Commonwealth v. Khorey

*178SPAETH, President Judge,

concurring:

I join in so much of the majority’s opinion as discusses the issue of the indefinitely suspended sentences. I write separately on the issue of whether appellant should have been allowed to withdraw his guilty plea, for the majority does not appear to me to have met appellant’s argument. Appellant does not, as the majority implies, see At 175-177, assert “manifest injustice” in its equitable sense; he knows, and does not deny, that he settled for the bird in hand — the favorable sentence — and gave up on the two in the bush— complete discharge. His argument is that he suffered “manifest injustice” in an absolute, or purely legal, sense: the trial court, he says, lacked subject-matter jurisdiction to accept his plea, and, therefore, could not impose any sentence on him.1

For a trial court to have subject matter jurisdiction to entertain a plea, not only must the crime have been committed within the county in which the court sits, but the defendant must be properly before the court, having been confronted by the Commonwealth “with a formal and specific accusation of the crimes charged.” Commonwealth v. Little, 455 Pa. 163, 168, 314 A.2d 270, 273 (1974). “Since a question of subject-matter jurisdiction goes to the very power of the court to act, it may be raised at any time during the proceedings, ...” Commonwealth v. Ziegler, 251 Pa.Super. 147, 150, 380 A.2d 420, 422 (1977), and “[t]he lack of subject matter jurisdiction cannot be waived, even by a guilty plea, ...” Commonwealth v. Mangum, 231 Pa.Super. 162, 164, 332 A.2d 467, 468 (1974). See, e.g., Commonwealth v. Borris, 280 Pa.Super. 369, 421 A.2d 767 (1980) (trial court lacked jurisdiction to accept guilty plea *179where petition for allocatur on pre-trial motions was pending).

Appellant’s argument raises just such a challenge to the trial court’s authority to accept his plea. The argument, as I have indicated, proceeds as follows: the Attorney General was without authority under the Commonwealth Attorneys Act, 71 Pa.C.S. § 732-101 et seq., to investigate, arrest, or prosecute him; the prosecution was therefore a nullity; the trial court therefore had no basis upon which to accept his plea and to sentence him. See Brief for Appellant at 14-15. This argument both depends upon and derives its force from our decision in Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237 (1985), where we held that the information was without effect because the Attorney General did indeed lack the authority to prosecute the case.

In considering appellant’s argument, I have found it instructive to contrast the respective analyses of this court and the Supreme Court in Commonwealth v. Diaz, 235 Pa.Super. 352, 340 A.2d 559 (1975), rev’d 477 Pa. 122, 383 A.2d 852 (1978) (Diaz I and Diaz II).

In that case, the defendant, at the preliminary hearing, entered a guilty plea to attempted rape, and a simultaneous waiver of an indictment. The trial court concluded, sua sponte, that it had been without jurisdiction to accept the plea, for there had been no indictment or waiver prior to acceptance of the plea. A new complaint was therefore sworn out; appellant was rearrested; and the trial court vacated the sentence that had been entered on the plea. Appellant moved to dismiss the new complaint, and, after his motion was denied, similarly moved to dismiss the indictment based upon the complaint. On the trial court’s certification, 42 Pa.C.S. § 702(b), we permitted appellant to take an interlocutory appeal, and affirmed. See Diaz I, 235 Pa.Superior Ct. at 353-54, 340 A.2d at 560; Diaz II, 477 Pa. at 124, 383 A.2d at 853-54. Appellant’s sole argument, we noted, was that the trial court having accepted his guilty plea, it was precluded on double jeopardy principles from proceeding with a second prosecution for the same offense. *180This argument turned upon whether the trial court had jurisdiction, in the absence of a valid indictment, to accept appellant’s plea; if it did not, the first prosecution was a nullity, and the second prosecution was not precluded on double jeopardy principles. See Diaz I, 235 Pa.Superior Ct. at 354; 340 A.2d at 560. We held that the court did not have jurisdiction. “Not only is a grand jury indictment a protection for the individual charged, it is also an embodiment of the charge upon which a trial court may ground its deliberation. The indictment thus becomes a foundation for the court’s subject-matter jurisdiction.” Diaz I, 235 Pa.Superior Ct. at 355; 340 A.2d at 560-61. “[A] bill of indictment or an indictment is a necessary concommitant to subject-matter jurisdiction before a sentence may be .imposed for offenses in court cases.” Diaz I, 235 Pa.Superior Ct. at 356, 340 A.2d at 561. Because there had been no indictment prior to the court’s acceptance of the defendant’s guilty plea, “the acceptance of guilty plea and sentencing were a nullity, the court lacking jurisdiction.” Id.

Were we to follow our analysis in Diaz I here, we should be obliged to conclude, as appellant argues, that the prosecution was a nullity, the Attorney General lacking authority to bring it, and conferred no authority upon the trial court to accept appellant’s plea. We may not follow our analysis, however, for in Diaz II the Supreme Court rejected it.

In Diaz II the Supreme Court agreed with us that the issue turned upon whether the trial court had jurisdiction to accept the plea. It held, however, that the lack of an indictment did not divest the trial court of subject-matter jurisdiction. The purpose of the indictment, Justice MAN-DERINO said, was to give a defendant formal and specific notice of the charges against him. He reasoned that “[f]or-mal notice of the charges is required so that the defendant knows exactly what the accusation is and so that the record will establish exactly what the defendant is guilty of in the event of a conviction.” “Even a defective indictment,” he concluded, could serve the purpose of giving formal notice, and so long as that purpose was served, the trial court had *181authority to proceed with the case, despite a defective indictment, or no indictment at all. Diaz II, 477 Pa. at 126, 383 A.2d at 854. See also Commonwealth v. Little, supra 455 Pa. at 168, 314 A.2d at 272-73 (absence of criminal complaint does not deprive trial court of subject-matter jurisdiction, if indictment gives defendant notice of crimes of which he is accused.); compare Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979) (SPAETH, J., concurring) (where indictment failed to charge appellant with offense, therefore depriving her of notice of specific charge against her, trial court lacked jurisdiction to entertain her plea.)

Here, there is no question that appellant knew, with all the required specificity, the nature of the charge against him: the specific facts underlying the charge were placed on record in his presence and that of counsel. See Reproduced Record at 38-46. That being so, we are compelled to find that the Attorney General’s lack of authority to bring the prosecution did not affect the trial court’s authority to accept appellant’s plea.

MONTEMURO, J., joins in this opinion.

. The majority’s statement that "the Commonwealth Attorney’s Act, supra, did not limit in any way the jurisdiction of the several courts of common pleas to hear and decide criminal cases[]”, At 176, is, of course, true, but it does not address the issue raised by appellant, which is whether the lack of a valid indictment, due to the Attorney General’s lack of statutory authority to prosecute, divested the court of subject matter jurisdiction.