concurring and dissenting.
I have some doubt as to the propriety of this Court considering an issue which involves the supervisory authority of the Supreme Court of Pennsylvania in enforcing standards of conduct of our district attorneys. Moreover, assuming this Court’s right to engage in this area, I cannot find that a conflicted district attorney is barred from making any decisions regarding a prosecution once a conflict has arisen. The holding of the majority, in establishing a per se rule constitutes an inappropriate extension of Commonwealth v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992). Accordingly, I must respectfully dissent.
I agree with the Majority that the evidence is sufficient in the instant case to sustain Ruth Lynn Breighner’s convictions for homicide by vehicle while under the influence, involuntary manslaughter, and related charges. I am unable to agree, however, with the Majority’s conclusion that the conflicted district attorney in this case was required to refer prosecution of Breighner to the Attorney General’s office, rather than asking the District Attorney from a neighboring county to *488prosecute. I therefore write separately to address both our right to consider this issue and the substantive issue itself.
The question of the distinct role of a criminal prosecutor and that prosecutor’s professional responsibility is one which our supreme court addressed in Commonwealth v. Eskridge, supra. The issue was not framed in terms of a constitutional analysis but rather in terms of the Rules of Professional Conduct. Id. at 389-90, 604 A.2d at 701. While then-justice (now Chief Justice) Flaherty alluded, without constitutional analysis, to the appellant’s “constitutional right to an impartial prosecutor”, 529 Pa. at 392, 604 A.2d at 702, there has been no express analysis implicating either the state or federal constitution in considering this matter of a district attorney’s conflict of interest and the impact of that conflict on criminal procedure. See and compare Commonwealth v. Dunlap, 474 Pa. 155, 377 A.2d 975 (1977) (Roberts, J., opinion in support of reversal) (analysis based upon Pennsylvania Supreme Court Code of Professional Responsibility EC 7-13 (1974) and A.B.A. Standards Relating to the Prosecution Function § 1.2 (Approved Draft, 1971)); Commonwealth v. Dunlap, 233 Pa.Super. 38, 335 A.2d 364 (1975) (both majority and dissenting opinions based upon analysis of A.B.A. Standards Relating to the Prosecution Function).
Apart from Justice Flaherty’s passing reference to a “constitutional right to an impartial prosecutor” in the Eskridge opinion, supra, I find no other reference to this issue as being one of constitutional dimension. The issue is one involving a matter of the professional conduct expected, or required, of a public prosecutor. I understand consideration of this issue to be the exclusive province of our supreme court.
In Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985), our supreme court expressly cautioned this Court against unwarranted intrusions upon that court’s exclusive right to supervise the conduct of all courts and officers of the judicial branch. 507 Pa. at 218, 489 A.2d at 1298. I do not believe that alleged violations of the Rules of Professional Conduct or the Standards Relating to the Prosecution Function and the Defense *489Function, or the impact any alleged violations of those standards might have on the administration of criminal justice can be reviewed by any tribunal other than those authorized by our supreme court. The issue we confront on this appeal is one within the administrative and supervisory functions of the Supreme Court of Pennsylvania over all of the attorneys in this Commonwealth. Id. However, since my colleagues have ventured upon this path, I feel obliged to set forth my views in dissent.
I turn now to the issue of the district attorney’s conflict of interest. The Majority would posit the question as whether a district attorney who cannot prosecute a matter due to a conflict can authorize a prosecutor from another county to act or whether the conflicted district attorney must refer the matter to the Attorney General. The appellant, on the other hand, frames her contention in the guise of a “constitutional right to a fair trial by an impartial prosecutor.” Brief for Appellant at 3. I would frame the question thusly: Whether the distinguished trial judge, the Honorable Oscar F. Spicer, P.J., committed an error of law or an abuse of discretion when, upon being confronted with a pretrial motion alleging conflict per se, he considered the limited averments of fact and argument presented, and denied the motion?
Our scope of review upon the denial of a pretrial motion to disqualify a prosecutor is to consider all of the uncontroverted averments of fact contained in the motion and to determine whether, on the facts averred, the moving party would have been entitled to relief as a matter of law or through the exercise of reasonable discretion by the trial court. In this case now before us, counsel for Ruth Lynn Breighner presented two separate motions to disqualify the District Attorney of Cumberland County. In the first motion, filed December 4, 1992, only two averments of fact are set forth. The motion averred that (1) the Adams County District Attorney (“Mr. Keefer”) had disqualified himself because his law firm was involved in civil litigation arising from the same circumstances, and (2) Mr. Keefer appointed the Cumberland County District Attorney (“Mr. Eakin”) to prosecute the case. The remaining *490two paragraphs in the motion set forth the movant’s conclusions that prosecution by Mr. Eakin would suffer from the same ethical problem that exists were the prosecution to be handled by an assistant district attorney and that the “proper method of avoiding the ethical issue” would be to appoint a special prosecutor from the Attorney General’s Office. The prayer for relief in the first motion was that the court disqualify Mr. Keefer and any of his assistants or appointees, and that the court “require that the appointment be made through the State Attorney General’s Office.”
In the second, Renewed Motion to Disqualify Prosecutor, filed March 5, 1993, counsel for the defendant, after stating that the court had previously, on December 23, 1992, denied the first petition to disqualify, averred as follows:
1. Since [December 23, 1992,] various matters have occurred which Defendant requests to be made a matter of record in this case which is believed to support the request to disqualify the prosecutor. All matters referred to below are matters that were disclosed by the Attorney for the Commonwealth.
2. The matters referred to above are as follows:
A. The Adams County District Attorney’s Office sent out trial notices.
B. Based on correspondence received from the prosecutor, it appears that the Adams County District Attorney’s Office has issued subpoenas for the prosecution and it appears that its facilities have been used for witness interviews.
At the hearing on the initial Motion to Disqualify, in response to an inquiry from the court as to whether counsel felt that Mr. Keefer was going to control the actions or performance of Mr. Eakin, counsel for the defendant stated:
MR. WILCOX: It’s not a matter of actual prejudice, Your Honor. Frankly, I don’t think Mr. Keefer was going to direct anything or to deliberately prejudice anything.
It is a matter of really I suppose of ethics in appearances. There is no requirement for showing of any actual prejudice *491according to the Supreme Court. We’re not questioning motivation of anyone involved in this situation.
* if: :{: %
THE COURT: Where did the Supreme Court say that this type of procedure is improper?
MR. WILCOX: Not on these facts, no. It was where the Assistant worked within the District Attorney’s Office. The District Attorney tried to by appointing his assistant. I understand this is a step beyond that, Your Honor.
N.T. December 23, 1992 at 4, 5. After further colloquy, the trial court asked Mr. Eakin if he had anything that he wished to say. Mr. Eakin then stated:
MR. EAKIN: ... I have received the file from the District Attorney’s Office. I have taken it to my office. I’ve not discussed the matter with Mr. Keefer, nor his Assistant or members of his staff.
The decisions that I have made to this point have been without consultation and I propose to continue stewardship of the case in that fashion. I have independently reviewed the witnesses.
Id. at 6.
At the hearing on the Renewed Motion to Disqualify, the only testimony was that of Mr. Eakin. In response to the averments concerning the issuance of subpoenas and the use of Mr. Keefer’s office staff, Mr. Eakin testified as follows:
MR. EAKIN: The procedure used, Your Honor, was that I advised Joan in the District Attorney’s Office which witnesses I wanted. They prepared, actually did the typing of subpoenas and passed them to the appropriate officer for service. Additionally, last week I understand there was a request from the officer for several subpoenas while I was out of town, which again was prepared by the secretary in there and given back to the officer for service. As far as consultation with Mr. Keefer or Miss Duval concerning which witnesses were to be subpoenaed, there were none. In fact, I have not discussed the case with either of them *492other than request for some procedural guidance on local custom.
N.T., March 8,1993, at 3-4.
On the first motion, the distinguished trial judge had before him nothing other than the factual averments that Mr. Keefer had disqualified himself and had appointed Mr. Eakin to try the case. In addition, Judge Spicer had the representation of defense counsel that he was not urging any actual prejudice as well as the statements of Mr. Eakin that he had not contacted Mr. Keefer during his handling of the prosecution. That motion was denied. On the Renewed Motion, Judge Spicer had before him the additional facts that the trial notices had been sent from Mr. Keefer’s office, that Mr. Keefer’s office had issued subpoenas for the prosecution, and that the Adams County D.A.’s facilities were being used for witness interviews. The two exhibits attached to the Renewed Motion were (1) a one-sentence notice on the letterhead of the Office of the District Attorney of Adams County, listing the Breighner case for trial on January 11, 1993, and (2) a letter on the letterhead of J. Michael Eakin, District Attorney, Cumberland County, addressed to Martha Duvall, an Adams County Assistant D.A, confirming that the case would be ready for trial the week of March 8, 1993, and requesting the re-issuance of subpoenas “for the same people as before.” A copy of the letter is shown as going to counsel for the defendant, Mr. Wilcox.
In addition, on the Renewed Motion, Judge Spicer had the uncontradicted testimony of Mr. Eakin as to precisely how he had been handling his request for subpoenas and office support. N.T. March 8, 1993, at 3-4. The defendant did not offer any other evidence to support her motion. On these facts, I am unable to conclude that Judge Spicer abused his discretion in denying both the original motion and the renewed motion.
Because there has been no abuse of discretion at the time the orders were entered by the trial court, this Court should be compelled to reject the contention concerning alleged error *493by the trial court and, on this issue, affirm the judgment of sentence.
It is unfortunate that Roy Keefer chose to disqualify himself from prosecuting this action rather than requesting that his law firm refuse to represent the decedent’s estate in the lucrative civil case associated with the accident. Commonwealth v. Eskridge, supra, (Cappy, J., concurring). Nevertheless, once the conflict of interest became apparent, Keefer appointed J. Michael Eakin to assume the prosecutor’s role. The Majority holds that the conflicted district attorney cannot make any decisions regarding a prosecution once a conflict has arisen, including the delegation of the prosecutor’s duties to a selected third party. In my view, this is an inappropriate extension of Commonwealth v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992).
In Eskridge, the conflicted District Attorney delegated the prosecution of the defendant to one of his assistants, an attorney from the same office. The Majority correctly notes that Eskridge holds that, when a conflict exists, prosecution by that District Attorney or any other attorney in his office is barred because of the supervision and control that is maintained by the conflicted District Attorney. Majority op. at 482-83. The court stated that, “when an actual conflict of interest affecting the prosecutor exists in the case[,] ... a defendant need not prove actual prejudice!)]” Eskridge, supra, at 392, 604 A.2d at 702. In my view, the establishment of supervision and control exercised by the conflicted district attorney is crucial.
Here, the prosecution was entrusted to an attorney not in the office down the hall, but from the next county. The file was sent to Cumberland County and was not worked upon by any attorney in the Adams County District Attorney’s Office. Although the Majority purports to find examples of the supervision and control of this prosecution by Adams County, these are actually examples only of secretarial support and the general inquiry into the local practice and customs of Adams County. Such assistance would also be extended to an attorney from the Attorney General’s Office. As for attorney *494Eakin’s discussions with the victim’s attorney in the civil action, any good prosecutor would undertake an investigation into the facts of his case. Once again, I fail to see how the Attorney General’s Office would have handled this aspect of the case differently, and I cannot conclude that this evinces supervision and control being exercised by Adams County.
The Majority emphasizes the fact that attorney (now Judge) Eakin was appointed assistant district attorney for Adams County before he prosecuted this case and concluded that he was thus technically under the supervision and control of the conflicted attorney. The Majority asserts that the Attorney General’s office, on the other hand, already had jurisdiction to prosecute pursuant to 71 P.S. § 732-205(a)(3), making such appointment unnecessary if the action were prosecuted by that office. The Commonwealth Attorney’s Act, however, does not independently confer jurisdiction upon the Attorney General, but instead merely provides that the Attorney General shall have the power to prosecute when requested to do so by a District Attorney who is experiencing a conflict. Accord Commonwealth v. Imler, 42 D. & C.3d 66 (1984) (holding that the Commonwealth Attorney’s Act awarding the Attorney General’s Office the power to prosecute in cases where the District Attorney experiences a conflict does not require an automatic intervention in every matter involving a conflict, but authorizes prosecution only at the district attorney’s request). Thus, the District Attorney must affirmatively confer the jurisdiction to prosecute whether the Attorney General or a District Attorney from a neighboring county is involved. I fail to see how a request to the Attorney General differs materially from a request to District Attorney Eakin when compliance is optional in both cases and the requested action is identical.
Moreover, under Section 205(d) of the Commonwealth Attorney’s Act, 71 P.S. § 732-205(d), the Attorney General may employ such special deputies as are necessary for the prosecution of a criminal action. As Mr. Eakin pointed out to Judge Spicer at the hearing on December 23, 1992, he could have been appointed by the Attorney General to handle the case as a special deputy attorney general and nothing would have *495changed as far as the manner in which the case would be handled. N.T., December 23, 1992 at 7. The Majority concedes that the récord does not support a finding that Breighner was prejudiced in any way by Eakin’s handling of the case. When questioned by the trial court, Eakin “repeatedly assured the court that he was exercising independent judgment and discretion.” Trial Court Opinion on Post-Verdict Motions, filed May 4, 1993, at 2. In that court’s estimation,
no reasonable member of the public would conclude that Mr. Eakin’s representation was blemished with ulterior motives. His conduct during trial was low-keyed and reasonable. He employed no histrionics, nor did he appeal to the emotion of the jury. His conduct carried absolutely no suggestion that he sought a conviction to benefit a private tort action.
Trial Court Opinion on Expanded Post-Verdict Motions, dated November 3,1994, at 4.
Because it has not been established that the conflicted District Attorney exercised any supervision and control over District Attorney Eakin, I conclude that any conflict ceased to exist once Eakin assumed the prosecutor’s role. I agree with the esteemed Chief Justice Nix who, in writing for the dissent in Eskridge, found that “it would be an elevation of form over substance” to remove the requirement of actual prejudice in cases of this type. Eskridge, supra, at 393, 604 A.2d at 703. Absent the assertion of actual prejudice, which cannot be proven here, a new trial is not warranted.
The policy behind the Eskridge decision is sound; a criminal defendant has the right to have his case reviewed by an administrator of justice who seeks to serve the public good, not by a zealous advocate who is seeking to convict at all costs to ensure a large civil verdict and a similarly large fee. Where, however, there is no evidence that the prosecutor was in any way influenced by improper considerations, either directly or through supervision and control by one suffering a conflict of interest, this policy is not advanced. Mr. Eakin, an independently elected District Attorney from a county with a population two-and-one-half times the size of the county which sought his services in a prosecution, could have been appoint*496ed either by the Adams County District Attorney under 16 P.S. § 1420 or by the Attorney General under 71 Pa.C.S. § 732-205(d). What public policy is being advanced by this Court’s interference with the Pennsylvania Supreme Court’s exclusive right to supervise the conduct of all officers of the judicial branch of government? The per se rule declared by the Majority is both beyond our power as an error-correcting court and misguided. Accordingly, I would hold that Breighner’s judgment of sentence must be upheld. Hence this dissent.