Dissenting Statement by
OLSZEWSKI, Judge:The facts of this case present a substantially similar situation to that presented in Commonwealth v. Stipetich, 423 Pa.Super. 427, 621 A.2d 606 (1993). The issue is whether the police may enter into a non-prosecution agreement which is enforceable against the district attorney. It is our position that the General Assembly has provided absolute discretionary power to the district attorney in matters involving prosecution of citizens accused of criminal conduct in this Commonwealth. 16 Pa.S.A. § 1402(a); Stipetich at -, 621 A.2d at 613 (Olszewski, J., dissenting). An investigating officer may not, consistent with the statute, enter into a non-prosecution agreement with a person facing potential prosecution. Insofar as Judge Cavanaugh’s dissent stands for this proposition, I join him wholeheartedly.
*470I write separately to emphasize my position regarding the remedy a court should provide a defendant whose constitutional rights. In Stipetich, I proposed that the trial court may not dismiss charges against a defendant when the police enter into a non-prosecution agreement without the knowledge and consent of the district attorney. Rather, at 'the appropriate juncture, the defendant should file a motion to suppress any evidence procured in violation of his or her constitutional rights. This remedy will put the defendant in the same position that he would have been had no improper conduct occurred, while at the same time protect the district attorney’s statutory powers. Stipetich at -, 621 A.2d at 615.
Under the facts of this case, I agree that defendant might not be entitled to a remedy since the fruits of the improper conduct will be inadmissible at trial. Such a finding, however, should be more appropriately reserved for a hearing after defendant makes an appropriate motion to suppress. In short, I wish to emphasize that a decision to reverse the trial court’s dismissal of the charges should be due to the improper abrogation of the district attorney’s statutory duties by the police. Whether the evidence procured as a result of the improper conduct “prejudiced” defendant by violating his or her constitutional rights is a matter independent from the determination of whether the prosecutor should be entitled to pursue the case.
Judge Cavanaugh also "writes that an appropriate remedy in a case such as this one might be “suppression of evidence wrongfully collected, prosecutorial restraint, or accepted avenues of judicial nullification.” Dissenting opinion of Judge Cavanaugh, p. 469. In support of a remedy of “judicial nullification,” the dissent cites Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991), wherein our Supreme Court held that a trial judge may “in the interest of justice” rectify prejudicial trial court errors. Specifically, the Court in Powell upheld the trial court’s sua sponte grant of a new trial to a defendant who was prejudiced by the trial court’s denial of a motion for a continuance. Id. at 294, 590 A.2d at 1248. Trial *471court remedies molded “in the interest of justice” are subject to review under an abuse of discretion standard. Id.
Unlike Powell, however, cases where a police officer enters into a non-prosecution agreement without consulting the district attorney do not involve trial court errors which the trial court may correct on its own motion. Rather, the harm done, usurpation of the district attorney’s statutory duties, occurs well before any trial ever occurs. A judicial remedy which attempts to cure the- harm by dismissing charges against a defendant does not remedy the harm at all—it exacerbates it. We have "written:
The function of the courts of any jurisdiction is to interpret an already existing legislative enactment, not engraft upon it any novel conditions or mandates when its clear language does not lend itself to any such requirement similar to that suggested by appellant here. To do so would be a judicial usurpation of a legislative prerogative.
Commonwealth v. Knowles, 373 Pa.Super. 203, 207, 540 A.2d 938, 940 (1988), alloc. denied, 520 Pa. 614, 554 A.2d 507 (1988).
In conclusion, I am compelled to express my opinion that a non-prosecution agreement reached without the knowledge and consent of the district attorney is void from the start. Judicial recognition, at any level, of a remedy which frustrates the powers of the district attorney is an abuse of discretion. The harm suffered by defendant may well be remedied, but not by a dismissal of charges.
Subject to the observations above, I join Judge Cavanaugh in dissent.
ROWLEY, President Judge, joins in this dissenting statement.