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August 21, 1997


Appeal from Order of the Superior Court, entered May 8, 1995, at No. 392 Harrisburg 1994, affirming the judgment of sentence of the Court of Common Pleas of Cumberland County, entered May 31, 1994, at No. 28 Criminal 1993. Before: Flaherty, Zappala, Cappy, Castille, Nigro and Newman, JJ. Former Chief Justice Nix did not participate in the consideration or decision of this case. Madame Justice Newman files a Dissenting Opinion in which Mr. Justice Castille joins.

The opinion of the court was delivered by: Zappala



Following trial by jury in Cumberland County, Thomas Lawson was found guilty of violating the Controlled Substance, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30), for having delivered 7.5 grams of cocaine to an undercover officer of the Harrisburg Police Department who was working with agents from the Bureau of Narcotics Investigation and Drug Control of the Attorney General's Office. The sole issue in this appeal concerns the authority under which the attorney who prosecuted the case acted.

At all relevant times, Shawn Wagner, the attorney representing the Commonwealth in this case, was employed as a deputy attorney general in the Harrisburg regional office of the Attorney General's Drug Strike Force, Legal Services Section. He had previously been employed as an assistant district attorney in Cumberland County. District Attorney J. Michael Eakin testified that when none of his assistant district attorneys was available to attend the preliminary hearing in this case, rather than seek postponement of the hearing he asked Wagner to take over the prosecution of the case. To this end, he submitted a Personnel Action Form to the Cumberland County Personnel Office appointing Wagner as a "Special Assistant District Attorney (Unpaid)" for this case, and filed on the Miscellaneous Docket of the common pleas court a document captioned "Appointment of Assistant District Attorney."

Eakin also testified that he consulted with Wagner's supervisor, Deputy Attorney General Eric Noonan, before formalizing the appointment, to verify that Wagner would be reporting to Eakin and not the Attorney General's Office with respect to prosecution of this case. Noonan testified similarly that it was understood that for purposes of this assignment Wagner answered to the District Attorney.

In his Omnibus Pretrial Motion, Lawson included a "Motion to Compel Removal of the Attorney General or Any Agent Thereof." The common pleas court denied this motion, finding

that Eakin appointed Wagner as a Special Assistant District Attorney for Cumberland County, and that Wagner did not prosecute this matter as an Attorney General. First, Eakin never relinquished his authority to prosecute this case. Second, Wagner was under the District Attorney's direction and supervision as Eakin made all important strategic and tactical decisions concerning the prosecution.

Opinion at 5. The court found the appointment to be "in accordance with our County Code," citing to 16 P.S. § 1420. It distinguished Commonwealth v. Khorey, 521 Pa. 1, 555 A.2d 100 (1989), where the District Attorney relinquished his power over the prosecution to the Attorney General pursuant to a request under the Commonwealth Attorneys Act, 71 P.S. § 732-205(3). In Khorey, said the court, the Commonwealth Attorneys Act was invoked and violated, because none of the conditions for a District Attorney to relinquish his authority was apparent on the record. In this case, the court held, the Act was neither invoked nor violated because Wagner did not prosecute the matter as an Attorney General.

Superior Court likewise observed that the District Attorney here

did not invoke the Commonwealth Attorneys Act, which delineates in what instances the attorney general may prosecute county criminal actions, but rather relied on the authority set forth in 16 Pa.C.S. [sic] § 1420, Assistant District Attorney; Number; Compensation, granting the district attorney the power to appoint assistant district attorneys or special assistant district attorneys to assist him in his duties.

442 Pa. Super. at 102-03, 658 A.2d at 804. Quoting our analysis of the Commonwealth Attorneys Act in the appeal of Commonwealth v. Trputec, 521 Pa. 1, 555 A.2d 100 (1989) which was consolidated for decision with Khorey, the court identified the following as "critical for Disposition of the issue in this case," 442 Pa. Super. at 102, 658 A.2d at 803:

The delegation of authority from a district attorney to a deputy district attorney is characterized by a different relationship than would be a "delegation" of authority to the attorney general. While a district attorney has control over deputy or assistant district attorneys because they are subordinates, such would not be the case with the attorney general, who would not be subject to the same supervision. In the ...

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