Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal at No. CC8201049A.
Lawrence N. Claus, Pittsburgh, for Commonwealth, appellant.
John R. Carroll, Philadelphia, for appellee.
Spaeth, President Judge, and Wickersham, Brosky, Wieand, Cirillo, Del Sole, Montemuro, Johnson and Popovich, JJ. Spaeth, President Judge, files concurring opinion. Wickersham, J., files dissenting statement.
[ 341 Pa. Super. Page 235]
In this appeal, our court is asked once again to delineate the scope of the power and authority of the Attorney General to prosecute criminal cases vis-a-vis the power and authority that is similarly vested in the district attorneys of the various counties. This controversy, like the mythological Phoenix, has repeatedly risen from the ashes renewed and regenerated; as many times as the courts and the legislature have attempted to resolve the conflict, it returns in a different form and in a different context, yet the substantive heart remains constant.
In this incarnation, the controversy is presented to us in the context of an appeal from an order of the Court of Common Pleas of Allegheny County granting a petition to quash criminal informations. The circumstances giving rise to this appeal are as follows.
The appellee, Bruce Carsia, was arrested and charged with bribery,*fn1 obstructing the administration of law,*fn2 conspiracy,*fn3 and solicitation*fn4 by Special Agent Dennis Danask of the Bureau of Criminal Investigation [BCI], the investigative
[ 341 Pa. Super. Page 236]
arm of the Office of the Attorney General. The charges arose out of an alleged attempt by the appellee, an Allegheny County attorney, to bribe two municipal police officers to fix a case, which was then pending before a West Mifflin Township District Justice, against two of the appellee's clients.*fn5
The two officers reported the incident to their superiors, who contacted BCI. Investigation of the incident, including the interception and taping of wire and personal communications, was conducted solely by the BCI. After charges were filed, the prosecution of the case was assumed by the Office of the Attorney General through Executive Deputy Attorney General Robert L. Keuch, who signed the information, and through Deputy Attorney General Lawrence N. Claus.
Prior to trial, the appellee, through counsel, filed a "Petition to Quash the Information/Request for Habeas Corpus or other Appropriate Relief." The petition alleged that the Office of the Attorney General lacked the requisite authority to prosecute the action, and that instead the district attorney of Allegheny County should prosecute the action. The petition further alleged that the Attorney General's sole grant of authority to prosecute was set forth in Section 205 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, No. 164 § 101 et seq, 71 P.S. § 732-101 et seq, and that the instant prosecution was not within any of the enumerated categories of that section, 71 P.S. § 732-205(a)(1)-(8).
A hearing on the petition was conducted before the Honorable Bernard L. McGinley. The deputy attorney general presented argument and testimony to the effect that the investigation was conducted with the knowledge and consent of the Allegheny County District Attorney, and that the prosecution was being conducted in the manner in which the district attorney would have conducted it. At the
[ 341 Pa. Super. Page 237]
conclusion of the hearing, the court concluded that the Office of the Attorney General was not authorized to prosecute the action under the Commonwealth Attorneys Act. The court therefore ordered that the information be dismissed.
The Commonwealth filed an "Application for Reconsideration of Defendant's Motion to Quash" alleging that the prosecution was authorized by Section 205(a)(1) and (2) of the Commonwealth Attorneys Act, 71 P.S. § 732-205(a)(1), (2). The application was denied by order of Judge McGinley on December 28, 1982. The office of Attorney General [hereinafter referred to as "Commonwealth"] immediately filed a notice of appeal.
Herein, the Commonwealth asserts that the lower court erroneously dismissed the information. The Commonwealth argues that the Office of the Attorney General possessed the power and authority to prosecute the action both under, and apart from, the Commonwealth Attorneys Act. We find no merit in these arguments. Before discussing the merits of these arguments, we must dispose of two preliminary questions.
The appellee argues that the instant appeal should be quashed because the Commonwealth has not been put out of court by the order of the lower court. The appellee alerts us to the fact that, subsequent to the dismissal of the instant information, an information charging the same offenses based on the same incident was filed by the Allegheny County District Attorney. The appellee argues that the Commonwealth is not out of court because the prosecution is being continued by the Commonwealth, merely through a different law firm. It is this kind of logic that gave the Sophists a bad name.
Regardless of the merits or status of the prosecution being conducted by the district attorney, an order has been entered in the present action terminating the prosecution of the charges. This order is a final order under Pa.R.A.P. 341(c), from which the Commonwealth properly may appeal.
[ 341 Pa. Super. Page 238]
Furthermore, it is an appeal in which substantial rights and interests are at stake. Thus, we decline the appellee's invitation to quash this appeal.
On the other matter, the Commonwealth would have us hold that the appellee lacks any standing to challenge the Attorney General's compliance with the Commonwealth Attorneys Act. The thrust of this argument is that the Act affords no express remedy wherein the Attorney General prosecutes an action for which there is no express grant of authority; consequently, it is argued that the remedy utilized by the lower court's dismissal of the information was improper. The Commonwealth's argument is viable only if the Commonwealth Attorneys Act is read in a vacuum devoid of other statutes and rules.
The case at hand concerns not only the respective spheres of authority of the Attorney General and the district attorneys of the various counties, but also the basic requirements for a valid information.
Both the legislature and the supreme court have promulgated requirements to be followed with respect to the filing of informations. Pa.R.Crim.P. 225(a) mandates that "the attorney for the Commonwealth . . . shall proceed by preparing an information and filing it with the court of common pleas." Pa.R.Crim.P. 225(b) provides that "[t]he information shall be signed by the attorney for the Commonwealth . . . ." The reason for the signature requirement was explicated in Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983) wherein it was stated:
Basically, the interest sought to be protected by the signature requirement of Pa.R.Crim.P. 225 is the right of a citizen to be free from unjust or unduly oppressive government interference. In the context of the filing of a criminal information, this interest is protected in part, by our requirement in Pa.R.Crim.P. 225 that the information be signed by the government official authorizing the filing of the information . . . . Thus, due process requires that when the Commonwealth elects to file a criminal information against an individual, a particular identifiable
[ 341 Pa. Super. Page 239]
government official must be named on the information, that person must sign the information by manual or facsimile signature, and the signatory must be prepared to establish that the information meets all legal requirements, should he be called upon to do that by a court of competent jurisdiction.
Id., 501 Pa. at 587-588, 462 A.2d at 656. It is axiomatic that in establishing that the information meets all legal requirements the person signing that information must show that he is authorized to conduct the prosecution. Otherwise the information cannot meet the requirement that "the prosecution is carried on in the name of and by the authority of the Commonwealth of Pennsylvania." Pa.R.Crim.P. 225(b)(1); see also Pa.R.Crim.P. 101A-Comment, which states:
As used in this rule, "Attorney for the Commonwealth" is intended to include not only the District Attorney and any deputy or assistant district attorney in the county, but also the Attorney General, and any deputy or assistant attorney general, in those cases in the county which the Attorney General is authorized by law to prosecute. (Emphasis added).
Alternatively, it is mandated by statute that "[t]he district attorney sign all informations." 42 Pa.C.S. § 8931(c). The statute continues in subsection (i) to define "district attorney" as including "a special attorney appointed by the Attorney General in the manner provided by statute." 42 Pa.C.S. § 8931(i). In criminal prosecutions, the Attorney General's power to delegate the responsibility of executing his function is set forth in Section 205(d) of the Commonwealth Attorneys Act, which states:
(d) Powers when prosecuting. -- Whenever the Attorney General prosecutes a criminal action, or appeal, he may employ such special deputies as are necessary for that purpose; such deputies shall take the oath of office and be clothed with all the powers, and subject to all the limitations imposed by law upon district attorneys, including the power to sign informations or indictments.
[ 341 Pa. Super. Page 240]
Whenever the Attorney General intervenes in a criminal action, the costs incurred as a result of the intervention shall be paid by the Commonwealth.
It is clear, however, that an Attorney General or any other official can only delegate an authority that that official possesses. Thus, unless the Attorney General was authorized to conduct the prosecution against the appellee, dismissal of the information was warranted.
We note as a final preliminary matter, that the Commonwealth raises other matters under the rubric of "standing", i.e., an assertion that the appellee challenged his arrest via the petition to quash, and that such a challenge was waived as untimely filed; and an assertion that the appellee challenged the jurisdiction of the court. We dismiss these assertions as being grounded in a misconception of the issues in the case, and having done so, we shall proceed to the more substantial aspects of the appeal.
The Commonwealth advances three arguments in support of its assertion that the lower court erred. We shall address these arguments in a manner which facilitates the exposition of the past problems the courts and the legislature have faced in delineating the bounds of the Attorney General's authority.
The Commonwealth argues that under the Pennsylvania Constitution, the Attorney General was authorized to investigate and prosecute the charges against the appellee. On May 16, 1978, the electorate approved a "constitutional amendment creating the office of elected Attorney General to replace the officer appointed by the Governor under constitutional authority since 1874." (Emphasis added.) JOINT STATE GOVERNMENT COMMISSION: OFFICE OF ELECTED ATTORNEY GENERAL Final Report at 1 (1978). Pa. CONST. Art. 4, § 4.1 provides:
An Attorney General shall be chosen by the qualified electors of the Commonwealth on the day the general election is held for the Auditor General and State Treasurer; he ...