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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RUBEN R. CRAIG : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DISTRICT ATTORNEY OF VENANGO : No. 204 WDA 2019
COUNTY :
Appeal from the Order Entered September 6, 2018
In the Court of Common Pleas of Venango County Domestic Relations at
No(s): CP-61-MD-0000040-2018
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 15, 2020
Ruben R. Craig (Craig) appeals from the September 6, 2018 order of
the Court of Common Pleas of Venango County (trial court) denying his
petition for approval of five private criminal complaints. We affirm.1
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* Retired Senior Judge assigned to the Superior Court.
1 The district attorney has filed an Application to Quash Appeal based on
Craig’s substantial failure to comply with our Rules of Appellate Procedure.
Craig’s brief fails to comply with the Rules in myriad ways, and we could quash
the appeal on this basis. See Pa.R.A.P. 2101; Commonwealth v. Spuck, 86
A.3d 870, 871 (Pa. Super. 2014) (quashing appeal for “flagrant failure to file
a brief that conforms to the Pennsylvania Rules of Appellate Procedure”).
However, because we are able to discern his arguments, we decline to quash.
The district attorney also argues that the appeal was untimely filed, as the
trial court denied Craig’s petition on September 6, 2018, and Craig’s pro se
notice of appeal was not timestamped by the trial court Prothonotary until
December 3, 2018. This court issued a Rule to Show Cause why the appeal
should not be quashed as untimely. Craig filed a response arguing that the
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We glean the following facts from the record. In May 2016, Craig was
involved in an altercation with Shawn Schillinger (Schillinger), Robert
Neubauer (Neubauer) and Michael Ahrens (Ahrens) that ended with Craig
stabbing Schillinger twice in the groin. At Craig’s criminal trial, the
Commonwealth put forth evidence that Craig had engaged in a course of
intimidation and stalking against his sister-in-law, Brooke Biernesser
(Brooke), and anyone involved with her family, including Neubauer, her
paramour, and Ruth Biernesser, her mother. The stabbing occurred when the
three men confronted Craig about this behavior. Craig was ultimately
convicted of, inter alia, attempted homicide for stabbing Schillinger.2 18
Pa.C.S. § 901(a), 2501.
I.
This appeal involves five private criminal complaints that Craig filed
against Kyle Snell (Snell), Neubauer and Brooke alleging that they had
committed various crimes related to the purported transfer of a firearm and
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prisoner mailbox rule applied because he gave his notice of appeal to prison
authorities for mailing on September 27, 2019. A review of the certified record
reveals a DC-138A cash slip from that date, signed by a prison official,
indicating that he purchased postage for the notice of appeal on that date.
The cash slip lists the trial court docket number for this case and was included
with the notice of appeal when filed. Based on this evidence, the appeal was
timely filed pursuant to the prisoner mailbox rule. Smith v. Pa. Bd. of
Probation & Parole, 683 A.2d 278, 282 (Pa. 1996).
2 Brooke and Neubauer testified at Craig’s criminal trial.
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the group assault on Craig. Craig alleged that the three men physically
attacked him in the street and that he stabbed Schillinger in self-defense after
Schillinger hit him on the head with half of a brick. He contends that Brooke
instigated the attack through text messages urging Schillinger to assault
Craig. Craig believes that Brooke and Neubauer orchestrated the attack based
on racial animus, as Brooke was unhappy that her sister had married Craig,
who is black.
Craig further alleged that following the altercation, the three men went
to Neubauer’s house, where Neubauer retrieved a firearm in case Craig had
followed them. Craig avers that Neubauer and Brooke received this firearm
from Snell, who was Ruth Biernesser’s paramour. Snell allegedly told police
that the firearm had belonged to him. Brooke refused to tell the police where
Neubauer had gotten the firearm, saying that she “[didn’t] want to get anyone
in trouble.” See Writ of Mandamus in Appeal of District Attorney’s Disapproval
of Private Criminal Complaint Forms (“Petition for Review”) at Paragraph 12.
The district attorney disapproved each of the private complaints,
attaching reasons for doing so to each of the complaints. As to the private
complaints setting forth the firearm violations, the district attorney reasoned
that because Snell was Ruth Biernesser’s paramour at the time he allegedly
transferred the firearm to Brooke, the transfer was allowed because it was
between “family” members. As an alternative reason, the district attorney
also noted that the transfer was temporary and had been necessary given
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Craig’s history of threatening behavior toward Brooke. He also found that
there was no evidence that there was a transfer to Neubauer. As to the non-
firearm violations, the district attorney disapproved those private complaints
because all of the evidence adduced at the criminal trial was contrary to what
Craig alleged.
Craig then filed a Petition for Review with the trial court claiming that
the disapproval was improper because he had made out a prima facie case of
the charges set forth in each of the private complaints. Holding only that
merely making out a prima facie case is insufficient to reverse the district
attorney’s decision not to approve the private complaints related to the
firearm, the trial court denied Craig’s Petition for Review as to those
complaints. The trial court also denied Craig’s Petition for Review as to the
other complaints because based on the facts, no offense had been made out.
Craig filed a timely notice of appeal and both he and the trial court have
complied with Pa.R.A.P. 1925.3
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3 “Where the district attorney’s denial is based on a legal evaluation of the
evidence, the trial court undertakes a de novo review of the matter. Where
the district attorney’s disapproval is based on policy considerations, the trial
court accords deference to the decision and will not interfere with it in the
absence of bad faith, fraud or unconstitutionality. In the event the district
attorney offers a hybrid of legal and policy reasons for disapproval, deference
to the district attorney’s decision, rather than de novo review, is the
appropriate standard to be employed.” In re: Private Complaint of
Owens, 810 A.2d 172, 175-176 (Pa. Super. 2002) (internal quotations and
citations omitted).
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II.
While Craig lists eight separate questions in his brief’s Statement of
Questions involved, all of the questions relate to whether the trial court abused
its discretion in finding that the district attorney’s disapproval of his private
criminal complaints was proper when there was prima facie evidence to
support prosecution.
A.
An individual who is not a law enforcement officer may submit a private
criminal complaint to the district attorney seeking prosecution for the crimes.
See Pa.R.Crim.P. 506(A). The district attorney, within his discretion, may
then elect to either approve or disapprove the complaint. Id. At a minimum,
the private criminal complaint must set out a prima facie case of criminal
conduct. In re Ullman, 995 A.2d 1207, 1213 (Pa. Super. 2010). The district
attorney is further obliged to investigate the allegations in the complaint to
determine whether prosecution is in the public interest. Id.
[E]ven if the facts recited in the complaint make out a prima facie
case, the district attorney cannot blindly bring 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 district attorney is permitted to exercise sound discretion to
refrain from proceeding in a criminal case whenever he, in good
faith, thinks that the prosecution would not serve the best
interests of the state. This decision not to prosecute may be
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implemented by the district attorney’s refusal to approve the
private criminal complaint at the outset.
In re Miles, 170 A.3d 530, 535 (Pa. Super. 2017) (internal quotations and
citations omitted).4
If the district attorney disapproves a private criminal complaint, the
complainant can petition the Court of Common Pleas for review. In such a
challenge to the disapproval, the complainant must do more than show that
the district attorney’s decision was flawed but is also required to show that
the decision amounted to bad faith, fraud or was unconstitutional. 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. In re Private Criminal Complaints
of Rafferty, 969 A.2d 578, 581-82 (Pa. Super. 2009).
B.
Craig alleges that Snell, Neubauer and Brooke violated the Uniform
Firearms Act (Act)5 when Snell improperly transferred a firearm to Brooke,
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4 On appeal, this court considers whether the trial court committed an error
of law or an abuse of discretion in evaluating the district attorney’s disapproval
of the private criminal complaint; we do not review the district attorney’s
underlying decision. In re: Private Complaint of Owens, supra.
5 18 Pa.C.S. §§ 6101-6124. The Act mandates that transfers of firearms
between individuals who are not licensed to perform such transfers must take
place in “the place of business of a licensed importer, manufacturer, dealer or
county sheriff's office, the latter of whom shall follow the procedure set forth
in this section as if he were the seller of the firearm.” 18 Pa.C.S. § 6111(c).
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who in turn transferred it to Neubauer to use as protection against Craig.
Craig also alleged that Brooke knew the firearm would be used in a crime and,
as a result, she could be held liable for those crimes. 18 Pa.C.S. § 6111(g)(5).
The district attorney’s investigation into the evidentiary foundations of
the complaint was based primarily on the testimony and other evidence
presented at Craig’s criminal trial, over which the trial court also presided.
Craig offered no additional evidence in support of his private criminal
complaints or Petition for Review, instead only insisting that when a prima
facie case is alleged, the district attorney is obligated to approve the
complaint. However, this misstates the district attorney’s duties. Even
assuming a prima facie case is made out, the district attorney may exercise
discretion to decline prosecution if he or she believes it would not be in the
best interest of the state. In re Miles, supra.
Here, based on his knowledge of the events leading to Craig’s criminal
trial and the evidence adduced at that trial, the district attorney determined
that he would not be able to sustain any convictions related to the alleged
transfer of the firearm. Snell was in a relationship with Brooke’s mother and
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It provides transfers between spouses, parents and children, and
grandparents and grandchildren are exempt. Id. We disagree with the district
attorney that a paramour falls within that exemption. Moreover, we also note
that the allegations in the private criminal complaint did not make out that
there was a transfer of a firearm, only that Snell lent the firearm to Brooke.
See 18 Pa.C.S. § 6115(b).
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he allegedly “transferred” the firearm out of necessity when Craig continued
to pose a threat to Brooke. No evidence supported Craig’s assertion that
Brooke then unlawfully gave the firearm to Neubauer. Given the history
between these parties, the district attorney did not believe prosecution would
be successful or in the public interest, and the trial court agreed. Craig has
not sustained his heavy burden establishing that this rationale “amounted to
bad faith, fraud or unconstitutionality.” In re: Private Complaint of
Owens, supra. Accordingly, we find no abuse of discretion by the trial court
with respect to these complaints.
C.
The remaining private complaints revolved around Brooke and
Neubauer’s involvement in the altercation that led to Craig stabbing
Schillinger. Craig alleged that Brooke committed criminal use of a
communication facility (CUCF),6 conspiracy to commit riot,7 conspiracy to
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6 A person commits CUCF if she “uses a communication facility to commit,
cause or facilitate the commission or the attempt thereof of any crime which
constitutes a felony. . .” 18 Pa.C.S. § 7512(a).
7“A person is guilty of riot . . . if he participates with two or more others in a
course of disorderly conduct: with intent to commit or facilitate the
commission of a felony or misdemeanor.” 18 Pa.C.S. § 5501(1). Likewise, a
person may be convicted of criminal conspiracy if
with the intent of promoting or facilitating [a crime’s] 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)
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commit aggravated assault,8 and ethnic intimidation9 when she urged
Schillinger, Neubauer and Ahrens by text message to assault Craig based on
her racial animus towards him. He alleges that Neubauer committed the
crimes of riot, conspiracy to commit aggravated assault, and ethic intimidation
for his role in the group assault. Again, the alleged factual foundation for
these crimes was based on the testimony adduced at Craig’s criminal trial.
In disapproving the complaint against Brooke, the district attorney cited
to the testimony at Craig’s four-day criminal trial and determined that none
of the allegations against Brooke were supported by that evidence. In
disapproving the complaint against Neubauer, the district attorney found that
the evidence from the night of the altercation suggested only that Schillinger
had participated in a physical attack, not Neubauer. The district attorney also
noted that Schillinger only physically responded after being struck by Craig.
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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. § 903(a).
8 “A person is guilty of aggravated assault if he attempts to cause serious
bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the value
of human life.” 18 Pa.C.S. § 2702(a)(1).
9 A person is guilty of ethnic intimidation if he or she commits any crime “with
malicious intention toward the race, color, religion or national origin of another
individual or group of individuals.”
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At his criminal trial, Craig presented his claims that he had reacted in self-
defense to a group that orchestrated an attack based on racial animus. The
jury was not persuaded by the argument and found Craig guilty of attempted
homicide. As a result, the district attorney determined that there was no
evidence to support the charges against Brooke and Neubauer as the jury’s
verdict had credited the version of events testified to by the Commonwealth’s
witnesses.10
Again, we note that a district attorney is not obligated to approve a
private criminal complaint merely because a prima facie case has been stated
therein. In re Miles, supra. Rather, the district attorney has a professional
duty to investigate the allegations and determine for himself whether
prosecution is in the public interest and a conviction is likely based on available
evidence. Here, the district attorney had the benefit of an entire trial record
to evaluate whether the allegations Craig made against Brooke and Neubauer
merited prosecution. Because the jury did not credit Craig’s version of events
in the criminal trial, where he thoroughly confronted Brooke and Neubauer
with the above allegations, the district attorney determined that he did not
have sufficient credible evidence to seek prosecution of these crimes. Because
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10 Because the district attorney’s disapproval was based on lack of sufficient
evidence, the trial court conducted a de novo review. In re: Private
Complaint of Owens, supra. We, in turn, conduct our own de novo review
of the trial court’s determination. In re Wilson, 879 A.2d 199, 214 (Pa.
Super. 2005) (en banc).
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Craig put forth no additional evidence in his private criminal complaints that
would suggest prosecution of the crimes would be successful and in the public
interest, the district attorney and the trial court were more than justified in
dismissing the Petition for Review because it is an impermissible collateral
attack on his jury conviction. Consequently, we hold that the trial court did
not err in denying the Petition for Review.
Application to Quash Appeal denied; Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/2020
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