Most criminal cases end the way you’d expect — with a plea, a verdict, or a dismissal at the preliminary hearing. But sometimes a prosecutor decides, after charges are filed and held for court, that the case shouldn’t go forward. The mechanism for that is a nolle prosequi — a Latin term meaning, roughly, “we will no longer prosecute.” It’s a voluntary withdrawal of charges that, under Pennsylvania law, requires a judge’s approval before it takes effect.
That requirement of judicial approval is where things get interesting. What standard does the trial court apply? How much deference does the prosecutor get? And what happens when the trial court tells the Commonwealth, in effect, no, you have to try this case?
On April 30, 2026, the Pennsylvania Supreme Court answered the first two of those questions in Commonwealth v. Harrison, No. 84 MAP 2024. The third one — what happens next when a trial court forces an unwilling prosecutor to proceed — got teed up nicely by Justice Dougherty’s concurring and dissenting opinion, but the majority left it for another day.
The Facts: A Taser, a Glock, and a Mistake
The facts of Harrison are unusual. In May 2018, Ryan Smith — who, his mother later explained, had been released from the hospital the day before and “seemed delusional” — walked into a Santander Bank branch in York and demanded to withdraw money from an account he didn’t actually have. Bank employees called 911. Officer Stuart Harrison of the now-disbanded Southwestern Regional Police Department responded.
What followed was a struggle. Harrison drew his Taser — twice — but neither deployment incapacitated Smith. A second officer arrived. Together, they wrestled Smith to the ground, deployed another Taser, and handcuffed him. They escorted him toward the patrol car. Smith wouldn’t bend down to get into the back seat.
At that point, Harrison announced he was going to “drive-stun” Smith in the thigh — meaning, press the Taser directly against him and pull the trigger. But Harrison didn’t grab his Taser. He grabbed his Glock 17. He pressed the muzzle against Smith’s thigh and pulled the trigger.
Smith spent seventeen days in the hospital. Harrison’s reaction, captured in Smith’s words and his own: “Dude why’d you shoot me?” — followed by Harrison’s response to Smith’s mother, “I didn’t mean to.”
The investigating troopers noted what should have made the mistake hard to make. The Taser was yellow, weighed 227 grams, and was holstered on Harrison’s left side. The Glock was black, weighed 905 grams, and was holstered on his right. Harrison was a certified firearms and Taser instructor. He had completed training in both weapons within the previous six years.
The Commonwealth charged him with one count of negligent simple assault — a second-degree misdemeanor under 18 Pa.C.S. § 2701(a)(2), which makes it a crime to “negligently cause[] bodily injury to another with a deadly weapon.” The magistrate held the charges for trial.
What the Commonwealth Did Next
The Commonwealth never tried the case. Instead, the York County District Attorney’s Office filed a motion to nolle prosequi the charges in May 2020. That first motion argued that dismissal was “in the interests of justice” because Harrison was no longer a police officer (his department had been disbanded, partly because of this incident), he had agreed to address two cadet classes about how to avoid mistakes like his, and pursuing a conviction would amount to “punishment for punishment’s sake.”
The trial court — President Judge Maria Musti Cook of York County — held a hearing. Smith, the actual victim, testified that he had not been told about the motion and learned of it from the newspaper. His mother testified that, while she had been consulted, she opposed the disposition. The District Attorney apologized for the lack of communication with Smith but defended the motion on policy grounds.
Judge Cook denied the motion. She found that the Commonwealth had effectively conceded Harrison’s criminal negligence and was trying to act as both fact-finder and sentencing judge — choosing the consequence it preferred, without any actual finding of guilt on the record.
When the trial court refused to certify an interlocutory appeal, the Commonwealth tried again. In September 2021, it filed a second motion to nolle prosequi — this one on entirely different grounds. The new theory: a witness named Harry Harrington, who had observed the shooting, had died in March 2019, and without his “neutral” eyewitness testimony, the Commonwealth claimed it could no longer meet its burden of proof beyond a reasonable doubt.
Judge Cook called that motion “quite lame.” She pointed out that Harrington had died before the first nolle prosequi motion was filed, and yet his death had never been mentioned then. She also noted that another bank employee, Amanda Hendrickson-Cozio, was an independent witness who had seen the shooting and testified at the preliminary hearing. The Commonwealth had video of what happened inside the bank. There were other witnesses. The trial court denied the second motion as well.
Step Back: How We Got Reinhart
To understand what the Supreme Court did with this case, you need to understand the road that led to the Reinhart standard the Court applied, and that road runs through several centuries of Anglo-American practice.
At common law in England, the power to enter a nolle prosequi belonged exclusively to the Crown’s Attorney General. Courts had no role beyond rubber-stamping the Crown’s request. Chief Justice Todd’s opinion in Harrison preserves a wonderful 18th-century anecdote in which one Lacy approached Chief Justice Holt claiming to be a prophet sent by the Lord God to obtain a nolle prosequi for an imprisoned friend. Chief Justice Holt’s reply: “Thou art a false prophet, and a lying knave. If the Lord God had sent thee, it would have been to the Attorney General, for He knows that it belongeth not to the Chief Justice to grant a nolle prosequi.”
American courts started out the same way — with complete deference to the prosecutor. But over time, jurisdictions across the country grew uncomfortable with that level of unchecked discretion. Pennsylvania has required judicial approval of prosecutorial dismissals since 1850, when the office of district attorney was first created by statute. That requirement now lives in two places: 42 Pa.C.S. § 8932 (a district attorney “shall not enter a nolle prosequi … without having obtained the approval of the court”) and Pa.R.Crim.P. 585(A) (“the court may, in open court, order a nolle prosequi … notwithstanding the objection of any person”).
Neither the statute nor the rule tells the court how to evaluate the request. The Pennsylvania Supreme Court filled that gap in 1976 with Commonwealth v. Reinhart, 353 A.2d 848. Reinhart held that a trial court considering a Commonwealth motion to nolle prosequi must ask two questions: first, is the reason given by the Commonwealth “valid and reasonable”; and second, does the defendant have a valid speedy trial claim? That second question wasn’t in play in Harrison. The whole case turned on the first one.
The Superior Court’s Detour Through De Novo Review
The Superior Court affirmed Judge Cook’s denial of the second nolle prosequi motion, but it got there by a strange route. Rather than apply Reinhart, the panel held that a trial court reviewing a nolle prosequi motion based on evidentiary insufficiency should apply de novo review, drawing on the Superior Court’s earlier decision in Commonwealth v. Stivala, 645 A.2d 257 (Pa. Super. 1994).
The panel never cited Reinhart. It also seemed to apply de novo review on appeal, which conflicts with the long-settled abuse-of-discretion standard from Commonwealth v. DiPasquale, 246 A.2d 430 (Pa. 1968).
The Commonwealth’s argument to the Pennsylvania Supreme Court was simple: this is just Reinhart. The Superior Court adopted the wrong test, and the trial court — having applied a de novo sufficiency analysis — applied the wrong one too.
What the Supreme Court Held
Chief Justice Todd, writing for a four-justice majority, did three things in Harrison.
First, the Court reaffirmed Reinhart. The standard for evaluating a nolle prosequi motion remains whether the Commonwealth’s stated reason is “valid and reasonable.” The trial court considers the legal claims and resolves disputed facts using a preponderance-of-the-evidence standard. The court is not “bound to accept” the Commonwealth’s legal conclusion — it considers the question in the first instance and reaches its own judgment, just as it would on any other motion. On review, an appellate court applies abuse-of-discretion to the ultimate ruling, accepts factual findings supported by the record, and reviews pure legal questions de novo.
Second, the Court declined to import In re Ajaj into this context. Ajaj, decided in 2023, held that a trial court reviewing a prosecutor’s disapproval of a private criminal complaint can overturn that disapproval only on a showing of bad faith, fraud, or unconstitutionality. That’s a famously narrow standard. The Commonwealth had argued — at least implicitly — that Ajaj‘s deference should carry over here.
The majority said no. Ajaj involved a prosecutor’s initial decision not to bring charges at all, before the judiciary was meaningfully involved. Once the Commonwealth has already filed charges and obtained a magistrate’s finding of probable cause, the analysis changes. As Chief Justice Todd put it, the public has a “compelling interest” in seeing those charges resolved through a process that “justly and fairly determines the question of the accused’s innocence or guilt.” The judicial role isn’t an intrusion at that point; it’s part of the system the prosecutor has already invoked.
Third, the Court applied Reinhart to Harrison’s case and affirmed. Even though the Superior Court had used the wrong standard, the trial court had applied the right one. Judge Cook examined the Commonwealth’s stated reason — Harrington’s death and the asserted impossibility of meeting the burden of proof — and concluded it was neither valid nor reasonable. There were other witnesses. There was video. There was an independent eyewitness, Hendrickson-Cozio, with no connection to either side. The trial court’s findings were supported by the record, and its legal conclusion was sound. Affirmed.
The Dougherty Concurrence and Dissent
Justice Dougherty, joined by Justice Mundy, agreed with the majority that the Superior Court botched the standard of review. But he dissented from the majority’s decision to apply Reinhart itself, and from what he saw as the majority’s sub silentio endorsement of that standard.
His point is well-taken. The Commonwealth never asked the Court to reconsider Reinhart — it asked the Court to apply it. By going on to evaluate the trial court’s reasoning under Reinhart, the majority effectively reaffirmed a standard nobody had asked it to revisit. And, Justice Dougherty argued, Reinhart‘s analytical foundations are thin. The 1976 decision cited a single case in support of its “valid and reasonable” test — Commonwealth v. Leaming — and Leaming says nothing of the sort. The standard, in other words, was effectively conjured rather than derived.
Justice Dougherty’s opinion also surveys how federal courts handle the analogous question under Federal Rule of Criminal Procedure 48(a), which requires “leave of court” for the government to dismiss an indictment. The federal courts overwhelmingly apply a much more deferential standard — the prosecutor’s request must be granted unless dismissal is “clearly contrary to manifest public interest” or motivated by bad faith. The Eighth Circuit puts it bluntly: leave can be withheld “only in the rarest of cases.” Several state high courts have adopted similar standards for their own leave-of-court rules.
Perhaps, Reinhart deserves serious reconsideration in a future case where the issue is squarely presented. The federal practice — and the practice of states like Minnesota — recognizes something the Harrison majority sidesteps: there’s a real separation-of-powers question lurking in any judicial decision that forces a prosecutor to proceed with a case the prosecutor doesn’t believe in. Justice Dougherty noted this concern in his Ajaj concurrence, and he flags it again here.
The questions he raises in the closing pages of his opinion are also the right ones, and they expose what’s awkward about the majority’s holding:
- What happens to this case now? The York County District Attorney’s Office has formally taken the position that the evidence is insufficient. Is it conflicted out? If so, can it ask for supersession by the Attorney General — who is, in fact, the same Dave Sunday who, as York County DA, originally moved to nolle pros the case?
- Can the prosecution simply let the speedy-trial clock run?
- If forced to trial, how does an ethical prosecutor present a case it doesn’t believe in? Does it tell the jury that the evidence is insufficient? Cross-examine its own witnesses? Make argument?
The majority gives no answers. That isn’t a criticism of the result — the result follows from the standard the Court applied. But the standard creates downstream problems that Reinhart never confronted.
What Harrison Means in Practice
For practitioners, Harrison is most useful for what it confirms and for what it leaves alone.
It confirms that the Reinhart “valid and reasonable” standard is alive and well. A trial court hearing a Commonwealth motion to nolle prosequi has real authority — not a rubber stamp — to evaluate the legal sufficiency of the prosecution’s stated reason and to make factual findings supporting or rejecting that reason. The court does not have to defer to the prosecutor’s assessment of the strength of the evidence. It applies its own legal judgment, supported by record findings under a preponderance standard.
It also clarifies that Ajaj‘s bad-faith-or-fraud standard does not migrate from the private-complaint context to the nolle prosequi context. Those are different procedural moments with different separation-of-powers implications, and the Court was right to keep them apart — at least for now.
What Harrison leaves alone is whether Reinhart is the right standard at all. The majority expressly declined to address that question because the Commonwealth didn’t raise it. Justice Dougherty’s separate writing gives a useful roadmap for the brief that eventually does raise it — and that brief, when it comes, will have substantial federal and out-of-state authority to draw on.
For defense lawyers, the practical lesson is narrower. If your client is the defendant in a case where the Commonwealth wants to walk away — as Harrison was here, since he supported the dismissal — the trial court’s role under Reinhart is a real obstacle. The court can, and sometimes will, reject a dismissal the prosecution and defense both want. That’s worth remembering at the negotiation stage. A nolle prosequi is not self-executing, and a trial judge who is paying attention to the victim’s rights or to the public interest may not approve what the parties have agreed to.
For everyone else, Harrison is a quiet reminder of something easy to forget: in Pennsylvania, the decision to drop criminal charges does not belong solely to the District Attorney. Once the case is in court, it belongs partly to the court, and to the public the court serves.