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MATTER COMMONWEALTH PENNSYLVANIA v. SALVATORE CHIMENTI (03/27/86)

decided: March 27, 1986.

IN THE MATTER OF COMMONWEALTH OF PENNSYLVANIA
v.
SALVATORE CHIMENTI



On sua sponte review, in the nature of prohibition with respect to the Orders of the Superior Court at No. 1977 Philadelphia. 1984, dated March 21, 1985, and as amended April 18, 1985.

COUNSEL

Michael Mustakoff, Philadelphia, for Chimenti.

Eric B. Henson, Deputy Dist. Atty., Robert B. Lawler, Chief/Appeals Div., Gaele M. Barthold, Chief/Prosecution Appeals, Harriet R. Brumberg, Philadelphia, Andrew S. Gordon, Sr. Deputy Atty. Gen., Thomas G. Saylor, Harrisburg, for Commonwealth.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen and Papadakos, JJ., join in the majority opinion and file separate concurring opinions.

Author: Mcdermott

[ 510 Pa. Page 149]

OPINION

In this case we are confronted with a unique factual situation. The defendant involved is Salvatore Chimenti. He was convicted by a jury of first degree murder after a trial presided over by the Honorable Lisa A. Richette of the Court of Common Pleas of Philadelphia. Subsequently, Mr. Chimenti dismissed his trial counsel, and hired new counsel to pursue his post-trial motions. These motions were denied

[ 510 Pa. Page 150]

    by Judge Richette. Prior to this denial however, Mr. Chimenti dismissed his post-trial counsel and retained his present appellate counsel.

Appellate counsel, acting pursuant to information given him by the defendant, as well as information garnered from his own investigation, contacted the Philadelphia District Attorney's Office with information concerning alleged irregularities in Mr. Chimenti's trial. These allegations included claims that Mr. Chimenti's trial counsel acted contrary to his best interests by suborning perjury from certain witnesses. The district attorney was intrigued by these allegations and was convinced that they had merit, so much so that Mr. Chimenti's counsel was able to strike a deal with the Commonwealth which would vacate the first degree murder conviction in return for Mr. Chimenti's cooperation in a police investigation and prosecution. The terms of the deal were incorporated into a petition, the import of which provided:

1. Chimenti has appealed from judgment of sentence for first degree murder.

2. The Commonwealth and Chimenti have agreed that his sentence should be vacated in exchange for his entry of a negotiated guilty plea to murder generally, certified to rise no higher than third degree.

3. To effectuate this agreement the case must be remanded to the Court of Common Pleas for special assignment to a judge who, after sentence has been vacated, will accept Chimenti's negotiated guilty plea.

This petition was presented to the Honorable Edmund B. Spaeth, Jr., then President Judge of the Superior Court, who, acting singularly and in camera, entered an order which granted the parties' petition. The order in question was entered on April 18, 1985,*fn1 and provided in relevant part that:

This case is remanded to the President Judge of the Court of Common Pleas of Philadelphia for special assignment to a judge who shall, on application of the parties vacate appellant's sentence and, in accordance with Pa.R.Crim.P. 319, accept appellant's negotiated guilty plea.

[ 510 Pa. Page 151]

Unstated in this order, but clearly intended, was the caveat that the "special assignment judge" be someone other than the trial judge. The trial judge who, sans record, had not only been effectively reversed but also divested of jurisdiction, brought this highly unusual order to the attention of this Court. Because of the grave consequences of Judge Spaeth's order as well as its extraordinary nature, we were compelled to review the proceedings. Consequently on June 20, 1985, acting sua sponte, we entered a per curiam order exercising plenary jurisdiction over the case. In our order we limited our review to the issue of "whether the Superior Court has the power to entertain a plea bargain after the entry of a judgment of sentence."*fn2

Prior to addressing the above issue we must briefly describe our jurisdiction as well as the form of the action involved. Article 5 Section 2 of the ...


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