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COMMONWEALTH PENNSYLVANIA v. EDWARD KHOREY (03/09/89)

decided*fn*: March 9, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
EDWARD KHOREY, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. FRANK TRPUTEC, APPELLEE



Appeal by Allowance from the Order of November 1, 1985 at No. 255 Pittsburgh, 1983, of the Superior Court of Pennsylvania affirming in part and vacating in part the judgment of sentence entered on January 24, 1983, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 8201051A. Nix, C.j., and Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., did not participate in the consideration or decision of the case at No. 97 W.d. Appeal Docket, 1987. McDermott and Zappala, JJ., concur in the result.

Author: Stout

[ 521 Pa. Page 4]

OPINION OF THE COURT

The issues presented in these appeals, which have been consolidated, concern the limitations on the attorney general to initiate a criminal prosecution under section 205 of the Commonwealth Attorneys Act ("Attorneys Act") 71 Pa.Stat. ยง 732-101 et seq. (Purdon Supp. 1988). Disposition of these appeals requires an elucidation of the principles first set forth in Commonwealth v. Carsia, 512 Pa. 509, 517 A.2d 956 (1986).

[ 521 Pa. Page 5]

I.

A.

Appellant Edward Khorey appeals from that part of the order of the Superior Court which affirmed a judgment of sentence entered against him by the Court of Common Pleas of Allegheny County.

Khorey's convictions stem from the following facts. In 1981, the West Miflin Township police arrested one JoAnn Walters for retail theft. Ms. Walters retained attorney Bruce Carsia to defend her. With Ms. Walters' consent, Carsia contacted Khorey, a police officer from Munhall Township, which is contiguous to West Miflin Township, in an attempt to "fix" the case. Khorey agreed to the scheme and contacted the arresting officer in an effort to further it. The arresting officer, in turn, contacted the Bureau of Criminal Investigations of the Attorney General's Office. As a result of the Bureau's investigation, Khorey, Carsia, and Walters were arrested and prosecuted.

The attorney general charged Khorey with bribery,*fn1 criminal solicitation,*fn2 criminal conspiracy,*fn3 and obstructing justice.*fn4 Prior to trial Khorey filed a motion to quash the information based upon the Attorneys Act which Khorey contended deprived the attorney general of the power to prosecute this matter. The trial court considered the motion on the morning of the trial. That same day, however, before any ruling on the motion but after the hearing on the motion, Khorey entered into a plea agreement whereby he would plead guilty to all counts and withdraw his motion in return for the Commonwealth's recommending probation. The trial court accepted the plea, and imposed a sentence of probation on the bribery count while suspending sentence on the remaining counts.

[ 521 Pa. Page 6]

As it happened, Carsia, who had been charged in identical fashion and who had filed an identical motion, did not plea bargain, and the trial court subsequently dismissed the charges against him.*fn5 Khorey then filed a timely motion to withdraw his guilty plea. A sharply divided Superior Court, sitting en banc, affirmed the trial court's denial of the motion. Commonwealth v. Khorey, 347 Pa. Super. 171, 500 A.2d 462 (1985). Khorey thereupon petitioned this Court for leave to appeal. That petition was granted on November 17, 1987. Commonwealth v. Khorey, 517 Pa. 589, 534 A.2d 769 (1987). We now affirm.

B.

In the other case before the Court, Commonwealth v. Trputec, the Commonwealth appeals from the Superior Court order vacating a judgment of sentence entered against Frank Trputec after a jury convicted him of criminal solicitation*fn6 and criminal conspiracy.*fn7 Trputec was implicated in criminal activity by one Ron Arnold, who was cooperating with the attorney general pursuant to a plea agreement for an unrelated crime. As part of that agreement, Arnold was to aid in the prosecution of crimes of which he had knowledge.

Arnold arranged a meeting with Trputec to discuss an alleged arson at F & H Equipment, a truck repair shop owned by Trputec. To elicit information from Trputec, Arnold mentioned that Bill Hilton, with whom Trputec had set the fire, might talk to the police, who were reopening their investigation of the blaze. After some discussion, Trputec raised the possibility of having Hilton "erased." Later conversations led to an agreement to have Hilton killed for $10,000.

[ 521 Pa. Page 7]

After an information was prepared and signed by the district attorney of Lawrence County, William Panella, the attorney general's office requested that Panella allow it to handle the prosecution because it already was handling charges pending against Trputec in other counties. When Panella consented, he was asked to write a letter requesting that the attorney general handle the prosecution.*fn8 Except for preparing and filing the information and the pretrial motions to consolidate, the attorney general's office conducted the prosecution of Trputec. The trial court, in a well-considered opinion, denied Trputec's motion challenging the authority of the attorney general to conduct the prosecution under the Attorneys Act. The Superior Court reversed and held that the circumstances surrounding the request that the attorney general handle the prosecution did not satisfy the requirements of the Attorneys Act. Commonwealth v. Trputec, 363 Pa. Super. 239, 525 A.2d 808 (1987). The Commonwealth sought review of the Superior Court order. This Court granted leave to appeal on February 17, 1988. Commonwealth v. Trputec, 517 Pa. 616, 538 A.2d 498 (1988). We now affirm.

II.

A.

Khorey attacks his sentence on two grounds. First, Khorey claims that his plea was not a knowing and voluntary relinquishment of his rights. Khorey argues that he

[ 521 Pa. Page 8]

    was not advised that if the trial court had granted his petition challenging the authority of the attorney general, the charges would have been dismissed. Appellant's Brief at 13. Khorey argues that a lack of knowledge concerning this critical aspect of his case constitutes manifest injustice requiring that he be allowed to withdraw from the plea agreement.

To withdraw a guilty plea, the petitioner must show manifest injustice. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). "To be [c]onstitutionally valid, a plea of guilty must have been voluntarily, knowingly and intelligently made, i.e. with an understanding of the nature of the charges against him, his right to a jury trial and an awareness of the consequences of his plea." Commonwealth v. Enty, 442 Pa. 39, 40, 271 A.2d 926, 927 (1971) (emphasis added).

Here, Khorey is unable to show that his plea was not entered knowingly and intelligently. The colloquy in which Khorey entered the guilty plea makes clear that Khorey understood that he was waiving the right to challenge the authority of the attorney general to conduct the prosecution. The colloquy went as follows:

THE COURT: I would like to discuss on the record as to the petition that was filed on behalf of Mr. Khorey . . . that being [the] jurisdictional question that was raised this morning.

[Lawrence Claus, Deputy Attorney General]: Well, as I understand, that petition has now been withdrawn, Your Honor.

THE COURT: I would like him to state on the record that he knows the nature of that petition.

MR. CLAUS: Mr. Khorey, you mean, . . .

THE COURT: Yes.

[Vincent Murovich, counsel for Khorey]: Mr. Khorey, you understand the petition presented here this morning on your behalf on the question of jurisdiction of the Attorney General to investigate, prosecute in the case?

[ 521 Pa. Page 9]

MR. KHOREY: Yes, sir.

MR. MUROVICH: And are you aware, also, that there has been no decision by the ...


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