dissenting.
For the reasons set forth in Commonwealth v. Klobichir, 486 Pa. 241, 405 A.2d 881 (1979) (Roberts, J., Opinion in Support of Reversal), Commonwealth v. Newmiller, 487 Pa. 410, 409 A.2d 834 (1979) (Roberts, J., concurring and dissenting), and Commonwealth v. Tabb, 491 Pa. 372, 421 A.2d 183 (1980) (Roberts, J., dissenting), I must lodge my continuing objection to the view, now expressed by the Opinion of Mr. Justice Kauffman announcing the Judgment of the Court, that despite the prohibition against double jeopardy an accused who has vindicated the well-established right to a valid guilty plea may be subjected to trial on a charge of criminal homicide greater than the charge to which the accused initially pled guilty and which the court accepted only after a review of all of the Commonwealth’s evidence. Additionally, unlike Mr. Justice Kauffman, I see no reason for this Court to resort to its extraordinary jurisdiction to decide the due process and equal protection questions raised. Consideration of these questions is not appropriate on a Bolden appeal, see, e. g., Commonwealth v. Santiago, 489 Pa. 527, 414 A.2d 1016 (1980), and must await the development of a full record.
Central to Mr. Justice Kauffman’s rejection of appellant’s double jeopardy right is the mistaken belief that, in accepting a guilty plea, a Pennsylvania trial judge does not pass upon any higher degree of homicide. Regrettably, this mistaken belief reflects unfamiliarity with the realities of Pennsylvania practice.
*136“Under Pennsylvania law, before a trial court accepts any guilty plea, it must determine that there exists a factual basis to support the degree of guilt charged. Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974); Commonwealth v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973); Comment to Pa.R.Crim.P. 319(a). See also ABA Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 1.6 (Approved Draft, 1968); accord, ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 4.2(b). Moreover, in non-capital murder cases, when, as here, ‘a defendant enters a plea of guilty to a charge of murder generally, the judge before whom the plea was entered shall alone determine the degree of guilt.’ Pa.R. Crim.P. 319(c).”
Commonwealth v. Tabb, supra, 491 Pa. at 383, 421 A.2d at 189. Surely it is ironic that Mr. Justice Kauffman, although holding that jeopardy did not attach upon the court’s acceptance of the plea, so often states that the court, in accepting the plea, “found” appellant guilty.
The opinion of Mr. Justice Kauffman also erroneously analogizes the negotiation of a plea agreement to a contract. However, it is contrary to our criminal justice system to permit the Commonwealth to contract with a defendant. See ABA Standards Relating to the Prosecution Function and the Defense Function § 4.3 (Approved Draft, 1971) (unprofessional conduct for prosecutor to make promise or commitment concerning sentence); ABA Standards Relating to Pleas of Guilty § 1.5 (Approved Draft, 1968) (court must advise defendant personally that recommendations of prosecutor are not binding on court). Unlike a civil litigant, the prosecutor is not an ordinary party to a controversy. He is a “servant of the law,” with a “twofold aim . . . that guilt should not escape or innocence suffer.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); accord, Gannett Co. v. DePasquale, 443 U.S. 368, 384 n.12, 99 S.Ct. 2898, 2908 n.12, 61 L.Ed.2d 608 (1979). The *137prosecution, as society’s representative, has an interest in assuring that a plea of guilty is voluntarily and knowingly entered. Where a plea of guilty is unlawfully induced, society has no interest in insisting that the defendant abide by his plea, or face potential harassment in the form of greater charges, for vindication of his constitutional right to a fair adjudication of guilt or innocence. In withdrawing an invalid guilty plea the defendant does not break a contract; he merely vindicates rights which both the court and the Commonwealth are obliged to protect.
Manifestly, the Commonwealth’s acknowledgment and the trial court’s determination in 1977 that justice would be served by a verdict and sentence on a charge of murder of the second degree should have no less force nearly four years later, in 1981. Therefore, the order of the court of common pleas should be reversed and the record remanded for trial on charges no higher than murder of the second degree.