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COMMONWEALTH PENNSYLVANIA v. JERRY POTOSNAK (07/24/81)

filed: July 24, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
JERRY POTOSNAK, APPELLANT



No. 480 April Term, 1979, Appeal from Order, Dated May 10, 1979, Denying Appellant's Motion to Quash Information, Court of Common Pleas, Allegheny County, Criminal Division, at CC7805811A.

COUNSEL

George G. Mahfood, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth and Johnson, JJ. Spaeth, J., concurs in the result.

Author: Johnson

[ 289 Pa. Super. Page 117]

This is a direct appeal from the Order denying Appellant's Motion to Quash Information on grounds of double jeopardy. After a complete review of the record and argument advanced by Appellant, we affirm.

[ 289 Pa. Super. Page 118]

Appellant was charged with Burglary,*fn1 Criminal Attempt,*fn2 Rape,*fn3 Indecent Assault,*fn4 Aggravated Assault*fn5 and Involuntary Deviate Sexual Intercourse.*fn6 Pursuant to a plea agreement, Appellant pled guilty to each of the foregoing charges, with the sole exception of Rape. The trial judge accepted the plea. The plea agreement provided that, in return for the guilty plea, the prosecutor would move for the dismissal of the Rape charge and would make no recommendation as to sentencing.

At the time set for sentencing, but prior to the imposition of sentence, Appellant learned of the existence of a sentence recommendation in the pre-sentence report*fn7 attributed to the prosecutor. The trial judge remarked that he could not be certain of the impact of the sentence recommendation on his decision to incarcerate the Appellant for some length of time. The trial judge suggested Appellant take his plea before another judge for imposition of sentence; however, Appellant refused this offer. Appellant then withdrew his plea of guilty. Thereafter, the Commonwealth successfully moved to have the Rape charge reinstated.

Appellant filed a timely Motion to Quash Information, on a theory of double jeopardy, alleging that because prosecutorial misconduct had forced Appellant to withdraw his plea,

[ 289 Pa. Super. Page 119]

    the Commonwealth was precluded from bringing Appellant to trial. Hearings were conducted on Appellant's Motion.*fn8

The sole issue before that court was whether the prosecutor made a recommendation in violation of the plea agreement, thus unfairly denying Appellant the benefit of the agreement. As a result of those hearings, an Order was entered denying Appellant's Motion to Quash Information. This appeal followed.

Absent some abuse of discretion in resolving the inconsistencies in the testimony, a reviewing court will not disturb the fact finder's determination. Commonwealth v. Johnson, 263 Pa. Super. 512, 398 A.2d 694 (1979).

Appellant's central allegation is that the prosecutor never denied making the statement in question and, therefore, the court abused its discretion in finding that the prosecution had not intentionally breached the plea agreement. We cannot agree.

This assertion on its face is contradicted by the record. On direct examination, the assistant district attorney involved in the plea bargain testified as follows:

"Q. Do you recall speaking to Mr. Ward, the Probation Officer, on this?

"A. I do recall having a conversation with him, yes.

"Q. In that conversation, do you recall discussing any recommendation as to sentence?

"A. The conversation was a short one. It was, I believe, one afternoon. Great details of the conversation, no, I don't have a detailed recollection of it. It was, as I said, very short, less than five minutes. I referred to, and I keep with me, a log of every case I tried since I came back from being an area Prosecutor, and I referred to that and told him -- the one thing that stuck in my mind is, I told him ...


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