J-S68034-18
2018 PA Super 326
IN RE: APPEAL OF DISTRICT : IN THE SUPERIOR COURT OF
ATTORNEY'S DENIAL OF PRIVATE : PENNSYLVANIA
CRIMINAL COMPLAINT OF CHARYN :
HAMELLY AGAINST DEFENDANT :
CHERRY LYNNE POTEET :
:
:
APPEAL OF: CHARYN HAMELLY :
: No. 631 WDA 2018
:
:
Appeal from the Order Entered March 29, 2018
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-MD-0000012-2018
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED NOVEMBER 30, 2018
Appellant Charyn Hamelly appeals from the trial court’s order denying
her petition for review of the Commonwealth’s disapproval of her private
criminal complaint against Cherry Lynne Poteet, Esquire. After a careful
review, we affirm.
The trial court has adequately set forth the relevant facts and procedural
history, in part, as follows:
[Appellant] filed private criminal complaints against her
daughter, Anna Santangelo, her daughter’s husband, Michael
Santangelo, and the couple’s attorney, [Attorney] Poteet, on
November 13, 2017. The complaints allege that [Mr. and Mrs.
Santangelo and Attorney Poteet] conspired to disclose
statements, made by [Appellant] and recorded without her
consent, in violation of the Wiretapping and Electronic
Surveillance Control Act (“Wiretap Act”), 18 Pa.C.S.A. §§ 5701-
5782. Mr. and Mrs. Santangelo disclosed the recordings to the
Pennsylvania State Police on July 11, 2016, and the State Police
filed criminal complaints against [Appellant] and her husband,
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* Former Justice specially assigned to the Superior Court.
J-S68034-18
Michael Hamelly. Mr. and Mrs. Santangelo subsequently filed a
civil action, with the assistance of Attorney Poteet, against
[Appellant] and Mr. Hamelly in the Civil Division of [the trial]
court[.] The civil complaint avers statements made by [Appellant]
during the recorded conversations.
The private criminal complaints address two recordings: the
first taken by Mrs. Santangelo at [Appellant’s] home in Mercer,
Pennsylvania, on July 7, 2016, and the second taken by Mr. and
Mrs. Santangelo at their home in Boardman, Ohio, on July 10,
2016….[T]he alleged substance of the conversations are apparent
from the civil complaint, submitted by [Appellant] as an exhibit to
her [petitions for review]. Mr. and Mrs. Santangelo aver that Mrs.
Santangelo was sexually abused by Mr. Hamelly as a teenager.
They further allege that [Appellant] took no action to stop this
abuse despite having knowledge of the abuse. The recordings
allegedly contain [Appellant] and Mr. Hamelly’s admissions to the
conduct averred in the complaint.
After reviewing [Appellant’s] private criminal complaints,
First Assistant District Attorney P. Brian Farrone, Esq., sent
[Appellant] a letter stating that her complaints had been
disapproved by the District Attorney’s Office[.] This letter
contained no explanation for the disapproval. [Appellant then filed
petitions for review with the trial court pursuant to Pa.R.Crim.P.
506.] [The trial] court ordered the Commonwealth to file a
response to the [p]etitions that identified the reasons for which
[Appellant’s] complaints were disapproved, pursuant to
Pa.R.Crim.P. 506(B)(2). With regard to Mrs. Santangelo, ADA
Farrone stated:
The Office of the District Attorney of Mercer
County has determined that it is not in the best
interest of justice to prosecute individuals for crimes,
which are related to the crime of which they are a
victim, unless the alleged crime is determined to be
more serious in nature or consequence than the crime
of which they are the victim.
[ADA Farrone’s] Resp. at ¶ 10. With regard to Mr. Santangelo and
Attorney Poteet, ADA Farrone identified a lack of facts sufficient
to establish probable cause to prosecute [them]. [Specifically, as
to Attorney Poteet, ADA Farrone indicated Appellant’s complaint
alleged insufficient facts to establish probable cause to believe
that Attorney Poteet had committed an offense under 18 Pa.C.S.A.
§ 5703 or an associated inchoate offense.]
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Trial Court Opinion, filed 3/29/18, at 2-3 (citations to record omitted).
By order entered on March 29, 2018, the trial court affirmed ADA
Farrone’s disapproval of the private criminal complaints as to Mr. and Mrs.
Santangelo, as well as Attorney Poteet, and denied Appellant’s petition for
review. Thereafter, Appellant filed a timely notice of appeal solely from the
trial court’s order pertaining to Attorney Poteet.1 All Pa.R.A.P. 1925
requirements have been met.
On appeal, Appellant claims the trial court erred in affirming ADA
Farrone’s disapproval of the private criminal complaint as to Attorney Poteet.
Specifically, Appellant contends her complaint presents a prima facie case that
Attorney Poteet violated 18 Pa.C.S.A. § 5703 and/or 18 Pa.C.S.A. § 903.
Appellate examination of a trial court’s review of a district attorney’s
decision to disapprove a private criminal complaint is as follows:
[W]hen 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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1 Appellant’s petition for review as to Attorney Poteet was docketed in the trial
court at 12 M.D. 2018; her petition for review as to Mrs. Santangelo was
docketed at 13 M.D. 2018; and her petition for review as to Mr. Santangelo
was docketed at 14 M.D. 2018. In her notice of appeal, Appellant listed solely
trial court docket number 12 M.D. 2018, and her appellate issues are limited
to the trial court affirming ADA Farrone’s disapproval of the private criminal
complaint as to Attorney Poteet. Thus, we shall confine our analysis
accordingly.
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***
[W]hen 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) (quoting In re Private
Criminal Complaint of Wilson, 879 A.2d 199, 214–15 (Pa.Super. 2005) (en
banc) (internal citations omitted)).
“A private criminal complaint must at the outset set forth a prima facie
case of criminal conduct.” In re Ullman, 995 A.2d at 1213. Nevertheless,
“a well-crafted private criminal complaint cannot be the end of the inquiry for
the prosecutor.” Id. (quoting In re Private Criminal Complaint of Adams,
764 A.2d 577, 580 (Pa.Super. 2000)). The district attorney must investigate
the allegations of a properly drafted complaint to permit a proper decision on
whether to approve or disapprove the complaint. In re Ullman, 995 A.2d at
1213. “[S]uch investigation is not necessary where the allegations of criminal
conduct in the complaint are unsupported by factual averments.” Id. (quoting
Commonwealth v. Muroski, 506 A.2d 1312, 1317 (Pa.Super. 1986) (en
banc)). Both the district attorney and the trial court have a responsibility to
prevent the misuse of judicial and prosecutorial resources in the pursuit of
futile prosecutions. In re Ullman, 995 A.2d at 1213.
[Moreover,] even if the facts recited in the complaint make
out a prima facie case, the district attorney cannot blindly bring
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charges, particularly where an investigation may cause him to
question their validity. Forcing the prosecutor to bring charges in
every instance where a complaint sets out a prima facie case
would compel the district attorney to bring cases he suspects, or
has concluded via investigation, are meritless. The public
prosecutor is duty bound to bring only those cases that are
appropriate for prosecution. This duty continues throughout a
criminal proceeding and obligates the district attorney to withdraw
charges when he concludes, after investigation, that the
prosecution lacks a legal basis.
In re Miles, 170 A.3d 530, 535 (Pa.Super. 2017) (quotation omitted).
Here, Appellant averred in her private criminal complaint that Attorney
Poteet violated 18 Pa.C.S.A. § 5703, which provides the following:
§ 5703. Interception, disclosure or use of wire, electronic
or oral communications
Except as otherwise provided in this chapter, a person is guilty of
a felony of the third degree if he:
(1) intentionally intercepts, endeavors to intercept, or procures
any other person to intercept or endeavor to intercept any wire,
electronic or oral communication;
(2) intentionally discloses or endeavors to disclose to any other
person the contents of any wire, electronic or oral communication,
or evidence derived therefrom, knowing or having reason to know
that the information was obtained through the interception of a
wire, electronic or oral communication; or
(3) intentionally uses or endeavors to use the contents of any
wire, electronic or oral communication, or evidence derived
therefrom, knowing or having reason to know, that the
information was obtained through the interception of a wire,
electronic or oral communication.
18 Pa.C.S.A. § 5703 (bold in original).
Appellant also averred in her private criminal complaint that Attorney
Poteet violated 18 Pa.C.S.A. § 903, which provides, in relevant part, the
following:
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§ 903 Criminal conspiracy
(a) Definition of conspiracy.--A person is guilty of conspiracy
with another person or persons to commit a crime if with the intent
of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S.A. § 903 (bold in original).
Specifically, Appellant averred that Attorney Poteet committed a crime
under Section 5703 and/or Section 903 by (1) advising or conspiring with Mrs.
Santangelo to record conversations Mrs. Santangelo had with Appellant
without Appellant’s knowledge and (2) disclosing the content of these
conversations in a complaint filed in a civil action against Appellant.
In the case sub judice, ADA Farrone disapproved Appellant’s private
criminal complaint as to Attorney Poteet on the basis there was insufficient
probable cause to support Appellant’s averments. This constituted a legal
conclusion, for which our standard of review is de novo and our scope of review
is plenary. See Muroski, 506 A.2d at 1319 (“When a district attorney
receives a private criminal complaint, the issue of whether the complaint
states probable cause is a pure issue of law[.]”). See also In re Ullman,
supra (setting forth our standard and scope of review).
As it relates to Appellant’s averment that Attorney Poteet advised Mrs.
Santangelo to record the conversations, we conclude the trial court did not err
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in finding there was insufficient probable cause or factual evidence supporting
Appellant’s assertion. For instance, in the civil deposition testimony given by
Mrs. Santangelo,2 which Appellant attached to her petition for review, Mrs.
Santangelo testified she decided on her own, and without suggestion from
anyone else, to record the conversations with Appellant. Exhibit I, Mrs.
Santangelo’s deposition, 1/30/17, at 71. Further, she testified that, prior to
recording the conversations, she had not “consulted with an attorney” or
“talked to any lawyers[.]” Id. at 80, 86.
Moreover, ADA Farrone testified as follows at the hearing on Appellant’s
petition for review:
Q: Did you also review the complaint against—the attempted
complaint against [Attorney] Poteet[?]
A: I did.
Q: Did you deny th[at] complaint[] as well?
A: I did.
Q: What was the basis for denying th[e] complaint?
A:…It was not a policy consideration. It was basically that after
review of the facts alleged and some of the information alleged in
the petition was in direct conflict with the attached deposition. I
just did not believe there was sufficient evidence to support
probable cause of criminal misdoing by [Attorney Poteet].
N.T., 2/26/18, at 16.
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2 Mrs. Santangelo gave the deposition in the civil action, which she filed
against Appellant and Mr. Hamelly.
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Thus, applying our standard of review, we hold the trial court did not err
in concluding there was insufficient probable cause as it relates to Appellant’s
assertion that Attorney Poteet advised or conspired with Mrs. Santangelo to
record the subject conversations. See In re Ullman, supra.
Moreover, we conclude the trial court did not err as it relates to
Appellant’s averment that Attorney Poteet violated or conspired to violate
Section 5703 by disclosing the contents of the recorded conversations in a
civil complaint, which was filed by Mrs. Santangelo against Appellant.
Generally, the Wiretap Act “prohibits the interception, disclosure, or use of
any wire, electronic or oral communication.” Commonwealth v. Deck, 954
A.2d 603, 607 (Pa.Super. 2008) (citing 18 Pa.C.S.A. § 5703). However, as
the trial court indicated, in 18 Pa.C.S.A. § 5704, the Wiretap Act provides for
exceptions to Section 5703’s prohibitions and allows for the interception of a
wire, electronic or oral communication in designated circumstances. Deck,
954 A.2d at 607.
Pertinent to this case, Subsection 5704(17) provides an exception for
victims to intercept communications when they have reasonable suspicion that
the intercepted party is committing, about to commit, or has committed a
crime of violence, and there is reason to believe that evidence of the crime of
violence may be obtained from the interception. 18 Pa.C.S.A. § 5704(17).
Further, the term “crime of violence” includes various sexual offenses as well
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as conspiracy to commit such offenses. 18 Pa.C.S.A. § 5702. Accordingly, as
the trial court reasoned:
[The court] finds no probable cause exists to believe that
Mrs. Santangelo did not have reasonable suspicion that both
[Appellant] and Mr. Hammelly had committed crimes of violence
against her, or conspired to do so, and that evidence of such
crimes would likely be obtained from the recording of these
conversations. Therefore, neither she nor her alleged co-
conspirator,…Attorney Poteet, committed any violation of the
Wiretap Act by disclosing these recordings. Accordingly, the
Commonwealth correctly determined that no probable cause
existed to prosecute these private criminal complaints.
Trial Court Opinion, filed 3/29/18, at 6-7 (footnote omitted).
We conclude the trial court did not err, and, thus, we affirm.3 See In
re Ullman, supra.
For all of the foregoing reasons, we affirm the trial court’s denial of
Appellant’s petition for review of the Commonwealth’s disapproval of her
private criminal complaint as to Attorney Poteet.
Affirmed.
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3 We note ADA Farrone offered alternate legal arguments regarding the
application of the Wiretap Act, including the argument that the Wiretap Act is
not applicable to communications intercepted in Ohio, as was the case with
the July 10, 2016, recording. However, in light of our discussion supra, we
need not address ADA Farrone’s alternate arguments.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2018
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