreement had been entered between the Stipetiches and the City of Pittsburgh Police Department and full performance had been rendered by the Stipetiches. As we conclude that the trial court did not abuse its discretion, we affirm.

On November 13, 1990, officers of the City of Pittsburgh Police Department obtained a search warrant for the Stipetich home. Accompanied by officers from the Upper Saint Clair Police Department, they searched the Stipetich home pursuant to that warrant. In that search, the Pittsburgh Police, under the supervision of Sergeant Thomas, recovered: various items of drug paraphernalia containing cocaine residue; several bottles of prescription analgesics; a small amount of marijuana; and one dexedrine tablet. These items were retained and analyzed by the Pittsburgh Police, who were in sole control of the investigation.

The Stipetiches, at that time, were represented by Attorney Charles Scarlata. Attorney Scarlata contacted Sergeant Thomas “to ascertain exactly what they [Pittsburgh Police] thought was going on and what [he] might prepare for as a lawyer trying to represent clients.” N.T., October 8, 1991, at 43. After several discussions, on April 13, 1991, Attorney Scarlata and Sergeant Thomas reached an agreement about the disposition of the Stipetiches’ case. The agreement was that if George Stipetich would answer all questions concerning the source of the controlled substances and paraphernalia seized at his residence, no charges would be filed. N.T., October 8, 1991, at 44. George Stipetich immediately fulfilled his part of the agreement by answering all questions asked of him by the Pittsburgh Police Officers.

On September 9, 1991, Allegheny County Police filed criminal complaints against the Stipetiches, which charged possession of cocaine residue and pharmaceuticals based on the items seized during the search of the Stipetiches home by the Pittsburgh Police some ten months earlier. Successor defense counsel filed a motion to dismiss the charges against the Stipetiches based on the April 13, 1991, agreement between the Stipetiches and Sergeant Thomas, upon which full performance was rendered by the Stipetiches prior to any charges being filed. Following a hearing on the Motion to Dismiss, at which Attorney Scarlata was the sole witness on that issue, the trial court, the Honorable .Robert E. Dauer, granted the motion and dismissed the charges against the Stipetiches. It is from this order that the Commonwealth appeals.

In our review of a dismissal of an indictment by the trial court, we are limited to upholding the trial court’s conclusions absent an abuse of discretion. Commonwealth v. Gemelli, 326 Pa.Super. 388, 474 A.2d 294 (1984). We, as an appellate court, are bound by the trial court’s findings of fact, if supported by the record. Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985).

The sole issue presented for our review is whether the trial court abused its discretion in binding the Commonwealth to the non-prosecution agreement entered by the Stipetiches and the City of Pittsburgh Police Department, the enforcement of which, after full performance by the Stipetiches, resulted in the dismissal of all charges against the Stipetiches. Despite the arguments of the Commonwealth to the contrary, we deem unnecessary, to the disposition of this case, the exploration of whether “the police”, as an entity, have authority to enter into non-prosecution agreements. We conclude that the record supports the trial court’s finding that a binding agreement had been entered by the Stipetiches and the Pittsburgh Police, and therefore, the trial court did not abuse its discretion in enforcing it.

This court has discussed the effect of non-prosecution agreements between a potential defendant and a prosecuting attorney. Commonwealth v. Ginn, 402 Pa.Super. 405, 587 A.2d 314 (1991). There, we held that a non-prosecution agreement was analogous to a plea bargain agreement, and must be strictly enforced. Id. In that case, we implicitly applied contract law standards to analyze the mutual conditional promises made by both the potential defendants and the prosecutor and held that the integrity of the judicial system demanded that the Commonwealth live up to its obligations under the agreement. Id. at 410, 587 A.2d at 316.

While this case is not factually identical to Ginn, the same principles apply. Here, a formal agreement not to prosecute was entered, by the police officer in charge of the case and the attorney representing the Stipetiches. The Stipetiches, in reliance on this agreement, divulged all information that the police requested, and during this process gave up the valued constitutional guarantee against self-incrimination. While the police, rather than the prosecutor, entered into this agreement with the Stipetiches, both the Stipetiches and their attorney were induced to believe that Sergeant Thomas had full negotiating authority over the case and they detrimentally relied on that belief and the bargain that had been struck.

The United States Supreme Court discussed the constitutional implications of plea-bargain agreements in a seminal case that has been widely cited as authority for upholding non-prosecution agreements as well. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In that case, the defendant, charged with two felony offenses, agreed to plead guilty to a lessor included offense in exchange for the prosecutor’s promise not to make a sentencing recommendation. At the time of sentencing, a different prosecutor was assigned to the case and recommended the maximum sentence. The defendant, thereafter, unsuccessfully attempted to withdraw his guilty plea. On appeal to the United States Supreme Court, the conviction was vacated and remanded, due to the breach of the plea agreement. The Court stated, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. The Court, however, left the determination of the proper remedy to impose for breach of the plea agreement within the discretion of the trial court. Id.

Relying on Santobello, and other federal circuit court cases regarding the obligations of the government under plea bargain agreements, the Ninth Circuit discussed non-prosecution agreements in United States v. Carrillo, 709 F.2d 35 (1983). In that case, Carrillo was arrested for the possession of heroin. Following his arrest, agents of the Drug Enforcement Administration (DEA) offered not to prosecute Carrillo if he cooperated in the government’s investigation of drug traffickers. Carrillo agreed to cooperate in the investigation but refused to testify due to fears for the safety of himself and his family. Carrillo fully cooperated in the drug investigation but when called to testify, he refused. Notwithstanding the non-prosecution agreement, Carrillo was thereafter indicted, alleg-r edly based on his breach of that agreement. The district court dismissed the indictment, after analyzing the agreement between the DEA agents and Carrillo and determining that a promise to testify was not part of the bargain. The Ninth Circuit affirmed the dismissal of the indictment, stating that non-prosecution agreements must, be analyzed in terms of contract law standards. Id. at 36. The court, after determining that full performance had occurred on the part of Carrillo, then held that “under settled notions of fundamental fairness the government [through the actions of the DEA agents] was bound to uphold its end of the bargain.” Id. at 37.

In an earlier case, the First Circuit addressed a similar non-prosecution agreement. United States v. Rodman, 519 F.2d 1058 (1975). In that case, an agent of the Securities and Exchange Commission (SEC) had obtained substantial self-incriminating statements from Rodman on the basis that the SEC would strongly recommend to the United States Attorney that Rodman not be prosecuted. Thereafter, Rodman was indicted and sought to have the indictment dismissed based on his non-prosecution agreement with the SEC agent. The district court found that a non-prosecution agreement existed between Rodman and the SEC and that despite full performance by Rodman, the SEC had failed to uphold its part of the bargain. The First Circuit, in affirming the dismissal of the indictment, held that Rodman had been induced to make statements based on his reliance on the non-prosecution agreement, and that in light of the clear breach of the agreement by the SEC, dismissal of the indictment was not an abuse of discretion by the district court. Id. at 1059-1060.

We find the reasoning in the above cases to be persuasive. There, the courts did not explore the authority of the agent of the Government making the non-prosecution agreement with the potential defendant but ostensibly accepted the apparent authority of law enforcement agents to bind those involved in a subsequent prosecution. See Restatement (Second) of Agency § 8. In Santobello, Carrillo and Rodman, under principles of equity and fundamental fairness, these courts held that once the existence of an agreement is established, the remedy for the breach of a non-prosecution agreement rests within the sound discretion of the trial court.

Turning to decisions by state courts, in two cases, the Supreme Court of Colorado, sitting en banc, also enforced agreements between police officers and potential defendants, where the defendants detrimentally relied on the agreements to divulge potentially incriminating information in exchange for promises by police that the information would not be used in subsequent prosecutions. While in these cases, the police did not enter into non-prosecution agreements with the defendants, we find the reasoning of the Colorado Supreme Court to be useful in our determination of the issue before us.

In People v. Fisher, 657 P.2d 922 (Colo.1983), Fisher was arrested for and confessed to committing several residential burglaries. The detective in charge of the case asked Fisher if he would consent to a videotape interview about his burglary techniques, to be used for educating future law enforcement agents. Fisher consented to the videotaping on the condition that it could not be used against him in a subsequent prosecution. After the disposition of the charges pending against him by a plea-bargain which resulted in his serving no time in prison, Fisher was subsequently arrested on charges of residential burglary. After pleading not guilty to the charges and upon discovering that the prosecution intended to introduce the videotaped interview at trial, Fisher moved to suppress the videotape. The trial court granted the motion to suppress, stating, “we undermine the whole principles of [the] integrity of our society if we think that the state is not bound by its agreements.” Id. at 925. The Supreme Court of Colorado upheld the trial court’s suppression order, relying on Santobello and subsequent federal cases. The Colorado court required specific performance on Fisher’s agreement with the police, “because the officer’s promise implicated other constitutional rights of the defendant, because the defendant took detrimental action in reasonable reliance upon the promises, and because no other remedy short of enforcement of the promise would secure fundamental fairness to the defendant----” Id. at 925.

We find the reasoning in Fisher as well as in a subsequent decision by the same court, People v. Manning, 672 P.2d 499 (Colo.1983), to be persuasive. In Manning, prosecutors appealed a suppression order by the trial court, which was based on an agreement between Manning and a police officer that certain statements would not be used against her. The Supreme Court of Colorado upheld the order to suppress, despite the arguments of the prosecutor that the police officer was not authorized to make the agreement not to use Manning’s statements against her. The court, there, held that the police officer, under a theory of apparent authority, was no less an agent of the government than the prosecuting attorney. Id. at 505-506. The court went on to conclude that the only viable area of inquiry was whether an agreement actually existed, the terms of the agreement, and, whether there was detrimental reliance by Manning. There the court determined that there was indeed an agreement between the police officer and Manning, upon which Manning detrimentally relied, and that the intended scope of the agreement was that the information which Manning revealed could not be used against her in a subsequent prosecution.

In the present case, the trial court, using a rationale similar to that employed by the Colorado Supreme Court, determined that a negotiated agreement existed, “based on the good faith efforts of both the defendants and the Pittsburgh Police.” Based on this conclusion, and the fact that the Stipetiches had fully performed their obligations under the agreement prior to the filing of any charges against them, the trial court enforced the agreement.

The Commonwealth, however, directs us to another state court decision, People v. Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988), as the case which should guide us in the non-enforcement of the agreement between the parties in the instant case. In that case, the defendant, in an agreement with a DEA agent, returned money offered for the purchase of cocaine to the Michigan State Police in exchange for a promise of non-prosecution. Thereafter, a state prosecution was initiated. Gallego asserted the he was entitled to specific performance of the non-prosecution agreement. The Michigan Supreme Court, looked to Santobello for guidance in this area, and determined that under its holding specific performance was not required. The Michigan court then held that specific performance of the agreement was not required for the “misconduct” on the part of the police in entering into the agreement, but rather, suppression of the buy money and the written agreement would serve to cure the constitutional violations suffered by Gallego due to his detrimental reliance upon his written agreement with the police. Id. at 456-457, 424 N.W.2d at 475.

The Gallego court correctly determined that Santobello did not require specific performance of the plea agreement but the court failed to recognize that the United States Supreme Court did hold that the remedy for the breach of that agreement was best left within the discretion of the trial court. In Gallego, the Michigan Supreme Court usurped the power of the trial court to impose a remedy for the breach of the non-prosecution agreement, and substituted its judgment for that of the trial court by imposing its own remedy. We decline to follow this example.

We find the reasoning presented in Justice Cavanaugh’s dissent in Gallego to be more persuasive. The Justice stated, in part:

In the present case, the police may not have had the authority to propose the agreement in question ... What is important is not whether the police had the authority to make the promise, but whether the promise was in fact made. Here, the written, signed agreement proposed by the police is evidence of this promise. In reliance on this promise and the advice of counsel, defendant performed his part of the agreement.
The precept that people should keep their promises should apply to the state no less than to individuals. When a promise is made by the state to an individual involved in the criminal justice system, the standards of substantive due process hold the state to a high duty of care in keeping its promise. Although the constitution may not specifically require specific performance in this case, the principle of fundamental fairness does. It is fundamentally unfair for the state to create and then destroy a defendant’s expectations while reaping the benefit of its bargain.

Gallego at 461-462, 424 N.W.2d at 477-478 (Cavanaugh, J., dissenting) (citations omitted).

It is after full consideration of the reasoning presented in all of the above cited cases, that we approach this issue based on the facts before us. The crucial question for our inquiry is whether the trial court’s finding that a binding agreement was reached between the City of Pittsburgh Police and the Stipetiches is supported by the record. If the trial court’s determination that an agreement existed is supported by the record, the remedy for the breach of that agreement remains solely within its discretion. Santobello at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

The record reveals that Attorney Scarlata was the sole witness on the issue of whether a non-prosecution agreement existed. We conclude that the undisputed testimony offered before the trial court supports the trial court’s finding that an agreement existed between the Stipetiches and the Pittsburgh Police and that the Stipetiches reasonably relied upon that agreement in answering all police questions, foregoing the Constitutional guarantees against self-incrimination.

Attorney Scarlata, upon cross-examination by the district attorney, testified:

Q: As part of your representation of George Stipetich, did you go to other agencies that could have possible jurisdiction to file in order to negotiate with them?
A: There was no need to do that. I was talking to the people who had control of the physical evidence and from my view control of the case.
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Q: Was it not your understanding of the general case law in this area that in order to provide an agreement, it must be entered into with the prosecutor, such as the U.S. Attorney or the district attorney?
A: No, that’s not my understanding. My understanding is, and it is something that enables the system to function, is that if a policeman makes a representation to me, I can rely upon that representation.

N.T., October 8, 1991, at 52.

The trial court concluded that, as full performance had been rendered by the Stipetiches prior to the filing of any charges against them, the Commonwealth must be held to the bargain made in good faith between the Stipetiches and the City of Pittsburgh Police. As the only unfulfilled promise in the agreement remained the promise not to prosecute, under accepted notions of equity and fundamental fairness, enforcement of that agreement necessarily entailed granting the Stipetiches’ Motion to Dismiss the indictment.

We conclude that based on the specific facts of this case, the trial court did not abuse its discretion in enforcing the non-prosecution agreement between the Stipetiches and the City of Pittsburgh Police.

Order of October 8, 1991, Dismissing the Criminal Complaints is Affirmed.

DEL SOLE, J., joins and files a concurring statement.

FORD ELLIOTT, J., concurs in the result and files a concurring statement.

HUDOCK, J., concurs in the result.

OLSZEWSKI, J., files a dissenting opinion in which ROWLEY, President Judge, joins.

POPOVICH, J., files a dissenting opinion in which ROWLEY, President Judge, and CAVANAUGH, J., join.

DEL SOLE, Judge,

concurring.

I join Judge Johnson’s Opinion. I believe the concerns expressed by the dissents are best dealt with between district attorneys and law enforcement agencies.

We have no way of knowing how many times a day, throughout the Commonwealth, that police officers agree with a criminal suspect to reduce or to not file charges in exchange for investigative cooperation. It has been represented that this is a constantly used tool in law enforcement. If a local district attorney wishes to avoid being bound by such agreements, the remedy is to notify all police departments within the county and to seek administrative discipline against any officer who may violate the rule.

I would place this burden on the Commonwealth and its agencies, not the public.

FORD ELLIOTT, Judge,

concurring.

I concur in the result reached by the majority but cannot join in its rationale. Rather, I rely on my concurring statement in the companion case of Commonwealth v. Scuilli, 423 Pa.Super. 453, 621 A.2d 620, and decide that before relief may be granted based on a nonprosecution agreement, there must be some showing of detrimental reliance rising to the level of prejudice or manifest injustice to the party seeking enforcement. Based on the record before this court, I can find that such prejudice was suffered by the Stipetiches in their foregoing Constitutional guarantees against self-incrimination. Therefore, I cannot reverse the trial court’s decision to dismiss the charges. However, in all candor, from my reading of the trial court’s opinion, I would not characterize this choice of remedy as an exercise of the trial court’s discretion. Judge Dauer specifically found that the police officer in question had the authority to negotiate the nonprosecution agreement and that this mandated the dismissal of charges.

OLSZEWSKI, Judge,

dissenting.

I must respectfully dissent from the majority’s conclusion in this case. Although I agree with a great part of the Honorable Judge Popovich’s dissent, I am writing separately. I do so because I feel that the majority’s opinion, while embedded in the best intentions, will have a deleterious effect on the efficient administration of criminal justice in this Commonwealth. My view of the correct disposition of this case, however, varies slightly from that which learned Judge Popovich opines.

Police employed by both the City of Pittsburgh and Allegheny County searched defendants’ residence pursuant to a valid search warrant. The search was fruitful, producing what the officers believed to be illegal narcotics and drug paraphernalia. The city police, as the affiants on the warrant, maintained custody of the contraband. In an effort to zealously represent his potential criminal defendants, the Stipetichs’ private counsel initiated negotiations with the city police, custodians of the contraband. An agreement was reached whereby “no charges would be filed” if the Stipetichs would cooperate with the police concerning the source of the seized narcotics. Majority opinion at 608. Defendants promptly cooperated.

In the meantime, the Allegheny County Police filed a criminal complaint with the Allegheny County District Attorney’s office. The district attorney began his prosecution of the case, but, much to his surprise, the city police had agreed that “no charges would be filed” against defendants. The majority of this Court now holds that the “contract” between the city police and defendants must be specifically enforced against the district attorney. In doing so, the majority “deem[s] unnecessary, to the disposition of this case, the exploration of whether ‘the police’ as an entity, have authority to enter into non-prosecution agreements.” Majority opinion, at 608. Despite this statement, by enforcing the “contract” against the district attorney, the majority effectively holds that the police have the authority to enter into these agreements. So long as defendants and their lawyers (who may be ex-judges and former United States Attorneys) are induced by the police to believe that the officers have the authority to bind the district attorney, the non-prosecution agreement is enforceable. This result is potentially ruinous to the orderly administration of justice.

. As Judge Popovich’s dissent notes, a large body of caselaw recognizes that the district attorney has wide discretion in deciding whether to file charges against a defendant pursuant to a private criminal complaint.

In capacity as the Commonwealth’s attorney, the district attorney has traditionally fulfilled the obligation of investigation and prosecution of crime by initially evaluating complaints to determine whether a charge should be brought against a suspect. “A district Attorney has 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.”

Petition of Piscanio, 235 Pa.Super. 490, 494, 344 A.2d 658, 660 (1975) (citation omitted). Because the district attorney is an elected official entrusted with conducting the criminal litigation of the county on behalf of the electorate, a court should be wary of impinging on that discretionary power:

[The] discretionary power of the District Attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence or non-existence of probable cause. For this reason, the courts have been wary of interfering with or attempting to supervise the District Attorney in the exercise of his discretion in controlling criminal prosecutions.

In re Wood, 333 Pa.Super. 597, 602, 482 A.2d 1033, 1036 (1984).

The thrust of the cases cited by Judge Popovich’s dissent, however, concerns whether, on appeal, a private complainant may win reversal of a district attorney’s decision to not approve the complaint. In this case, however, the issue is whether the district attorney may be stripped of this decision-making power, in cases involving the police as well as private complainants, before ever having the chance to exercise it. I am of the position that our Legislature has provided the answer. Neither a private complainant, a policeman, nor a court may usurp this power.

A district attorney holds an office created solely by statute. Commonwealth v. New York & Pennsylvania Co., 378 Pa. 359, 106 A.2d 239 (1954). His or her duties are prescribed by our Legislature:

The district attorney shall sign all bills of indictment and conduct in cowrt all criminal and other prosecutions, in the name of the Commonwealth, or, when the Commonwealth is a party, which arise in the county, and perform all the duties which now by law are to be performed by deputies attorney general, and receive the same fees or emoluments of office.

16 Pa.C.S. § 4402(a).

By using the phrases “shall sign all bills of indictment” and “conduct in court all criminal prosecutions,” the Legislature has clearly indicated an intent that the district attorney be solely responsible for signing a bill of indictment that will begin formal prosecution of a criminal defendant in the Commonwealth. See 1 Pa.C.S.A. § 1901. Indeed, our Supreme Court has held that the district attorney may not constitutionally agree to divest himself or herself of any duty attendant to the elected office of district attorney. Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135 (1962). No exception to the statute exists which allows a municipal police officer to make a bargain that strips the district attorney’s power to prosecute a case in court. The majority’s holding, however, creates such an exception.

Police officers should not be entitled to make a bargain which essentially divests the district attorney of the power to decide whether a case should be prosecuted to finality. Police officers are not privy to the reasons behind a district attorney’s decision to prosecute. This Court should not sanction a police practice which effectively places the power to make policy decisions in their hands. This is especially so when our Legislature has provided that the district attorney is the public officer solely responsible for that duty.

It is my opinion that we need to look no further than the statute to conclude that the district attorney should be entitled to prosecute this case. If the Legislature is inclined to impose prosecutorial decision-making authority upon a public official other than the district attorney, then so be it. Until that day, however, judicial fiat should not entitle any person, either by express language or implicit effect, to divest the district attorney of the power to prosecute a case.

The majority’s decision, however, does not have its genesis in a concern for the duties and powers of the district attorney. Rather, its holding incorporates principles of fairness to the defendant. The majority cites Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), for the proposition that the prosecutor should be held to the letter of the bargain: “when a plea rests in any significant part on a promise or agreement by the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. In Santobello, the facts demonstrated that during defendant’s prosecution, one prosecutor made a plea agreement with defendant, but a different prosecutor assigned to the case failed to follow it. The Supreme Court indicated that specific performance might be appropriate, since “[t]he staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done.” Id. As one can plainly see, the prosecutor’s office in this case made no promise, no inducement, and had no knowledge that a deal had been struck. In fact, the district attorney in a Pennsylvania county should have no concern that the police might strike a deal without his knowledge since it is beyond question that in this Commonwealth, the police cannot make such a bargain.

The remedy for a violation of defendants’ constitutional rights is suppression of evidence unconstitutionally procured. While Judge Popovich’s reliance on the Michigan and Massachusetts cases is persuasive, I see no need to leave the jurisprudence of this Commonwealth to provide a remedy. Our Supreme Court has held that “[a] confession induced by a promise of immunity from a person in apparent authority to perform the promise is involuntary ... A fortiori, a waiver of rights cannot be considered voluntary where it is induced by promises of immunity from such a person.” Commonwealth v. Peters, 473 Pa. 72, 86, 373 A.2d 1055, 1062 (1977). In Peters, the Supreme Court ordered the suppression of incriminating statements made by a defendant after a detective employed by the district attorney’s office told him that “the most that would happen to him would be that he would be picked up or held as a witness on dollar bail.” Id. at 78, 373 A.2d at 1058. Likewise, this Court has upheld suppression of physical evidence and statements given as a result of an improper police promise not to charge defendants with the mandatory five-year weapons enhancement under the sentencing guidelines. Commonwealth v. Elslager, 349 Pa.Super. 217, 502 A.2d 1354 (1986). We stated in Elslager:

Here, as indicated, it was the police who originally attempted to exercise the discretion in invoking the five year mandatory sentence provisions. The mandatory sentence procedure is not a matter for the police in charging an offense. “Section 9712 applies only in the event the defendant is convicted of one of the offenses numerated therein and thus relates solely to the sentencing proceedings.” As a result, the [defendant’s] waiver of their privilege of self-incrimination was not knowingly, intelligently and voluntarily made. The statements of the [defendants] were therefore involuntary.

Id. at 226, 502 A.2d at 1359 (citation omitted).

I see no reason why the exclusionary rule should not apply to afford defendants relief upon an independent showing that their constitutional rights were violated. Neither Peters nor Elslager give any indication that the district attorney in those cases might be bound by the improper police promises. Indeed, if the district attorney is bound to the letter of every improper promise a police officer makes, the exclusionary rule as a remedial device becomes unnecessary. More importantly, our settled system of the administration of justice will be sent into utter chaos.

Therefore, I would reverse the order of the trial court dismissing the action against defendants. At the proper juncture, defendants may make a motion to suppress any confessions, statements, or physical evidence obtained by the police in an unconstitutional manner. This remedy puts defendants in the same position they would have been had no improper conduct occurred. At the same time, we would not compromise the district attorney’s discretion, and duty, to decide whether prosecution of these defendants will serve the public good. Any other remedy, in my opinion, is an abuse of discretion.

I respectfully dissent.

ROWLEY, President Judge, joins.

POPOVICH, Judge,

dissenting.

There are sixty-eight duly elected prosecutors in our Commonwealth, one for each of our counties and one Attorney General. Heretofore over the decades, it was assumed that only they possessed the discretion to bring forth prosecutions and enter into bargains with arrestees.

Suddenly, surely to the jolting surprise of these sixty-eight, the legislature, the municipal, county and state executive branches of government and to at least some members of the judiciary, the majority has now by judicial fiat endowed untold thousands of police throughout this Commonwealth with this sensitive, fundamental power.

Therefore, I cannot join in the Majority’s decision to uphold the lower court’s grant of the Motions to Dismiss the criminal complaints issued by the District Attorney of Allegheny County against the appellees/George & Heidi Stipetich.

The facts are undisputed: An informant gave information to the City of Pittsburgh Bureau of Police resulting in the securement of a warrant to search the appellees’ home in Upper St. Clair, a suburb outside of the city limits but within the jurisdictional confines of Allegheny County.

The search of the appellees’ residence was conducted with the assistance of the Allegheny County Police Department on November 13, 1990, and netted the Pittsburgh police suspected drugs, drug paraphernalia and non-drug items. Prior to any charges being lodged, the appellees’ attorney contacted the supervisor (Sergeant Thomas) of the two Pittsburgh police officers who were the affiants on the warrant. He made inquiry regarding the intent of the police, i.e., would charges be filed.

Sergeant Thomas advised counsel that the items seized tested positive for cocaine and the police department was evaluating what, if any, additional action would be taken because of the other items seized. This exchange was followed by a continuing dialogue in which counsel for the appellees questioned the viability (premised upon his experience as a prosecutor for the United States Attorney’s Office, defense counsel and former judge) of prosecuting the appellees. Finally, counsel for the appellees and Sergeant Thomas “reached an agreement” whereby Mr. Stipetich would cooperate with the Pittsburgh police by disclosing whatever information he knew as to the source of the drugs found at his premises. In exchange, Sergeant Thomas agreed that no charges would be filed.

In compliance with the understanding reached between Sergeant Thomas and counsel for the appellees, a meeting was held on April 13, 1991, wherein Mr. Stipetich answered all questions posed to him by Sergeant Thomas. Some ten months thereafter, the District Attorney of Allegheny County ordered the appellees arrested on criminal complaints filed by the Allegheny County Police Department, one of the agencies present during the initial search of the appellees’ residence. Evidence seized formed the basis for complaints.

Motions seeking dismissal of the criminal complaints, charging violations of the Controlled Substance, Drug, Device & Cosmetic Act, were filed and granted, after a hearing, by the court below. The Commonwealth perfected an appeal and claims that the Pittsburgh police did not have the authority to consummate an agreement not to prosecute, a determination this writer believes is reserved solely to the District Attorney.

The Office of District Attorney is a constitutionally established position and vests with that official, as chief law enforcement officer, the authority to prosecute criminal cases arising within a geographical area. See Pa. Const. Art. 9, § 4, Act of July 28, 1953, P.L. 723, art. XIV, § 1402, 16 P.S. § 4402(a).

In considering the extent of the district attorney’s power, it is important to bear in mind that the district attorney’s function is to represent the Commonwealth in criminal prosecutions. Commonwealth ex rel. Specter v. Freed, 424 Pa. 508, 228 A.2d 382 (1967). In the capacity of the Commonwealth’s attorney, the district attorney has traditionally fulfilled the obligation of investigation and prosecution of crime by initially evaluating complaints to determine whether a charge should be brought against a suspect. “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 continue or discontinue a case.” Commonwealth v. DiPasquale, 431 Pa. 536, 540-41, 246 A.2d 430, 432 (1968).
The power granted the district attorney ... is consistent with the authority regularly exercised by that office in deciding whether to initiate or to discontinue prosecutions. Commonwealth v. Ragone, 317 Pa. 113, 176 A. 454 (1935); Commonwealth v. Lord, 230 Pa.Super. 96, 326 A.2d 455 (1974); Pa.R.Crim.P. 314. The attorney for the Commonwealth is acting in accordance with a recognized duty owed to the people of the Commonwealth ... not only of overseeing the prosecution of crime but also determining when charges should be brought....

Petition of Piscanio, 235 Pa.Super. 490, 344 A.2d 658, 660-61 (1975); see also Commonwealth Attorneys Act, Act of Oct. 15, 1980, P.L. 950, no. 164, § 205, 71 P.S. § 732-205.

It is this writer’s belief that affording police officers the unbridled authority to enter into negotiations which terminate prosecutions shifts a constitutionally reposed power from an elected official to an appointed public servant. This is unacceptable.

Those state courts which have dealt with the issue have concluded that the breach of an unauthorized agreement with police does not warrant the dismissal of charges brought thereafter by a District Attorney. For example, in People v. Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988), the Supreme Court of Michigan, in a case of first impression, was confronted with the question of whether a defendant was entitled to specific performance of a written agreement of non-prosecution executed with federal agents and state police in exchange for assisting in retrieving money used in a drug transaction by the defendant.

The local prosecutor did- not feel he was bound by the agreement and, consequently, charged the defendant with drug violations. The lower court granted the defendant’s motion to dismiss. On appeal, the Supreme Court of Michigan affirmed the Court of Appeals reversal of the motion to dismiss. In the course of doing so, as herein relevant, the Court wrote:

We base our decision to deny defendant specific performance on the fact that the police lacked the authority to make a binding promise of immunity or not to prosecute. The case at bar involves a non-plea agreement for which specific performance amounts to preclusion of an otherwise valid prosecution, and the Court has available an alternative remedy short of specific performance, i.e., suppression, which- essentially restores defendant to the position he enjoyed prior to making the agreement in question to the police.
The absence of authority of the police in this matter is significant for several reasons. To begin with, by enforcing the unauthorized promise made to defendant, this Court would undermine the accountability built into the prosecutorial function. Unlike a Michigan State Police officer, the Oakland County Prosecutor is an elected official and thus accountable to the county’s electorate for his' acts. Since the police possess neither the authority to withhold prosecution nor to grant immunity, no formal system exists by which to check the potentially unbridled discretion the police would possess if allowed to make binding promises precluding prosecution. The potential for abuse seems obvious.
‡ ‡ ‡ ‡
In addition, enforcing the unauthorized promise made by the police to defendant raises the question of the logical limits of the power of the police to control the criminal justice system. If the police may make unauthorized, yet binding promises that preclude prosecution, why could they also not make binding plea bargains or sentence agreements? Thus, in granting defendant specific performance, this Court would create a dangerous precedent. By doing so, we would implicitly recognize the propriety of allowing non-elected, non-prosecutorial public officials to administer an ad hoc system of criminal justice.
A factor suggesting caution in granting defendant’s request for specific performance is the fact that the instant case involves a non-plea agreement for which specific performance amounts to preclusion of an otherwise valid prosecution. To begin with, dismissal of criminal charges as a remedy for alleged police misconduct is a drastic and disfavored remedy. See e.g., United States v. Blue, supra, 384 U.S. [251] at 255, 86 S.Ct. [1416] at 1419 [16 L.Ed.2d 510 (1966)]; United States v. Rogers, 751 F.2d 1074, 1076-1077 (CA 9, 1985). In this case, dismissal of criminal charges is even less desirable, however, because it advances no other legitimate interests. With a plea bargain, for example, a defendant may plead guilty to one or more charges in exchange for the dismissal of other charges. By negotiating such an agreement, the prosecution protects the public by guaranteeing the defendant’s conviction on at least one offense and promotes the prompt and efficient disposition of criminal cases.
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A factor which underlies our decision to deny defendant’s request for specific performance is the presence of an alternative remedy which essentially restores defendant to the position he enjoyed prior to making the agreement in question with the police.
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In other words, specific performance is not required to restore defendant to the position he enjoyed prior to making the agreement in question with the police. Exclusion of the buy money and suppression of the written agreement, obtained in alleged violation of defendant’s Fourth and Fifth Amendment rights, respectively, correct any prejudice suffered to date by defendant. As for defendant’s contention that statement by the [prosecution] and the Court of Appeals have stripped him of his constitutional right to a presumption of innocence, we cannot agree. Our decision to deny defendant’s request for specific performance is not an adjudication of defendant’s guilt; we properly leave that determination to the trial court. Instead, our decision rests solely on the legal and policy ramifications of specific enforcement of unauthorized, non-plea agreements made by the police, such as in the case at bar, not on any assumptions about defendant’s ultimate guilt or innocence.
Since suppression or exclusion cures defendant’s detrimental reliance, specific performance is not necessary to return defendant to the position he eiijoyed prior to making the unauthorized, non-plea agreement at issue in this case.

424 N.W.2d at 473-475 (Footnotes omitted). Accord Commonwealth v. St. John, 173 Mass. 566, 54 N.E. 254 (1899).

Instantly, we have a scenario in which the District Attorney of Allegheny County was never contacted prior to or during the “continuing” discussions had between Sergeant Thomas of the Pittsburgh police and counsel for the appellees. In fact, implicit in the testimony of counsel for the appellees is the belief that the Pittsburgh police had the “apparent authority” to finalize any deal which would insulate his clients from prosecution. See RR. 61 (“I assumed that [Sergeant Thomas] communicated with whomever he was required to who might have been his superior before accord was reached and the deal was consummated.”)

Yet, nowhere in the record is there any indication that the District Attorney’s office, as a matter of course, permitted the Pittsburgh police to act as extensions of or on behalf of the prosecutor by making binding agreements of which he knew nothing (from inception to consummation). Such conduct by the Pittsburgh police, and joinder by defense counsel, is indicative of a perception of power which has evolved into a practice accepted as de facto authority and the practice appears to have become commonplace. See RR. 54-55 (Counsel for the appellees testified that the police enjoyed the last decision-making responsibility; prosecutorial discretion rests first with the arresting officer). This was never the intent of the Legislature in establishing a unified judicial system which has as one of its players the District Attorney, whose role it is to bring violators to justice. Petition of Piscanio, supra.

Moreover, the conduct of the Pittsburgh police fosters unaccountability and exposes the criminal justice system to excesses attendant to unchecked authority. See Gallego, supra.

This case affords the Court the occasion to clarify the statutory and case law interpreting the authoritative limits of the District Attorney’s office vis-a-vis the police department, which I consider to counsel against affixing our imprimatur to the lower court’s dismissal of the motions to dismiss. Otherwise, the police would be able to usurp unilaterally the exclusive prosecution function of the District Attorney set forth in our constitution, statute and case law. See, e.g., Pa. Const. Art. 9, § 4; 16 P.S. § 4402(a); Commonwealth v. Johnson, 507 Pa. 27, 487 A.2d 1320 (1985) (Court may not grant use immunity without consent of prosecutor); Commonwealth v. Peters, 473 Pa. 72, 373 A.2d 1055 (1977) (Detective with the District Attorney’s office had apparent authority to promise immunity for a confession; non-compliance with inducement entitled defendant to a new trial); Commonwealth v. Wolf, 353 Pa.Super. 483, 510 A.2d 764 (1986) (Incrimination statement by defendant, while attempting to secure leniency, admitted at trial when uttered to non-representative of District Attorney’s office, i.e., police officer); Gallego, supra; United States v. Roberson, 872 F.2d 597, 611 (5th Cir.1989) (State immunity agreement did not bind federal prosecutor).

Unlike the Majority, which presumes that the agreement entered into by the police and the appellees was valid, I find that prohibition of the “deal” under scrutiny here can be gleaned from a combined reading of oür constitution, statutes and case law on the subject. Id. For instance, the decision to grant “use” immunity to any witness is reposed in the Attorney General or District Attorney at 42 Pa.C.S.A. § 5947.

Our Supreme Court has interpreted Section 5947 to restrict the grant of immunity to those named public officials because the risk of abuse is substantial. See Johnson, supra. The risk of abuse appears no less extant here where, availing all police officers the unbridled authority to act unilaterally to enter into binding agreements with defendants, the prosecution’s strong interest in trying the appellees for crimes against the Commonwealth is frustrated by the intervention of the police in an area henceforth sacrosant.

Thus, it seems difficult for this writer to reconcile the Legislature’s enactment of the “use” immunity statute (reserving that function to the Attorney General and District Attorney), while ignoring and leaving unprotected for police ruse the area of non-prosecutorial deal-striking. In both instances, the path of prosecutorial discretion should not be infringed upon by an unintended participant. If such be the case, the remedy should never swallow the excesses intended to be curbed.

The more appropriate course to pursue in this case, given the unauthorized actions of the police, would be to suppress any information obtained by the authorities. See Gallego, supra. . However, we have been presented with no insight as to the type of information divulged by the appellee/George Stipetich and whether it is incriminating to the Stipetichs’ case.

The issue of remedy becomes pertinent • only after the defendant has established a due process entitlement to some form of judicial relief by reason of certain actions taken in reasonable and detrimental reliance on a governmental promise.

People v. Manning, 672 P.2d 499, 512 (Colo.1993). Therefore, I would remand the case to allow an evidentiary hearing to determine whether the information elicited is truly detrimental to the appellees. If such is the case, the information should be suppressed as a consequence of the police’s inability to abide by the terms of the agreement. Otherwise, the case should be permitted to proceed through the judicial process unabated. Compare Gallego, supra, and contrast Manning, supra. The Majority, having decided to pursue a course at odds with that suggested by this writer, prompts this dissent.

I respectfully dissent.

ROWLEY, President Judge, and CAVANAUGH, J., join.

      . Section 4402(a) reads:
      The district attorney shall sign all bills of indictment and conduct in court all criminal and other prosecutions, in the name of the Commonwealth, or, when the Commonwealth is a party, which arise in the county, and perform all the duties which now by law are to be performed by deputy attorneys general, and receive the same fees or emoluments of office.

      -The A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function § 3.4 (Approved Draft, 1971), recommends that the decision to institute criminal proceedings be initially and primarily the responsibility of the prosecutor, the attorney for the Commonwealth.

      . The Restatement (Second) of Agency, § 8 (1958) defines "apparent authority” as "the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.” This type of authority is created "as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, cause the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” Id. at § 27. When an agent acts "within his apparent authority" and contracts on behalf of his principal, the principal is liable on the contract. Id. at § 159.

      . My finding that the police lack the authority to bind the District Attorney, of necessity, renders unenforceable the agreement between the appellees and the police.


source: Caselaw Access Project

author: HUDOCK, Judge: CAVANAUGH, Judge: OLSZEWSKI, Judge: DEL SOLE, Judge: FORD ELLIOTT, Judge:

license: Public Domain

text:
    621 A.2d 620
    COMMONWEALTH of Pennsylvania, Appellant, v. Bernard J. SCUILLI, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1992.
    Filed Feb. 10, 1993.

      Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Robert P. Vincler, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   HUDOCK, Judge:

In this appeal by the Commonwealth, we must decide whether a non-prosecution agreement entered into between Appellee and a municipal police officer binds the District Attorney of Allegheny County by its terms when Appellee performs his part of the agreement. Finding, under the specific facts of this case, that the Commonwealth is so bound, we affirm the trial court’s grant of Appellee’s petition to dismiss the charges pending against him.

The facts and procedural history are easily summarized as follows: On or about September, 1987, Lieutenant Thomas Houser, a police officer employed by the Shaler Township Police Department, told Appellee that charges relating to the alleged sexual abuse of his then two-and-one-half-year-old daughter would be dropped if he successfully passed a polygraph test. Relying on this promise, Appellee, at his own expense and without the advice of counsel, arranged to take such a test. Appellee passed this test, as well as a second test in 1988. In accordance with the agreement, no charges were initiated against Appellee at that time.

Almost four years later, two different police officers from the Shaler Township Police filed a criminal complaint accusing Appellee of sexually abusing his daughter during the period of June to August, 1987. Following a preliminary hearing, Appellee was held for trial on charges of involuntary deviate sexual intercourse, incest, indecent assault, corruption of minors, and endangering the welfare of children. After the district attorney elected to formally charge Appellee by information, present counsel for Appellee filed a petition to dismiss, based on the 1987 non-prosecution agreement. In the petition Appellee alleged that the entry of formal charges against him violated his constitutional rights, as well as public policy, and amounted to prosecutorial misconduct. On February 19,1992, after hearing oral argument, the trial court filed an order granting the petition. A timely motion to reconsider filed by the Commonwealth was denied and this appeal followed.

On appeal, the Commonwealth claims that it cannot be bound by the agreement between Appellee and Lieutenant Houser because neither the district attorney, nor any authorized representative or agent of the prosecutor’s office, was privy to the non-prosecution agreement. Thus, the Commonwealth argues that the agreement is without legal consequence. The Commonwealth also asserts that the unauthorized agreement is unenforceable as a matter of public policy; it argues that such unbridled discretion is beyond the scope of municipal police powers and is an unacceptable impediment to the district attorney’s traditional prerogative to evaluate criminal complaints to determine whether a charge should be brought against a suspect. Finally, the Commonwealth asserts that a less drastic remedy is available to correct the reneging on the agreement; namely, the suppression of any inculpatory statements directly or indirectly derived from Appellee’s polygraph test. The Commonwealth argues that this remedy would “protect the public interest in the fair and efficient administration of criminal justice within the jurisdiction of the District Attorney, and it would have the salutary effect of restoring [AJppellee to the status quo ante.” Commonwealth’s Brief at p. 6.

Appellee responds to these claims by stating that, although these facts present an issue of first impression in Pennsylvania, courts of other states have upheld similar non-prosecution agreements between a criminal defendant and a prosecutor or a police department because it is a pledge of public faith which both fundamental fairness and detrimental reliance require that the agreements bind the prosecution. The trial court agreed with Appellee, stating: “This Court finds that fundamental fairness and public confidence in government officials and their agents require that the prosecution be held to the terms of any promises which were made to obtain performance on the part of [Appellee].” Trial Court Opinion at p. 1.

Before discussing the merits, if any, of the Commonwealth’s claims, we must first remember the narrow issue presented and the pertinent standard of review. At issue is whether the trial court properly dismissed the charges brought against Appellee. “The decision to grant or deny a motion to quash is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion.” Commonwealth v. Niemetz, 282 Pa.Super. 431, 439, 422 A.2d 1369, 1373 (1980). An abuse of discretion has been defined as

not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will as shown by the evidence or the record, discretion is abused.

Commonwealth v. Kocher, 529 Pa. 303, 306, 602 A.2d 1308, 1310 (1992), (quoting Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982)). Moreover, as an appellate court, we are bound by the trial court’s findings of fact, if supported by the record. Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984). With these standards in mind, we must determine whether the trial court abused its discretion in dismissing the charges brought against Appellee on the basis of the 1987 agreement not to press charges.

Our research discloses no Pennsylvania appellate decisions that are controlling, given the present factual scenario. In Commonwealth v. Ginn, 402 Pa.Super. 405, 587 A.2d 314 (1991), the Ginns were originally charged with various crimes involving an alleged loss of funds by Mrs. Ginn’s employer. Due to the complexities of the prosecutions, the parties appeared before the trial court and entered into an agreement, with court approval, that a mutually acceptable accountant would audit the employer’s books to determine whether the Ginns diverted funds. The agreement further provided that if a diversion of funds was found to have occurred, the Ginns would plead guilty to the charges; if no diversion was found, the Commonwealth agreed to nol pros the charges against the Ginns.

An audit was performed in accordance with the agreement. Upon receipt of a final report finding no theft or improper use of computers, the Commonwealth sought to challenge the report by claiming an improper audit was performed and that the auditor failed to review all the necessary documents. In response, the Ginns filed a motion to dismiss the prosecution and to enforce the agreement. The trial court scheduled a hearing on the matter, but refused to hear any testimony from the Commonwealth regarding the preparation of the report because the agreement did not provide for judicial determination of the audit and the Commonwealth had a “moral obligation here to live up to the agreement.” Id. at 408, 587 A.2d at 315 (quoting N.T. 1/23/90 at pp. 29-30). Thus, in accordance with the agreement and the auditor’s findings, the trial court dismissed the charges against the Ginns -with prejudice.

On appeal to this Court, the Commonwealth sought a reversal of the trial court’s dismissal, again claiming that the audit was incomplete and improperly prepared and that the trial court erred in refusing the Commonwealth’s request to present evidence to support these claims. Declining to review the specific allegations made by the Commonwealth regarding the preparation of the report, the panel affirmed the trial court’s dismissal of the prosecutions. In support of this decision, the panel found that the Commonwealth had a duty to abide by the terms of the agreement it made with the Ginns. Because the agreement did not allow for the subsequent challenge of the auditor’s findings in court, the auditor’s final report was controlling. Recognizing that the Ginns took a risk in agreeing to plead guilty should the auditor find that funds were diverted, and the agreement would be enforced by the courts under that scenario, the panel likewise held that the courts must hold the Commonwealth to the terms of the agreement and thus affirmed the dismissal of the charges. The panel further stated:

We find analogous the cases in this Commonwealth where a prosecutor and a defendant enter a plea agreement. In speaking on such a situation our Supreme Court has stated that there is an affirmative duty on the part of the prosecutor to honor any and all the promises made to a defendant in exchange for the defendant’s plea. Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976).
Our courts have demanded strict compliance with that duty in order to avoid any possible perversion of the plea bargaining system, evidencing the concern that a defendant might be coerced into a bargain or fraudulently induced to give up the very valued constitutional guarantees attendant the right to trial by jury.
Id. at 458-459, 353 A.2d at 444.
Similar concerns over the public faith placed on such a pledge have been expressed by courts which have considered the enforceability of agreements to drop a prosecution based upon the results of a polygraph test. See Annot., 36 A.L.R.3d 1280 (1971) (for a collection of cases).

Id. at 410, 587 A.2d at 316.

The cases discussed in the above-referenced annotation refer to instances where the state prosecutor enters into an agreement with the defendant that, if he passes a polygraph test, the charges filed against him would be dropped. The prosecutor then attempted to renege on the promise. In each instance, the court upheld the enforceability of the agreement. See generally, State v. Davis, 188 So.2d 24 (Fla.App.1966), cert. den., 194 So.2d 621; Butler v. State, 228 So.2d 421 (Fla.App.1969). More recent cases decided in other sister jurisdictions have also held that the prosecutor is bound by the terms of an agreement not to prosecute if the defendant passes a polygraph test. See generally, People v. Reagan, 395 Mich. 306, 235 N.W.2d 581 (1975); People v. Starks, 146 Ill.App.3d 843, 100 Ill.Dec. 307, 497 N.E.2d 187 (2d Dist.1986).

These cases differ from the present case in several respects; in some of the cases the non-prosecution agreement, conditioned on the passing of a polygraph test, was approved by the court, and, in all of the cases noted above, the agreement was entered into between the defendant and the prosecution rather than a municipal police officer investigating the charges as in the present case. However, because we find the principles of fairness espoused in the above cases to be equally applicable to promises made by the police conducting the investigation, we find that the Commonwealth is bound by the agreement under the facts of this case. Moreover, courts in several states have upheld promises made to defendants by police officers investigating the crime, without the participation of the prosecutors. These decisions, while not always dealing with the taking of a polygraph test as a condition of the agreement not to prosecute, hold that the agreements are binding and preclude prosecution of the defendants.

In People v. Fisher, 657 P.2d 922 (Colo.1983), the defendant was asked by police officers to permit them to videotape him while he discussed how he committed burglaries and disposed of the stolen property. The police promised the defendant that the videotape was to be used as an instruction device for police cadets and that the videotape would not be used against him in a criminal proceeding. Subsequently, the defendant was arrested and charged with burglary. The prosecution attempted to use the videotape as evidence. The court held that the police officer’s promise would be upheld because the videotape implicated the defendant’s privilege against self-incrimination and constitutional right to counsel, and because the defendant reasonably and detrimentally relied upon the officer’s promise by fully performing his part of the bargain. The court also cited principles of fundamental fairness in upholding the promise. See also People v. Manning, 672 P.2d 499, 506 (1983) (the Supreme Court of Colorado upheld a promise between the defendant and a police officer that, if she disclosed information about her missing son, she would not be prosecuted, finding that the police officer was acting with the apparent authority of the government and that “if police officers were free to make promises to actual or potential defendants, knowing that the government could, without consequence deny or disaffirm those commitments, the temptation would be great to use unauthorized promises as a device for extracting confessions”).

Federal courts have also upheld agreements between investigating authorities and a defendant, and have further held that the prosecution is bound by the agreement. In U.S. v. Carrillo, 709 F.2d 35 (9th Cir.1983), agents of the Drug Enforcement Agency offered not to prosecute the defendant for a drug offense if he cooperated with the government’s investigation of certain suspected drug traffickers. The defendant agreed and cooperated, but stated that he would not testify in court. After refusing to testify when asked to do so, the defendant was held in contempt and indicted for possession of drugs on the ground that he breached his cooperation agreement. The court found that the indictment violated the government’s promise not to prosecute the defendant as he had performed his obligations under the agreement and that an obligation to testify was not part of the agreement. The court further stated that “[u]nder settled notions of fundamental fairness the government was bound to uphold its end of the bargain.” Id., 709 F.2d at 37.

Particularly persuasive is the district court’s holding in U.S. v. Cooke, 650 F.Supp. 991 (D.Md.1987), in which an officer of the Maryland State Police and a special agent of the FBI told the defendant that she would not be prosecuted and would enjoy immunity if she gave them information regarding a bank robbery. The defendant complied but was subsequently in-dieted for robbery. At a hearing on defendant’s motion to dismiss the indictment, the special agent of the FBI testified that the defendant signed a waiver of rights form and was advised that her signing the form was “procedure” and did not mean that she was being arrested. The defendant agreed to take a polygraph test and afterward was told by the investigators that she had been cooperative and would not be prosecuted. Subsequently, the defendant came to the police station and gave a written statement after she was promised immunity from prosecution by the state trooper.

The district court began its discussion by noting that courts have developed the concept of equitable immunity through which they may enforce informal or procedurally flawed grants of immunity on equitable grounds. See, e.g., Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982); United States v. Carpenter, 611 F.Supp. 768 (N.D.Ga.1985). In determining whether such an informal agreement not to prosecute should be enforced, the court referred to a three-part inquiry developed in Rowe:

[A]s a matter of fair conduct, the government ought to be required to honor such an agreement where it appears from the record that: (1) an agreement was made; (2) the defendant has performed on his side; and (3) the subsequent prosecution is directly related to offenses in which the defendant, pursuant to agreement, either assisted with the investigation or testified for the government.

Rowe v. Griffin, 676 F.2d at 527-28.

The Maryland District Court in Cooke had no problem readily recognizing that the promise not to prosecute was made. The court further found that it did not matter that the promise came from a state trooper rather than a federal agent; a joint investigation was conducted, and the defendant had no reason to suspect, absent a complete explanation from the state trooper, that the immunity offered was not full immunity from prosecution. (The state trooper had informed the FBI agent that he told the defendant he would not bring state charges because the FBI was handling the matter.) The Cooke court also found that the defendant’s prosecution was directly related to the offense in which she assisted the investigation. The more difficult question district court confronted was whether the defendant performed her side of the bargain. The Commonwealth argued that defendant’s prosecution was not based on any statements made in cooperation with the investigation but was based on subsequent statements made by the arrested perpetrators of the crime that the defendant was not being truthful and was much more involved in the robbery. Thus, the district court found that the defendant’s truthfulness could best be ascertained at trial and, accordingly, deferred decision on the motion to dismiss until after all the evidence had been heard.

We find the three-part inquiry of equitable immunity to be well-reasoned and hereby adopt the same test and apply it in the present case. In the case sub judice, there can be no question that the agreement was entered into between the Shaler police officer and Appellee. A stipulation to this fact was entered into between Appellee and an assistant district attorney and was presented to the trial court. It is also clear that Appellee fully performed his side of the bargain. Without advice of counsel and at his own expense, Appellee hired a polygraph examiner and passed the test. A year later Appellee again took such a test and passed. It is equally clear that the Shaler police officer did not press charges in 1987. Finally, it is also beyond question that the subsequent charges filed against Appellee arose from the very same conduct about which he was questioned in polygraph tests and that there was no new evidence to support the charges. Under these circumstances, it is a matter of “fundamental fairness” that the Commonwealth be bound by the agreement entered into between the police officer and Appellee.

Throughout its appeal, the Commonwealth claims it cannot be held to the agreement because it was not a party or privy to the agreement, that the police officer had no authority to enter into the agreement, and, therefore, that it the agreement is of no legal consequence. As seen in the cases discussed above, the courts of other states, in reaching their decisions, did not explore the authority of the government agent making the non-prosecution agreement but instead accepted the apparent authority of the law enforcement agents to bind those involved in a subsequent prosecution. As stated in People v. Fisher, supra:

“[i]t is not constitutionally significant, in our view, that the request for videotaping and the promise of non-use originated with Detective Cain rather than the prosecutor. Detective Cain was no less an agent of the government than the prosecutor and was at least equally as capable of implicating the defendant’s constitutional rights by his request---The People argue that the defendant has no due process right to enforcement because Detective Cain lacked authority to bind Colorado officials. The appropriate consideration, as we see it, is not the power of an Oklahoma City police officer to bind another state, but, rather, the scope of defendant’s due process right to enforce a governmental promise not to use evidence against him, upon which he detrimentally relied in furnishing incriminating information to the police.

Id. 657 P.2d at 929, n. 11, 930. See also Restatement (Second) of Agency § 8. More significant in these cases is the fact that the defendant fully performed his or her end of the bargain and that equity required the prosecution to uphold its end of the agreement.

The Commonwealth also argues that a less drastic remedy of suppression is available in the present case. However, we note that there is nothing to suppress in the present case; there is nothing of record that indicates what statements were made by Appellee during the polygraph examinations.

Finally, the Commonwealth argues several public policy reasons in support of its claim that agreements entered into between municipal police officers and actual or potential defendants should not be binding on the Commonwealth. The Commonwealth argues that such unbridled discretion is beyond the scope of municipal police powers and is an unacceptable impediment to the district attorney’s traditional prerogative to evaluate criminal complaints to determine whether charges should be brought against a suspect. The answer to this concern is that a strict rule regarding non-prosecution agreements cannot be established; it would be foolish indeed for this Court to hold either that all agreements made by police officers during their investigations are binding on the prosecution or, to the contrary, that no agreement made by the police is binding. Instead, the agreement must be judged on a case-by-case basis and must involve the discretion of the trial court which hears the evidence. The three-part inquiry established in Rowe, supra, and followed in Cooke, supra, provides some standards to guide the trial court in its determination and upon which to base appellate review. Moreover, the trial court can look to such factors as whether the defendant waived his constitutional rights against self-incrimination and to counsel, and whether the agreement was entered into before charges were filed or whether the agreement arises after a criminal information was filed. If the agreement with the police occurs after an information is filed, great deference should be paid to the district attorney since the prosecution is now under his control.

In the present case, the record shows that Lieutenant Houser was the sole law enforcement authority involved in investigating the 1987 allegations of child sexual abuse brought against Appellee. The parties reached an agreement that no charges would be brought if Appellee passed a polygraph test. Without advice of counsel, Appellee, noting the seriousness of the charges against him, arranged to take such a test and passed it not once but on two occasions. Lieutenant Houser kept his part of the bargain by not pressing charges. Four years later, different Shaler police officers, with no new evidence of abuse, filed charges stemming from the 1987 allegations. There is no evidence of record that Appellee knowingly waived his constitutional rights prior to taking the polygraph tests. Under these circumstances, we find that the trial court did not abuse its discretion in finding that fundamental fairness and confidence in government officials require that the District Attorney be bound by the agreement. Thus, we affirm the grant by the trial court of Appellee’s motion to dismiss.

Order affirmed.

CAVANAUGH, J. files a dissenting Opinion joined by ROWLEY, President Judge, and OLSZEWSKI and POPOVICH, JJ.

OLSZEWSKI, J. files a dissenting Statement joined by ROWLEY, President Judge.

DEL SOLE, J., joins and files a concurring Statement.

FORD ELLIOTT, J., joins and files a concurring Statement.

Dissenting Opinion by

CAVANAUGH, Judge:

I respectfully disagree with the decision of the majority that a district attorney, as an elected official in a county, is bound by the representations made by any police officer also working within that county to a criminal suspect that prosecution will not occur for a particular offense if the suspect complies with conditions set out by the police officer. This usurpation of the statutory authority of the district attorney should not be condoned by this court.

It is important to note what issues are not presented by this case. This case is not about 1) a prosecutor’s non-observance of a duly negotiated plea agreement with a criminal defendant; or 2) the suppression of evidence seized by pólice in violation of a criminal suspect’s constitutional rights, or 3) detrimental reliance by a criminal suspect upon misrepresentations made by a police officer. Rather this case involves an issue of arrogation by a township police officer of the exclusive authority conferred upon the county district attorney.

The defendant is this case had no plea agreement with the district attorney’s office. He dealt with a township police officer and twice took a lie detector test upon the representation of the police officer that no prosecution would ensue should he pass the lie detector test. The majority concludes that “fundamental fairness” requires that any subsequent action against the defendant be dismissed. I disagree and would find that the defendant has not been prejudiced by the ultra vires representations made by the police officer.

As noted by Judges Olszewski and Popovich in their dissenting opinions in Commonwealth v. Stipetich, 423 Pa.Super. 427, 621 A.2d 606 (1993) the district attorney is entrusted with conducting the criminal litigation of the county on behalf of the'electorate. See, Commonwealth v. Stipetich, supra, dissenting opinion by Olszewski, J. at -, 621 A.2d at 613; 16 P.S. § 4402(a). I adopt the cogent reasoning of Judge Popovich’s dissent, as well, particularly his reliance upon the instructive case of People v. Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988). The authority to charge persons with violations of the criminal law resides solely with the district attorney. This power is conferred by statute and may not be impugned by either the judiciary or other arms of law enforcement machinery. As made clear by the supreme court in Commonwealth v. Schab, 477 Pa. 55, 383 A.2d 819 (1978) (recognizing the broad and exclusive power in the office of elective district attorneys when created in 1850), not even the Attorney General has a common law or statutory right to supercede the charging authority of the district attorney without the explicit approval of the president judge of the county. A fortiori, an unelected, police officer has no authority to bind the district attorney to agreements which touch upon the charging function of that office. The majority’s holding to the contrary creates the untenable situation described by Judge Popovich of endowing, “untold thousands of police throughout this Commonwealth with this sensitive, fundamental power.” See, Stipetich, supra, dissenting opinion by Popovich, J. at -, 621 A.2d at 615.

The majority in this case, and in Stipetich, engages in the enunciation of a new precept of Pennsylvania law, beyond our authority as an intermediate appellate court. See, Commonwealth v. Smith, 404 Pa.Super. 553, 559, 591 A.2d 730, 733 (1991) (citations omitted), reversed on other grounds, 532 Pa. 177, 615 A.2d 321 (1992). Our supreme court has given no indication that it would condone the encroachment upon the statutory authority conferred upon the office of the district attorney contemplated by the majority decision. Rather, as indicated by the holding in Schab, supra, the supreme court has closely limited the means by which the charging function of the district attorney may be compromised.

The appellee has suffered no actual prejudice by the Commonwealth’s filing charges against him. The surprise he may have experienced at being charged some four years after-the-fact of the commission of the offenses does not constitute legal prejudice. He is not entitled to any “benefit of the bargain” because the consideration tendered by him was illusory and nonexistent. He agreed to take polygraph tests in return for no prosecution if he passed. Ab initio, a person has no right not to be charged with a criminal offense if there exists probable cause. The results of a polygraph test are not admissible for any purpose in a court of law, see, Commonwealth v. Rodriguez, 343 Pa.Super. 486, 495 A.2d 569 (1985), including the preliminary hearing stage at which the Commonwealth must make out a prima facie case. Therefore, the fact that the appellee took the polygraph tests is of no legal significance regarding the burden borne by the Commonwealth in establishing either a prima facie case or in proving guilt beyond a reasonable doubt. Here, appellee is currently in the same position vis a vis the retention of his rights in defending the charges had he never agreed to take the polygraph tests. He has relinquished no rights or protections which he would otherwise enjoy had he not taken the tests.

The fact that in these cases it appears to be unfair to a defendant that the courts would not enforce as binding on the Commonwealth an agreement with a law enforcement officer containing an unauthorized, indeed, illicit, “deal” should cause us no pause in our adherence to fundamental principles of governmental authority. Depending upon the circumstances, our system of law might give relief to the unfairness in other forms such as suppression of evidence wrongfully collected, prosecutorial restraint, or accepted avenues of judicial nullification. See, Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1990) (A trial court may rectify errors “in the interest of justice” which would otherwise result in unfairness.)

Because the majority decision is an incursion into the sole rule-making authority of the supreme court and is contrary to the statutory law of this Commonwealth, I dissent and would remand for trial.

ROWLEY, President Judge, and OLSZEWSKI and POPOVICH, JJ., join in this dissenting opinion.

Dissenting Statement by

OLSZEWSKI, Judge:

The facts of this case present a substantially similar situation to that presented in Commonwealth v. Stipetich, 423 Pa.Super. 427, 621 A.2d 606 (1993). The issue is whether the police may enter into a non-prosecution agreement which is enforceable against the district attorney. It is our position that the General Assembly has provided absolute discretionary power to the district attorney in matters involving prosecution of citizens accused of criminal conduct in this Commonwealth. 16 Pa.S.A. § 1402(a); Stipetich at -, 621 A.2d at 613 (Olszewski, J., dissenting). An investigating officer may not, consistent with the statute, enter into a non-prosecution agreement with a person facing potential prosecution. Insofar as Judge Cavanaugh’s dissent stands for this proposition, I join him wholeheartedly.

I write separately to emphasize my position regarding the remedy a court should provide a defendant whose constitutional rights. In Stipetich, I proposed that the trial court may not dismiss charges against a defendant when the police enter into a non-prosecution agreement without the knowledge and consent of the district attorney. Rather, at 'the appropriate juncture, the defendant should file a motion to suppress any evidence procured in violation of his or her constitutional rights. This remedy will put the defendant in the same position that he would have been had no improper conduct occurred, while at the same time protect the district attorney’s statutory powers. Stipetich at -, 621 A.2d at 615.

Under the facts of this case, I agree that defendant might not be entitled to a remedy since the fruits of the improper conduct will be inadmissible at trial. Such a finding, however, should be more appropriately reserved for a hearing after defendant makes an appropriate motion to suppress. In short, I wish to emphasize that a decision to reverse the trial court’s dismissal of the charges should be due to the improper abrogation of the district attorney’s statutory duties by the police. Whether the evidence procured as a result of the improper conduct “prejudiced” defendant by violating his or her constitutional rights is a matter independent from the determination of whether the prosecutor should be entitled to pursue the case.

Judge Cavanaugh also "writes that an appropriate remedy in a case such as this one might be “suppression of evidence wrongfully collected, prosecutorial restraint, or accepted avenues of judicial nullification.” Dissenting opinion of Judge Cavanaugh, p. 469. In support of a remedy of “judicial nullification,” the dissent cites Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991), wherein our Supreme Court held that a trial judge may “in the interest of justice” rectify prejudicial trial court errors. Specifically, the Court in Powell upheld the trial court’s sua sponte grant of a new trial to a defendant who was prejudiced by the trial court’s denial of a motion for a continuance. Id. at 294, 590 A.2d at 1248. Trial court remedies molded “in the interest of justice” are subject to review under an abuse of discretion standard. Id.

Unlike Powell, however, cases where a police officer enters into a non-prosecution agreement without consulting the district attorney do not involve trial court errors which the trial court may correct on its own motion. Rather, the harm done, usurpation of the district attorney’s statutory duties, occurs well before any trial ever occurs. A judicial remedy which attempts to cure the- harm by dismissing charges against a defendant does not remedy the harm at all—it exacerbates it. We have "written:

The function of the courts of any jurisdiction is to interpret an already existing legislative enactment, not engraft upon it any novel conditions or mandates when its clear language does not lend itself to any such requirement similar to that suggested by appellant here. To do so would be a judicial usurpation of a legislative prerogative.

Commonwealth v. Knowles, 373 Pa.Super. 203, 207, 540 A.2d 938, 940 (1988), alloc. denied, 520 Pa. 614, 554 A.2d 507 (1988).

In conclusion, I am compelled to express my opinion that a non-prosecution agreement reached without the knowledge and consent of the district attorney is void from the start. Judicial recognition, at any level, of a remedy which frustrates the powers of the district attorney is an abuse of discretion. The harm suffered by defendant may well be remedied, but not by a dismissal of charges.

Subject to the observations above, I join Judge Cavanaugh in dissent.

ROWLEY, President Judge, joins in this dissenting statement.

Concurring Statement by

DEL SOLE, Judge:

I join the Opinion authored by Judge Hudock. I believe that the burden of controlling agreements between local police and suspects should rest "with the local District Attorney’s office, as expressed in my Concurring Statement in Commonwealth v. Stipetich, 423 Pa.Super. 427, 621 A.2d 606, (1993).

I further read Judge Cavanaugh’s dissent in this matter as an endorsement of the Majority’s disposition. Specifically, Judge Cavanaugh acknowledges that our system of law may relieve unfairness through “accepted avenues of judicial nullification.” Dissenting Opinion at 469. I view the granting of a motion enforcing an agreement following a hearing before a trial judge under the standards we set forth today in these companion cases, as an accepted avenue of judicial nullification.

Concurring Statement by

FORD ELLIOTT, Judge:

I join in the majority opinion’s rationale and the result that dismissal of the charges in this case was a proper remedy. I do so because I believe implicit in the majority’s analysis is the requirement that one who seeks to enforce a nonprosecution agreement must show some detrimental reliance which would rise to the level of prejudice or manifest unfairness. Instantly, the trial court found such unfairness and granted relief accordingly.

      . 18 Pa.C.S. § 3123(5), § 4302, 3126(6), § 6301 and § 4304, respectively.

      . The court granted the relief requested by the defendant, namely, the suppression of the videotape. In Commonwealth v. Peters, 473 Pa. 72, 373 A.2d 1055 (1977), our Supreme Court suppressed as involuntary statements made by a defendant because a county detective promised him that the most that would happen to him was that he would be held as a material witness or released on nominal bail. The defendant was subsequently charged, tried, and convicted. While we note that the high court found that the prosecution was bound by the promise of the county detective, because he had the apparent authority to enter into such an agreement, we do not believe, as shall be discussed more fully infra, that suppression is the appropriate remedy in the present case.

       The problem created by this case is easily avoided by responsible governmental officials instructing and requiring law enforcement officers to refrain from making promises beyond their ability to perform. This is a relatively simple solution within the power of the state whereas, in contrast, a criminally accused cannot realistically be expected to know or discover the extent of a law enforcement officer’s authority in the matter of criminal prosecutions.”

      . In order to clear up any possible misunderstanding concerning the scope of judicial nullification, I do not interpret this concept to include authority of the trial court to enter an interlocutory order which results in usurpation of the prosecutorial function. Rather, by judicial nullification is meant accepted modes of the exercise of judicial discretion at the adjudicatory or dispositional phases, as was done in Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1990). Other examples of judicial nullification might be direction of a verdict, entry of a not guilty verdict in a nonjury case, arrest of judgment, or a finding of de minimus infraction.