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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: EMIL SFEDU : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: EMIL SFEDU :
:
:
:
:
: No. 3847 EDA 2016
Appeal from the Order Dated October 20, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-MD-0004757-2016
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 17, 2017
Emil Sfedu, Appellant, appeals from the order entered in the Court of
Common Pleas of Philadelphia County denying his petition for review of his
private criminal complaint. We affirm.
The lower court sets forth the underlying facts and procedural history:
Petitioner [hereinafter “Appellant”] filed a Private Criminal
Complaint (“PCC”) with the Philadelphia District Attorney’s Office
against [his brother] George Sfedu for, inter alia, Theft by
Deception. The basis for Appellant’s allegation is that George
Sfedu received unclaimed property [not included within their
father’s estate] in the amounts of $3,184.48 and $548.91, half of
which was allegedly required to be distributed to Appellant.
Further, Appellant alleged that George Sfedu violated the
following statutes: 20 Pa.C.S.A. § 3101(e)(1), (2) and (3)—
Payments to family and funeral directors—Unclaimed Property; 18
Pa.C.S.A. § 3922, Theft by Deception; 18 Pa.C.S.A § 3921, Theft
by Unlawful Taking; 18 Pa.C.S.A. § 3927, Theft by Failure to Make
Required Disposition of Funds Received; and 18 Pa.C.S.A. § 3924,
Theft by Property Lost, Mislaid or Delivered by Mistake.
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* Former Justice specially assigned to the Superior Court.
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In support of his PCC, Appellant alleged that he was the executor
of his parents’ estate and distributed the estate proceeds pursuant
to their will, which bequeathed an equitable division between
Appellant and George Sfedu. Appellant claimed that,
unbeknownst to him, George Sfedu contacted the Pennsylvania
Treasury’s Bureau of Unclaimed Property and submitted a claim
on behalf of Appellant’s parents. Appellant asserted that George
Sfedu executed a document, a copy of which was attached to his
petition, indicating that Appellant was also entitled to claim the
property. However, Appellant asserts that George Sfedu never
made this distribution to him. Appellant then filed the PCC at issue
in this appeal.
The Philadelphia District Attorney’s Office declined to adopt the
PCC and prosecute George Sfedu. Appellant, through the District
Attorney’s Office’s internal procedures, requested a review/appeal
of the PCC, which was again declined. Appellant appealed this
decision, which was reviewed and denied by the Municipal Court,
on August 15, 2016. Appellant then appealed that decision to [the
Court of Common Pleas.]
Trial Court Opinion, filed February 13, 2017, at 1-2.
By Order of October 20, 2016, the lower court denied Appellant’s
petition, determining that Appellant failed to establish as a matter of law that
George Sfedu acted intentionally, knowingly, or recklessly with respect to the
property. This timely appeal followed.
Appellant presents the following question for our review:
DID THE COMMONWEALTH ABUSE ITS DISCRETION BY
DISALLOWING EMIL SFEDU’S PRIVATE CRIMINAL COMPLAINT
WITHOUT ARTICULATING ANY VALID POLICY REASONS FOR
DOING SO?
Appellant’s brief at 5.
Our standard of review for a trial court’s denial of review of the
Commonwealth’s approval or disapproval of a private criminal complaint is
well-settled:
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Consistent with established Pennsylvania law in general, we now
hold that when the district attorney disapproves a private criminal
complaint solely on the basis of legal conclusions, the trial court
undertakes de novo review of the matter. Thereafter, the
appellate court will review the trial court's decision for an error of
law. As with all questions of law, the appellate standard of review
is de novo and the appellate scope of review is plenary.
When the district attorney disapproves a private criminal
complaint on wholly policy considerations, or on a hybrid of legal
and policy considerations, the trial court's standard of review of
the district attorney's decision is abuse of discretion. This
deferential standard recognizes the limitations on judicial power
to interfere with the district attorney's discretion in these kinds of
decisions.
The private criminal complainant has the burden to prove the
district attorney abused his discretion, and that burden is a heavy
one…. [T]he private criminal complainant must demonstrate the
district attorney's decision amounted to bad faith, fraud or
unconstitutionality. The complainant must do more than merely
assert the district attorney's decision is flawed in these regards.
The complainant must show the facts of the case lead only to the
conclusion that the district attorney's decision was patently
discriminatory, arbitrary or pretextual, and therefore not in the
public interest. In the absence of such evidence, the trial court
cannot presume to supervise the district attorney's exercise of
prosecutorial discretion, and should leave the district attorney's
decision undisturbed.
Thereafter, the appellate court will review the trial court's decision
for an abuse of discretion, in keeping with settled principles of
appellate review of discretionary matters. See Commonwealth
v. Hunt, 858 A.2d 1234 (Pa.Super. 2004) (en banc) (citing
Commonwealth v. Jones, 826 A.2d 900, 907 (Pa.Super. 2003)
(en banc)) (stating: “An abuse of discretion is not merely an error
of judgment, but if in reaching a conclusion the law is overridden
or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused”).
See also Commonwealth v. Ruby, 838 A.2d 786 (Pa.Super.
2003).
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The district attorney’s decision not to prosecute a private criminal
complaint for reasons including policy matters carries a
presumption of good faith and soundness. See [Commonwealth
v.] McGinley, [673 A.2d 343 (1996) (en banc) (plurality)]. The
complainant must create a record that demonstrates the contrary.
Thus, the appropriate scope of review in policy-declination cases
is limited to whether the trial court misapprehended or
misinterpreted the district attorney's decision and/or, without
legitimate basis in the record, substituted its own judgment for
that of the district attorney. We will not disturb the trial court's
decision unless the record contains no reasonable grounds for the
court's decision, or the court relied on rules of law that were
palpably wrong or inapplicable. Otherwise, the trial court's
decision must stand, even if the appellate court would be inclined
to decide the case differently.
In re Wilson, 879 A.2d 199, 214-215 (Pa.Super. 2005) (en banc).
At the October 6, 2016 hearing on Appellant’s motion, both Appellant
and the trial court agreed that if Appellant’s case implicated any of the above-
cited offenses alleged it was 18 Pa.C.S.A. § 3927, Theft By Failure to Make
Required Disposition of Funds Received. N.T. 10/6/16 at 9-10. Section 3927
provides as follows:
§ 3927. Theft by failure to make required disposition of
funds received
(a) Offfense defined.—A person who obtains property upon
agreement, or subject to a known legal obligation, to make
specified payments or other disposition, whether from such
property or its proceeds or from his own property to be reserved
in equivalent amount, is guilty of theft if he intentionally deals with
the property obtained as his own and fails to make the required
payment or disposition. The foregoing applies notwithstanding
that it may be impossible to identify particular property as
belonging to the victim at the time of the failure of the actor to
make the required payment or disposition.
18 Pa.C.S.A. 3927.
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The trial court determined that even if the district attorney disapproved
Appellant’s complaint for strictly legal reasons,1 the allegations against George
Sfedu failed to establish a prima facie case of a Section 3927 offense, as was
Appellant’s burden from the outset. This was so, opined the court, where
nowhere in either the complaint or at the hearing did Appellant address how
George Sfedu intentionally, knowingly, or recklessly failed to make the
required payments or disposition of the property.
Indeed, the court observed, George Sfedu acknowledged on the claim
form that Appellant was entitled to a share of the unclaimed property, and
Appellant never alleged that he asked for the money or that George Sfedu
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1 We note, additionally, that both parties and the court acknowledged, at the
hearing, a policy component to the district attorney’s explanation for
disapproving Appellant’s private criminal complaint. Specifically, the district
attorney’s office advised the court of its position that a family matter involving
an allegedly improper distribution of a decedent’s property was more a civil
law concern better left to the orphan’s court, where Appellant could
appropriately seek redress. N.T. 10/6/16 at 6-7, 13-14, 15.
Given the familial nature of the dispute and the availability of a civil remedy,
the district attorney’s position reflected the exercise of sound discretion, even
if the alleged facts could have made out a prima facie case under Section
3927. See In re Wilson, 879 A.2d at 211-212 (recognizing district attorney
not obligated to bring private criminal complaint simply because facts recited
in complaint make out prima facie case, and may exercise sound discretion to
refrain from prosecution in good faith belief that prosecution would not serve
best interests of state). The trial court, therefore, could have properly applied
a deferential abuse of discretion standard of review to the district attorney’s
decision. In turn, our appellate review of the trial court’s decision would also
be for abuse of discretion, which we would find to be absent for the foregoing
reasons.
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refused the request. “[A]ppellant’s only contention is that he did not receive
the money. There are many possible reasons that this occurred, and Appellant
has not, even at a prima facie level, established the criminal intent required
to meet the elements in the statute.” Trial Court Opinion, at 4-5.
We discern no error of law with the trial court’s assessment of the
sufficiency of Appellant’s case under Section 3927, supported as it was by the
court’s thorough inquiry undertaken at the October 6, 2016, hearing on
Appellant’s motion. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2017
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