Commonwealth v. Stipetich , 423 Pa. Super. 427 ( 1993 )

JOHNSON, Judge.

In these cases, we are asked to determine whether the trial court abused its discretion in dismissing the criminal complaints brought against George and Heidi Stipetich by the Allegheny County Police Department, where a non-prosecution agreement had been entered between the Stipetiches and the City of Pittsburgh Police Department and full performance had been rendered by the Stipetiches. As we conclude that the trial court did not abuse its discretion, we affirm.

On November 13, 1990, officers of the City of Pittsburgh Police Department obtained a search warrant for the Stipetich home. Accompanied by officers from the Upper Saint Clair Police Department, they searched the Stipetich home pursuant to that warrant. In that search, the Pittsburgh Police, under the supervision of Sergeant Thomas, recovered: various items of drug paraphernalia containing cocaine residue; several bottles of prescription analgesics; a small amount of marijuana; and one dexedrine tablet. These items were retained and analyzed by the Pittsburgh Police, who were in sole control of the investigation.

The Stipetiches, at that time, were represented by Attorney Charles Scarlata. Attorney Scarlata contacted Sergeant Thomas “to ascertain exactly what they [Pittsburgh Police] thought was going on and what [he] might prepare for as a lawyer trying to represent clients.” N.T., October 8, 1991, at 43. After several discussions, on April 13, 1991, Attorney Scarlata and Sergeant Thomas reached an agreement about the disposition of the Stipetiches’ case. The agreement was that if George Stipetich would answer all questions concerning the source of the controlled substances and paraphernalia seized at his residence, no charges would be filed. N.T., October 8, 1991, at 44. George Stipetich immediately fulfilled his part of the agreement by answering all questions asked of him by the Pittsburgh Police Officers.

On September 9, 1991, Allegheny County Police filed criminal complaints against the Stipetiches, which charged possession of cocaine residue and pharmaceuticals based on the items seized during the search of the Stipetiches home by the Pittsburgh Police some ten months earlier. Successor defense counsel filed a motion to dismiss the charges against the Stipetiches based on the April 13, 1991, agreement between the Stipetiches and Sergeant Thomas, upon which full performance was rendered by the Stipetiches prior to any charges being filed. Following a hearing on the Motion to Dismiss, at which Attorney Scarlata was the sole witness on that issue, the trial court, the Honorable .Robert E. Dauer, granted the motion and dismissed the charges against the Stipetiches. It is from this order that the Commonwealth appeals.

In our review of a dismissal of an indictment by the trial court, we are limited to upholding the trial court’s conclusions absent an abuse of discretion. Commonwealth v. Gemelli, 326 Pa.Super. 388, 474 A.2d 294 (1984). We, as an appellate court, are bound by the trial court’s findings of fact, if supported by the record. Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985).

The sole issue presented for our review is whether the trial court abused its discretion in binding the Commonwealth to the non-prosecution agreement entered by the Stipetiches and the City of Pittsburgh Police Department, the enforcement of which, after full performance by the Stipetiches, resulted in the dismissal of all charges against the Stipetiches. Despite the arguments of the Commonwealth to the contrary, we deem unnecessary, to the disposition of this case, the exploration of whether “the police”, as an entity, have authority to enter into non-prosecution agreements. We conclude that the record supports the trial court’s finding that a binding agreement had been entered by the Stipetiches and the Pittsburgh Police, and therefore, the trial court did not abuse its discretion in enforcing it.

This court has discussed the effect of non-prosecution agreements between a potential defendant and a prosecuting attorney. Commonwealth v. Ginn, 402 Pa.Super. 405, 587 A.2d 314 (1991). There, we held that a non-prosecution agreement was analogous to a plea bargain agreement, and must be strictly enforced. Id. In that case, we implicitly applied contract law standards to analyze the mutual conditional promises made by both the potential defendants and the prosecutor and held that the integrity of the judicial system demanded that the Commonwealth live up to its obligations under the agreement. Id. at 410, 587 A.2d at 316.

While this case is not factually identical to Ginn, the same principles apply. Here, a formal agreement not to prosecute was entered, by the police officer in charge of the case and the attorney representing the Stipetiches. The Stipetiches, in reliance on this agreement, divulged all information that the police requested, and during this process gave up the valued constitutional guarantee against self-incrimination. While the police, rather than the prosecutor, entered into this agreement with the Stipetiches, both the Stipetiches and their attorney were induced to believe that Sergeant Thomas had full negotiating authority over the case and they detrimentally relied on that belief and the bargain that had been struck.

The United States Supreme Court discussed the constitutional implications of plea-bargain agreements in a seminal case that has been widely cited as authority for upholding non-prosecution agreements as well. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In that case, the defendant, charged with two felony offenses, agreed to plead guilty to a lessor included offense in exchange for the prosecutor’s promise not to make a sentencing recommendation. At the time of sentencing, a different prosecutor was assigned to the case and recommended the maximum sentence. The defendant, thereafter, unsuccessfully attempted to withdraw his guilty plea. On appeal to the United States Supreme Court, the conviction was vacated and remanded, due to the breach of the plea agreement. The Court stated, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. The Court, however, left the determination of the proper remedy to impose for breach of the plea agreement within the discretion of the trial court. Id.

Relying on Santobello, and other federal circuit court cases regarding the obligations of the government under plea bargain agreements, the Ninth Circuit discussed non-prosecution agreements in United States v. Carrillo, 709 F.2d 35 (1983). In that case, Carrillo was arrested for the possession of heroin. Following his arrest, agents of the Drug Enforcement Administration (DEA) offered not to prosecute Carrillo if he cooperated in the government’s investigation of drug traffickers. Carrillo agreed to cooperate in the investigation but refused to testify due to fears for the safety of himself and his family. Carrillo fully cooperated in the drug investigation but when called to testify, he refused. Notwithstanding the non-prosecution agreement, Carrillo was thereafter indicted, alleg-r edly based on his breach of that agreement. The district court dismissed the indictment, after analyzing the agreement between the DEA agents and Carrillo and determining that a promise to testify was not part of the bargain. The Ninth Circuit affirmed the dismissal of the indictment, stating that non-prosecution agreements must, be analyzed in terms of contract law standards. Id. at 36. The court, after determining that full performance had occurred on the part of Carrillo, then held that “under settled notions of fundamental fairness the government [through the actions of the DEA agents] was bound to uphold its end of the bargain.” Id. at 37.

In an earlier case, the First Circuit addressed a similar non-prosecution agreement. United States v. Rodman, 519 F.2d 1058 (1975). In that case, an agent of the Securities and Exchange Commission (SEC) had obtained substantial self-incriminating statements from Rodman on the basis that the SEC would strongly recommend to the United States Attorney that Rodman not be prosecuted. Thereafter, Rodman was indicted and sought to have the indictment dismissed based on his non-prosecution agreement with the SEC agent. The district court found that a non-prosecution agreement existed between Rodman and the SEC and that despite full performance by Rodman, the SEC had failed to uphold its part of the bargain. The First Circuit, in affirming the dismissal of the indictment, held that Rodman had been induced to make statements based on his reliance on the non-prosecution agreement, and that in light of the clear breach of the agreement by the SEC, dismissal of the indictment was not an abuse of discretion by the district court. Id. at 1059-1060.

We find the reasoning in the above cases to be persuasive. There, the courts did not explore the authority of the agent of the Government making the non-prosecution agreement with the potential defendant but ostensibly accepted the apparent authority of law enforcement agents to bind those involved in a subsequent prosecution. See Restatement (Second) of Agency § 8. In Santobello, Carrillo and Rodman, under principles of equity and fundamental fairness, these courts held that once the existence of an agreement is established, the remedy for the breach of a non-prosecution agreement rests within the sound discretion of the trial court.

Turning to decisions by state courts, in two cases, the Supreme Court of Colorado, sitting en banc, also enforced agreements between police officers and potential defendants, where the defendants detrimentally relied on the agreements to divulge potentially incriminating information in exchange for promises by police that the information would not be used in subsequent prosecutions. While in these cases, the police did not enter into non-prosecution agreements with the defendants, we find the reasoning of the Colorado Supreme Court to be useful in our determination of the issue before us.

In People v. Fisher, 657 P.2d 922 (Colo.1983), Fisher was arrested for and confessed to committing several residential burglaries. The detective in charge of the case asked Fisher if he would consent to a videotape interview about his burglary techniques, to be used for educating future law enforcement agents. Fisher consented to the videotaping on the condition that it could not be used against him in a subsequent prosecution. After the disposition of the charges pending against him by a plea-bargain which resulted in his serving no time in prison, Fisher was subsequently arrested on charges of residential burglary. After pleading not guilty to the charges and upon discovering that the prosecution intended to introduce the videotaped interview at trial, Fisher moved to suppress the videotape. The trial court granted the motion to suppress, stating, “we undermine the whole principles of [the] integrity of our society if we think that the state is not bound by its agreements.” Id. at 925. The Supreme Court of Colorado upheld the trial court’s suppression order, relying on Santobello and subsequent federal cases. The Colorado court required specific performance on Fisher’s agreement with the police, “because the officer’s promise implicated other constitutional rights of the defendant, because the defendant took detrimental action in reasonable reliance upon the promises, and because no other remedy short of enforcement of the promise would secure fundamental fairness to the defendant----” Id. at 925.

We find the reasoning in Fisher as well as in a subsequent decision by the same court, People v. Manning, 672 P.2d 499 (Colo.1983), to be persuasive. In Manning, prosecutors appealed a suppression order by the trial court, which was based on an agreement between Manning and a police officer that certain statements would not be used against her. The Supreme Court of Colorado upheld the order to suppress, despite the arguments of the prosecutor that the police officer was not authorized to make the agreement not to use Manning’s statements against her. The court, there, held that the police officer, under a theory of apparent authority, was no less an agent of the government than the prosecuting attorney. Id. at 505-506. The court went on to conclude that the only viable area of inquiry was whether an agreement actually existed, the terms of the agreement, and, whether there was detrimental reliance by Manning. There the court determined that there was indeed an agreement between the police officer and Manning, upon which Manning detrimentally relied, and that the intended scope of the agreement was that the information which Manning revealed could not be used against her in a subsequent prosecution.

In the present case, the trial court, using a rationale similar to that employed by the Colorado Supreme Court, determined that a negotiated agreement existed, “based on the good faith efforts of both the defendants and the Pittsburgh Police.” Based on this conclusion, and the fact that the Stipetiches had fully performed their obligations under the agreement prior to the filing of any charges against them, the trial court enforced the agreement.

The Commonwealth, however, directs us to another state court decision, People v. Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988), as the case which should guide us in the non-enforcement of the agreement between the parties in the instant case. In that case, the defendant, in an agreement with a DEA agent, returned money offered for the purchase of cocaine to the Michigan State Police in exchange for a promise of non-prosecution. Thereafter, a state prosecution was initiated. Gallego asserted the he was entitled to specific performance of the non-prosecution agreement. The Michigan Supreme Court, looked to Santobello for guidance in this area, and determined that under its holding specific performance was not required. The Michigan court then held that specific performance of the agreement was not required for the “misconduct” on the part of the police in entering into the agreement, but rather, suppression of the buy money and the written agreement would serve to cure the constitutional violations suffered by Gallego due to his detrimental reliance upon his written agreement with the police. Id. at 456-457, 424 N.W.2d at 475.

The Gallego court correctly determined that Santobello did not require specific performance of the plea agreement but the court failed to recognize that the United States Supreme Court did hold that the remedy for the breach of that agreement was best left within the discretion of the trial court. In Gallego, the Michigan Supreme Court usurped the power of the trial court to impose a remedy for the breach of the non-prosecution agreement, and substituted its judgment for that of the trial court by imposing its own remedy. We decline to follow this example.

We find the reasoning presented in Justice Cavanaugh’s dissent in Gallego to be more persuasive. The Justice stated, in part:

In the present case, the police may not have had the authority to propose the agreement in question ... What is important is not whether the police had the authority to make the promise, but whether the promise was in fact made. Here, the written, signed agreement proposed by the police is evidence of this promise. In reliance on this promise and the advice of counsel, defendant performed his part of the agreement.

The precept that people should keep their promises should apply to the state no less than to individuals. When a promise is made by the state to an individual involved in the criminal justice system, the standards of substantive due process hold the state to a high duty of care in keeping its promise. Although the constitution may not specifically require specific performance in this case, the principle of fundamental fairness does. It is fundamentally unfair for the state to create and then destroy a defendant’s expectations while reaping the benefit of its bargain.

Gallego at 461-462, 424 N.W.2d at 477-478 (Cavanaugh, J., dissenting) (citations omitted).

It is after full consideration of the reasoning presented in all of the above cited cases, that we approach this issue based on the facts before us. The crucial question for our inquiry is whether the trial court’s finding that a binding agreement was reached between the City of Pittsburgh Police and the Stipetiches is supported by the record. If the trial court’s determination that an agreement existed is supported by the record, the remedy for the breach of that agreement remains solely within its discretion. Santobello at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

The record reveals that Attorney Scarlata was the sole witness on the issue of whether a non-prosecution agreement existed. We conclude that the undisputed testimony offered before the trial court supports the trial court’s finding that an agreement existed between the Stipetiches and the Pittsburgh Police and that the Stipetiches reasonably relied upon that agreement in answering all police questions, foregoing the Constitutional guarantees against self-incrimination.

Attorney Scarlata, upon cross-examination by the district attorney, testified:

Q: As part of your representation of George Stipetich, did you go to other agencies that could have possible jurisdiction to file in order to negotiate with them?

A: There was no need to do that. I was talking to the people who had control of the physical evidence and from my view control of the case.

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Q: Was it not your understanding of the general case law in this area that in order to provide an agreement, it must be entered into with the prosecutor, such as the U.S. Attorney or the district attorney?

A: No, that’s not my understanding. My understanding is, and it is something that enables the system to function, is that if a policeman makes a representation to me, I can rely upon that representation.

N.T., October 8, 1991, at 52.

The trial court concluded that, as full performance had been rendered by the Stipetiches prior to the filing of any charges against them, the Commonwealth must be held to the bargain made in good faith between the Stipetiches and the City of Pittsburgh Police. As the only unfulfilled promise in the agreement remained the promise not to prosecute, under accepted notions of equity and fundamental fairness, enforcement of that agreement necessarily entailed granting the Stipetiches’ Motion to Dismiss the indictment.

We conclude that based on the specific facts of this case, the trial court did not abuse its discretion in enforcing the non-prosecution agreement between the Stipetiches and the City of Pittsburgh Police.

Order of October 8, 1991, Dismissing the Criminal Complaints is Affirmed.

DEL SOLE, J., joins and files a concurring statement. FORD ELLIOTT, J., concurs in the result and files a concurring statement. HUDOCK, J., concurs in the result. OLSZEWSKI, J., files a dissenting opinion in which ROWLEY, President Judge, joins. POPOVICH, J., files a dissenting opinion in which ROWLEY, President Judge, and CAVANAUGH, J., join.