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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: KOLMAN, TIMOTHY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: TIMOTHY KOLMAN :
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:
:
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: No. 890 EDA 2017
Appeal from the Order Entered February 6, 2017
In the Court of Common Pleas of Montgomery County Criminal Division at
No(s): CP-46-MD-0000213-2017
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 09, 2018
Appellant, Timothy Kolman, appeals from the February 6, 2017 order
denying his petition for review of the disapproval of a private criminal
complaint. We affirm.
The record reveals that on March 11, 2016, Cheltenham police officers
responded to Appellant’s home after receiving a “911 hang up call.” Private
Criminal Complaint, 12/2/16, Attachment (Police Incident Report Form,
3/13/16, at 2.) When police arrived, Appellant’s wife, Rebecca Landes
(“Ms. Landes”), answered the door. Id. Ms. Landes told Officer Kevin
O’Donnell that she and Appellant had a domestic dispute and that she hit
Appellant in the face. Id. Officer O’Donnell arrested Ms. Landes for simple
assault. Id. at 1.
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Two days later, Appellant reported to police that he awoke on the day
after the incident with a headache. Private Criminal Complaint, 12/2/16,
Attachment (Police Incident Report Form, 3/13/16, at 2). Appellant
informed the police that he had gone to the emergency department at
Abington Hospital and stated that he was diagnosed with a mild concussion.
Id. Appellant provided Detective Mark Bates with a copy of the hospital
discharge record. Id. Detective Bates advised Appellant of Ms. Landes’s
hearing date and warned Appellant to have no contact with her. Id.
Detective Bates then asked if Appellant was pursuing a protection from
abuse order (“PFA”), and Appellant responded in the affirmative.1 Id.
On December 2, 2016, nearly nine months after the incident, Appellant
filed a private criminal complaint pursuant to Pa.R.Crim.P. 506(A) with the
Montgomery County District Attorney’s Office accusing Ms. Landes of simple
assault, 18 Pa.C.S. § 2701(a)(3), and harassment, 18 Pa.C.S. § 2709(a)(1).
Private Criminal Complaint, 12/2/16, at 1-2. In the private criminal
complaint, Appellant alleged that the previously filed charge of simple
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1 We are constrained to point out that the record at this trial court docket
number does not reflect the initial criminal complaint that the Cheltenham
police filed against Ms. Landes, and it does not memorialize at what point
that complaint was discontinued. However, it is undisputed among the
parties and the trial court that the police-filed criminal complaint against
Ms. Landes was withdrawn. As will be discussed, Assistant District Attorney
Caroline Goldstein stated at the hearing held on Appellant’s petition for
review that Appellant informed the police that he did not wish to pursue
charges against Ms. Landes, and the criminal complaint against her was
dismissed. N.T., 2/6/16, at 6-7.
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assault was dismissed without prejudice. Id. at 2. Attached to the private
criminal complaint was the aforementioned March 13, 2016 police incident
report form, which served as the factual basis for the private criminal
complaint.
On December 20, 2016, the Montgomery County District Attorney’s
Office sent Appellant a letter informing him that it disapproved the private
criminal complaint. Pursuant to Pa.R.Crim.P. 506(B)(2), on January 13,
2017, Appellant filed a petition for review of the district attorney’s
disapproval of the private criminal complaint. Following a hearing, the trial
court denied Appellant’s petition for review on February 6, 2017. Appellant
filed a timely appeal. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for this Court’s
consideration:
1. Was it error to uphold the District Attorney’s disapproval of
[Appellant’s] private criminal complaint for simple assault in
violation of [18] Pa.C.S.A. § 2701(a)(3) and harassment in
violation of [18] Pa.C.S.A. § 2709(a)(1), and to fail to find an
abuse of discretion, where the complaint included an attached
police incident report indicating that [Ms. Landes] admitted to a
police officer that she had struck [Appellant] in the face, yet the
District Attorney’s stated reasons for disapproval included
“Insufficient Corroboration”, “Insufficient Evidence”, “Insufficient
Probable Cause” and “Lacks Prosecutorial Merit”?
2. Was it error to uphold the District Attorney’s decision to the
extent that the disapproval fell within the “Interest of Justice”
category because no written explanation was provided for this
decision, as required by Pa.R.Crim.P. 506(B)(2), which provides
that “if the attorney for the Commonwealth ... disapproves the
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complaint, the attorney shall state the reasons on the complaint
form and return it to the affiant . . .”. [sic]?
3. Is the “interest of justice” basis cited in the instant case so
vague and amorphous that it constituted a violation of
Pa.R.Crim.P. 506, and should this Court find that District
Attorneys are not permitted to provide a vague “interest of
justice” explanation for denial of private criminal complaints as it
runs afoul of Rule 506 and is essentially no explanation of
“reasons” at all?
4. Was it error to allow the District Attorney’s office to add to,
testify to, and/or verbally supplement the written reasons for
disapproval at the February 6th, 2017 hearing, and to allow the
attorney arguing for the District Attorney’s office to add to the
alleged reasons the complaint was disapproved when those
reasons did not appear in writing on the complaint disapproval
form as required by Pa.R.Crim.P. 506, and should the Court rule
that Rule 506 limits the District Attorney to the written reasons
for disapproval set forth on the complaint form, such that any
attempt to add to or supplement those reasons verbally at a
later time is unlawful, violates Rule 506, and denies the
petitioner the notice to which he or she is entitled under Rule
506 and other applicable law?
Appellant’s Brief at 4-5 (emphasis in original).
Our standard of review is as follows:
Appellate examination of a trial court’s review of the District
Attorney’s decision to disapprove a private criminal complaint
implicates the following:
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.
* * *
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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.
In re Ullman, 995 A.2d 1207, 1213 (Pa. Super. 2010), appeal
denied, 610 Pa. 600, 20 A.3d 489 (2011) (quoting In re Private
Criminal Complaint of Wilson, 879 A.2d 199, 214-15 (Pa.
Super. 2005) (en banc) (internal citations omitted)).
In re Miles, 170 A.3d 530, 534-535 (Pa. Super. 2017).
In the instant case, the reasons provided by the district attorney’s
office for disapproval of the complaint are a hybrid of legal and policy
considerations. Thus, our standard of review is abuse of discretion. In re
Miles, 170 A.3d at 534-535.
In conducting our examination, we are mindful that the private
criminal complainant must show that the decision not to
prosecute was patently discriminatory, arbitrary or pretextual,
and therefore not in the public interest. We will not disturb the
trial court’s ruling unless there are no reasonable grounds for the
court’s decision, or the court relied on rules of law that were
palpably wrong or inapplicable.
Braman v. Corbett, 19 A.3d 1151, 1158 (Pa. Super. 2011) (internal
citations and quotation marks omitted).
In his brief on appeal, Appellant focusses on the absence of a
satisfactory explanation for the disapproval of his private criminal complaint.
As all of Appellant’s issues are interrelated, we address them concurrently.
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Appellant argues that because there was a police incident report and
charges filed, the trial court abused its discretion in denying his petition for
review. Appellant’s Brief at 10-11. We point out that even if we concluded
that the police incident report established a prima facie case, it did not
require approval of a private criminal complaint. In re Private Criminal
Complaint of Wilson, 879 A.2d 199, 211-212 (Pa. Super. 2005) (en banc).
Appellant chose not to pursue the criminal charges when they were filed
against Ms. Landes; therefore, no investigation was conducted, and the
matter was dropped. Appellant waited nearly nine months before deciding
to file the private criminal complaint.
Pursuit of criminal actions is not a matter of caprice; the
Commonwealth has a duty “to bring only those cases that are appropriate
for prosecution.” In re Wilson, 879 A.2d at 211. The Commonwealth cites
Hearn v. Myers, 699 A.2d 1265 (Pa. Super. 1997), as support for its policy
position regarding individuals who choose not to pursue charges initially but
then wish to do so after a considerable passage of time. Commonwealth’s
Brief at 8. In Hearn, we held, inter alia, that prosecutors are not beholden
to the whim of complainants. Therein, the appellant’s apartment was
burglarized, and he reported this to the police the following day. Hearn,
699 A.2d at 1266. Following an investigation, police identified the
perpetrators. Id. All three suspects confessed. Id. (emphasis added).
When the police contacted the appellant to inform him that the perpetrators
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had been caught and that charges would be filed, the appellant declined to
press charges because he had an intimate relationship with one of the
suspects. Id. The Commonwealth did not file charges, and the police
discontinued the investigation. Id. However, four months later, the
appellant filed a private criminal complaint, the district attorney disapproved
it, and the appellant appealed. Id. On appeal, this Court affirmed, stating
that:
individuals cannot dictate to the Commonwealth who and when
to prosecute. The district attorney is afforded the power to
prosecute on behalf of the Commonwealth, and to decide
whether and when to prosecute. The power to approve or
disapprove private criminal complaints is consistent with the
authority that the district attorney exercises in deciding to
initiate or discontinue prosecutions. To permit [the a]ppellant’s
criminal complaint would severely undermine the district
attorney’s prosecutorial discretion. It would allow individuals
who initially declined to press charges to return months
or years later and order the district attorney to prosecute.
It would also permit individuals to arbitrarily choose whom to
prosecute for a crime, instead of all parties responsible. A
system such as this would severely restrain the district
attorney’s ability to perform his official duties.
Id. at 1267 (internal citations omitted) (emphasis added).
Thus, despite the police incident report in the case at bar, Appellant’s
decision to drop the charges only to change his mind more than eight
months later, supports the Commonwealth’s policy-based position. The trial
court further explained:
This case arises out of an on-going domestic situation. Criminal
charges were filed and then withdrawn by [Appellant]. The
records were expunged. [Appellant] filed a PFA and pursued its
violation. [Nine] months after the incident, [Appellant] wanted to
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pursue the identical charges against [Ms. Landes]. Not a new
incident but the old one. The District Attorney’s office, in the
exercise of discretion, could very well not like to have its
prosecutional authority manipulated at the whim of a domestic
relations party against [his] spouse. Such could be considered to
be the use of criminal powers to enforce civil remedies, as the
District Attorney argued in court. [N.T., 2/6/17, at 14-15.] A
possible domestic relations strategy that the District Attorney
chose not to participate in again.
The District Attorney’s office clearly did not abuse its
discretion in denying prosecution of this claim even though there
was an admission. There were ample policy considerations to
warrant disapproval of this private criminal complaint.
Trial Court Opinion, 5/4/17, at 6. Ultimately, if Appellant believed that
Ms. Landes had violated a PFA, his remedy would be under the PFA and not
resurrection of criminal charges that he previously abandoned.
Inextricably intertwined throughout all of Appellant’s arguments is his
assertion that the district attorney’s decision was inadequately expressed in
the letter disapproving the complaint, and therefore, the decision was
patently arbitrary. Appellant’s Brief at 11, 13, and 15. We disagree.
As discussed above, Assistant District Attorney Caroline Goldstein
noted that Appellant informed the police that he did not want to press
charges against Ms. Landes. N.T., 2/6/16, at 6-7. This fact supported the
district attorney’s policy-based consideration on disapproving private
criminal complaints. Appellant objected to Attorney Goldstein’s statement
and argued that any and all reasons for disapproval of a private criminal
complaint must be in the “four corners” of the form disapproving it. Id. at
6-8. However, Appellant cites no authority for such a limitation.
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Conversely, the Commonwealth notes in its brief:
Rule 506(B)(2) states, in relevant part, that “if the
attorney for the Commonwealth ... disapproves of the complaint
the attorney shall state the reasons on the complaint form and
return it to the affiant.” Id. The complaint form in this case … is
the “complaint form” referred to in the rule and publically
accessible at website for the Pennsylvania Unified Judicial
System. It provides a short blank space for the Commonwealth
to state the reason for its denial of the private criminal
complaint. [Appellant’s] argument that Rule 506 requires some
in-depth discussion is inconsistent with standardized, statewide
practice. The denial form used in this case, moreover, provided
more information than could have been possible on the standard
complaint form. The form here was substantially similar to the
one set forth in Rule 507(C) for the disapproval of police
complaints.
Commonwealth’s Brief at 9-10.
We agree with the Commonwealth’s position. Indeed, the
Commonwealth provided Appellant a checklist of the reasons for disapproval
of the complaint. District Attorney’s Letter Disapproving Private Criminal
Complaint, 12/20/16. Appellant cites no case law requiring the disapproval
form to be an exhaustive list and limiting the reasons for disapproval to the
four corners of a form letter. Rather, we agree with the Commonwealth that
if an affiant does not agree with the disapproval of his private criminal
complaint, there is an established mechanism for clarification—the affiant
may petition for review in the court of common pleas pursuant to
Pa.R.Crim.P. 506(B)(2). N.T., 2/6/16, at 8; Commonwealth’s Brief at 8.
The record reveals that at the hearing, Assistant District Attorney
Goldstein explained in detail why the district attorney’s office disapproved
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Appellant’s criminal complaint. These reasons included that Appellant
withdrew the charges against Ms. Landes; he obtained a PFA against
Ms. Landes; he informed police he did not want to testify; and he felt safe.
N.T., 2/6/17, at 5-9. Assistant District Attorney Goldstein then asserted:
Now, ten, 11 months later, he’s coming back saying that
he wants us to proceed on those charges, but right now we have
a credibility issue.
If he didn’t want to go in the first place, we can’t just start
arbitrarily charging people on the whims of victims who are
telling us not to charge.
N.T., 2/6/17, at 9.
Assistant District Attorney Goldstein continued:
And then further to give you some more information, after
the charge was withdrawn, Ms. Landes moved for expungement,
so most of the records are now gone.
And the expungement was granted because it was a
withdrawn case, and [Ms. Landes] was legally entitled to that.
N.T., 2/6/17, at 11-12.
After review of the record, we find that the Commonwealth provided
ample reasons for its decision. Accordingly, we conclude that Appellant’s
arguments are meritless. Therefore, for the reasons set forth above,
Appellant is entitled to no relief. We affirm the trial court’s order denying
Appellant’s petition for review.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/18
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