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COMMONWEALTH PENNSYLVANIA v. EDWARD KHOREY (11/01/85)

filed: November 1, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
EDWARD KHOREY, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. 8201051A.

COUNSEL

Vincent C. Murovich, Jr., Pittsburgh, for appellant.

Lawrence N. Claus, Pittsburgh, for Commonwealth, appellee.

Spaeth, President Judge, and Wickersham, Brosky, Wieand, Cirillo, Del Sole, Montemuro, Johnson and Popovich, JJ. Spaeth, President Judge, files a concurring opinion in which Montemuro, J., joins. Wickersham, J., files a concurring statement. Del Sole, J., files a dissenting opinion.

Author: Wieand

[ 347 Pa. Super. Page 173]

May a defendant withdraw a negotiated plea of guilty after sentence has been imposed when, in a related case, it is determined that prosecution should have been brought by the District Attorney of Allegheny County and not by the Attorney General of Pennsylvania? The trial court refused to permit the withdrawal of the guilty plea under these circumstances. We affirm.

On January 6, 1982, Edward Khorey, a police officer in the Borough of Munhall, was arrested and charged with bribery, criminal solicitation, obstructing the administration of law, and criminal conspiracy in connection with an alleged attempt by Bruce Carsia, Esquire, to "fix" a criminal case in which Carsia's clients were involved. The arrest was made as a result of an investigation conducted by the

[ 347 Pa. Super. Page 174]

Bureau of Criminal Investigation, a division of the Office of the Attorney General of Pennsylvania. In addition to the charges filed against Khorey, the Attorney General prosecuted Carsia and others involved in the alleged bribery attempts. On September 20, 1982, Khorey filed a pre-trial motion to dismiss the information on grounds that the Attorney General lacked the power and authority to investigate and/or prosecute him for criminal conduct. This motion was subsequently withdrawn as part of a plea agreement the terms of which required Khorey to enter pleas of guilty to all charges in exchange for a sentence of probation. The plea agreement was accepted by the court. Accordingly, Khorey entered pleas of guilty to all charges, and on January 24, 1983 was sentenced to probation for two years for bribery. Sentence was suspended on all remaining charges.

In the criminal action against Bruce Carsia, the trial court subsequently held that the Attorney General lacked authority to prosecute under the Commonwealth Attorney's Act, 71 P.S. ยง 732-101 et seq. The information signed by the Attorney General charging Carsia, therefore, was dismissed.*fn1 Khorey thereupon moved to withdraw the plea of guilty on which he had been previously sentenced. The trial court denied the motion, and Khorey appealed.

"When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing. . . it is well established that 'a showing of prejudice on the order of manifest injustice' . . . is required before withdrawal is properly justified." Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982) (emphasis in original). See also: Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). Manifest injustice exists where "the plea was involuntary, or was entered without knowledge of the charge." Commonwealth v. Shaffer, supra 498 Pa. at 346, 446 A.2d at 593, quoting American Bar Association

[ 347 Pa. Super. Page 175]

Standards Relating to Pleas of Guilty (2d ed. 1980) Standard 14-2.1(b)(ii)(C).

"A plea of guilty constitutes a waiver of all non-jurisdictional defects and defenses . . . . When a defendant pleads guilty, he waives the right to challenge anything but the legality of his sentence and the validity of his plea." Commonwealth v. Montgomery, 485 Pa. 110, 114, 401 A.2d 318, 319 (1979). See also: Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982); Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974); Commonwealth v. McNeill, 453 Pa. 102, 305 A.2d 51 (1973).

Khorey was not unaware of the consequences of his guilty plea. He had filed a pre-trial motion to quash the information on grounds that the Attorney General lacked authority to prosecute him. He withdrew the motion to quash in order that he might accept a favorable plea bargain offered by the Commonwealth. The terms of that bargain required the prosecution, in exchange for Khorey's plea of guilty, to recommend a sentence of probation. The guilty plea was preceded by a full and complete colloquy which included advice regarding the limited number of issues which could be raised on appeal following a plea of guilty. Thus, appellant fully understood that by entering a plea of guilty he would be withdrawing and would thereby waive the right to challenge the Attorney General's authority to investigate and prosecute his alleged participation in criminal activity in Allegheny County. This was part of the price which he paid for the sentence of probation.

Appellant does not contend on appeal that he failed to understand either the charges to which he pleaded guilty or the effect of his guilty plea. He argues that manifest injustice occurred because Carsia and other defendants similarly investigated and prosecuted were able to argue successfully that the Attorney General lacked authority to investigate and prosecute alleged corrupt practices in Allegheny County. We reject this argument. Subsequent rulings

[ 347 Pa. Super. Page 176]

    in a related case do not constitute manifest injustice sufficient to permit a post-sentence withdrawal of a guilty plea.

The trial court, contrary to appellant's argument, did not lack jurisdiction to accept appellant's guilty plea and impose sentence. The Commonwealth Attorney's Act, supra, did not limit in any way the jurisdiction of the several courts of common pleas to hear and decide criminal cases. The statute served only to define the scope of the Attorney General's duties and responsibilities to investigate and prosecute criminal activity vis-a-vis the duties of the several district attorneys. Whether or not the Attorney General had authority to investigate and prosecute criminal activity was not determinative of the competency of the trial court to hear and determine controversies in criminal cases. Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974). The courts of common pleas of each judicial district are vested with "unlimited jurisdiction in all cases except as may otherwise be provided by law." Constitution of Pennsylvania, Article V, Section 5(b). The jurisdiction of the courts of common pleas to hear and decide criminal cases has been neither abrogated nor limited by the Commonwealth Attorney's Act.

When Edward Khorey entered pleas of guilty, he abandoned an uncertain argument in exchange for a sentence that was both certain and favorable. He thereby waived the right to question further the fact that he had been prosecuted by the Attorney General and not by the District Attorney of Allegheny County. He will not be permitted to resurrect his pre-trial motion after he withdrew it, entered a plea of guilty and was sentenced for his crime.

The judgment of sentence for bribery, therefore, will be affirmed. The indefinitely suspended sentences for the remaining offenses, however, will be vacated. In Commonwealth v. Ferrier, 326 Pa. ...


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