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Commonwealth v. Bryan2/24/2003
1 This is an appeal from an order which dismissed with prejudice a charge of driving while under the influence of alcohol filed against Appellee. This dismissal was made after the trial court sua sponte inquired about the delay in this matter. The court issued a rule to show cause why the charges should not be dismissed and the Commonwealth responded with reference to a non-prosecution agreement between Appellee and the arresting police officer. The court thereafter issued its order of dismissal. The Commonwealth on appeal argues that Appellee was not "entitled to the dismissal" where the agreement was executed without knowledge or consent of the district attorney, where Appellee did not comply with the terms of the agreement and where the trial court acted sua sponte. Appellant's Brief at 4. We reverse because the trial court erred in acting sua sponte and because the remedy it fashioned was not appropriate under the facts of this case.
2 On October 1, 1999, the police chief of the Avis Borough Police Department, Paul Polen, stopped Appellee's vehicle after observing erratic driving. When Appellee failed field sobriety tests he was arrested and transported to a local hospital where he refused blood testing. While at the hospital, Appellee spoke to Chief Polen and suggested a "deal" in which Appellee would make controlled drug purchases at his place of employment and introduce undercover people into his workplace, in exchange for which Officer Polen would refrain from filing charges. Chief Polen drove Appellee to his home from the hospital, contemplated the offer and advised Appellee to "sleep on it" and to call the station the following Monday if he still desired to make this "deal." Appellee later contacted Chief Polen who introduced Appellee to Gordon Mincer, a narcotics agent with the Pennsylvania State Attorney General's Office. An agreement was reached whereby the Chief would not file driving under the influence charges if Appellee, working with Agent Mincer, successfully made or arranged for the controlled buy of certain controlled substances. This agreement was reached without the knowledge or consent of the Clinton County District Attorney's office.
3 When Appellee failed to cooperate as agreed, a criminal complaint was filed against him on March 20, 2000, charging him with driving while under the influence of alcohol. A plea agreement was reached and on August 14, 2000, Appellee appeared in court to enter his plea. During these proceedings the court, apparently with regard to the delay in the matter, remarked "Where has this case been?" N.T., 8/14/00, at 3. The district attorney was permitted to approach the bench and a discussion was held off the record. Thereafter the court issued a rule upon the Commonwealth to show cause why the charges against the defendant should not be dismissed as a "result of the inordinate delay in filing of the criminal charges in this matter." Id. at 4.
4 At the hearing which followed, Chief Polen testified regarding the deal he made with Appellee in which Appellee agreed to make controlled buy drug purchases. The chief testified that had Appellee fulfilled this obligation charges would not have been filed, but Appellee never followed through and the charges were eventually brought. He further testified that this agreement was never consented to or discussed with or approved by the Clinton County District Attorney. The Commonwealth argued to the court that Appellee was not prejudiced despite the delay in this matter. The court ultimately issued its ruling dismissing the prosecution. It offered the following rationale for its ruling:
While technically no motion has been filed by Defendant under Rule 315 [now Rule 587], we
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