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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: DAVID C. NOWAKOWSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: DAVID NOWAKOWSKI :
:
:
:
:
: No. 1426 WDA 2018
Appeal from the Order Entered September 18, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
MD 373-2018
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 16, 2019
David Nowakowski appeals pro se from the order denying his petition
for review of the Commonwealth’s disapproval his private criminal complaint.
We affirm.
On June 26, 2018, Nowakowski filed a Petition for Appeal of Disapproval
under Pennsylvania Rule of Criminal Procedure 506(B)(2).1 Nowakowski
claimed that he had filed a private criminal complaint (hereinafter, “the
Complaint”) with the Erie County District Attorney’s Office, which the
Commonwealth had disapproved on the basis that it lacked in prosecutorial
merit. Nowakowski alleged that the Commonwealth failed to have an attorney
review the Complaint; the Commonwealth had not explained in what way the
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1 The rule provides that if an attorney for the Commonwealth disapproves a
private criminal complaint, the affiant may petition the court of common pleas
for review of the decision. See Pa.R.Crim.P. 506(B)(2).
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Complaint was deficient; and Nowakowski had discovered additional facts not
included in the Complaint. Nowakowski did not attach a copy of the
disapproved Complaint to his petition seeking review.
The trial court responded by sending a letter to Nowakowski, which it
filed upon the docket. The letter informed Nowakowski that the court reviewed
“the entire file at the Clerk of Courts Office” and found that “there is no
information filed by you supporting [this] request.” Letter, 7/18/18. The court
allowed Nowakowski until August 21, 2018, to file a supplemental petition
identifying the people Nowakowski wished to be charged, stating their alleged
crimes, and explaining the factual allegations supporting those crimes.
Nowakowski filed an additional document with the court titled “Re:
Additional Facts for Affiant/Appellant.” Namely, Nowakowski claimed that
members of the Carrara family had engaged in a plan to harass and threaten
him in retaliation for contacting the Pennsylvania Human Relations
Commission regarding workplace harassment during his employment with
Amthor Steel Company. Among other things, Nowakowski alleged,
[D]uring the summer of 2018, a bullet was left on the [sidewalk]
in front of [Nowakowski] as he walked his dogs. [Nowakowski]
turned around to see that a teen[age] girl was standing on the
roof of a nearby garage watching [Nowakowski] pick up the bullet.
On the following day[,] a small metal trinket in the same shape as
a glass design, which hangs in the sunroom of [Nowakowski’s]
mother’s home was found at the same location.
Re: Additional Facts for Affiant/Appellant at 9-10 (unpaginated).
Nowakowski listed the charges as intimidation, intimidation of a witness,
criminal contempt, involuntary servitude, inchoate crimes, criminal mischief,
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and attempted murder. Nowakowski listed the defendants as eleven business
organizations, the Erie County Prothonotary, and the Superior Court
Prothonotary. Nowakowski referred to the then-pending civil action he brought
against many of the same defendants, and attached copies of multiple filings
from the civil case.2
The trial court denied the petition by an order entered September 18,
2018. The court found that the Commonwealth had not abused its discretion
in disapproving the Complaint, and stated that it would not interfere with the
“wide discretionary latitude a prosecutor has in evaluating private criminal
complaints.” Order, 9/18/18.
Nowakowsi appealed, and raises the following issues:
A. Did the District Attorney and later the trial court [err] by
considering [Nowakowski’s] [C]omplaint “lacking prosecutorial
merit[”]?
B. If the review of a private criminal complaint cannot be traced
to an [a]ttorney for the Commonwealth, via the [a]ttorney’s
signature, is the disapproval reached in error, via an abuse of
discretion or fraud?
C. If the review of a private criminal complaint cannot be traced
to an Attorney for the Commonwealth, via the [a]ttorney’s
signature, can the affiant reasonably receive a fair and impartial
determination in the Erie County Court of Common Pleas?
D. Is there an implied court order or court approved consent
agreement, preventing or tabulating for prosecution, all inchoate
or direct criminal acts once a civil or criminal action is filed? Similar
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2 The civil case was dismissed with prejudice, and we affirmed. See
Nowakowski v. E.E. Austin & Son, Inc., No. 1854 WDA 2017 (Pa.Super.
filed Nov. 20, 2018) (unpublished memorandum).
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to Title 23, Section 6113.1 (Creating a back drop for exactly how
the abuse of discretion was achieved)[?]
Nowakowski’s Br. at 7 (suggested answers omitted).
Nowakowski waived these issues. Taking his last issue first, Nowakowski
did not raise any argument related to 23 Pa.C.S.A. § 6113.1 or the prosecution
of criminal actions during the pendency of related civil actions before the trial
court. This issue is thus waived. See Pa.R.A.P. 302(a) (arguments cannot be
raised for the first time on appeal).
In addition, because there is no copy of the disapproved Complaint in
the certified record, Nowakowski waived his claims that the Commonwealth
improperly disapproved the Complaint without having it reviewed by an
attorney and that that the trial court erred in deferring to the Commonwealth’s
conclusion that the Complaint lacked prosecutorial merit. The appellant bears
the burden of ensuring that the certified record is complete, and we are unable
to consider evidence that is not found in the certified record. See
Commonwealth v. Preston, 904 A.2d 1, 6-8 (Pa.Super. 2006) (en banc).
Without a certified copy of the disapproved Complaint, we cannot resolve
these issues.
In any event, they are meritless. Nowakowski does not argue that the
person who signed the disapproved Complaint is not an attorney or that the
signature was forged. He instead contends that because the cover letter
accompanying the disapproved Complaint was signed by a non-attorney, the
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Commonwealth did not have an attorney review the Complaint. This is a non
sequitur.
Nor has Nowakowski proven that the trial court abused its discretion. A
trial court reviews the district attorney’s determination that a case lacks
prosecutorial merit under an abuse of discretion standard, and we review the
trial court’s decision under the same standard. In re Rafferty, 969 A.2d 578,
582 (Pa.Super. 2009). The private criminal complainant bears the burden of
proving that the district attorney’s decision was “patently discriminatory,
arbitrary, or pretextual, and therefore not in the public interest,” or that the
decision “amounted to bad faith, fraud, or unconstitutionality.” In re Wilson,
879 A.2d 199, 215 (Pa.Super. 2005) (en banc).
Nowakowski has failed to carry his burden. Nowakowski alleges only
that the Commonwealth failed to investigate the allegations in his Complaint.
However, the allegations do not lead to the conclusion that the
Commonwealth’s decision not to prosecute amounted to “bad faith, fraud or
unconstitutionality,” or was “patently discriminatory, arbitrary or pretextual.”
Id. We therefore affirm the order of the trial court denying his petition for
review.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2019
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