J-A14033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: KASHIF ROBERTSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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: No. 1020 MDA 2021
Appeal from the Order Entered July 14, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-MD-0000954-2021
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 25, 2022
Kashif Robertson appeals pro se from the July 14, 2021 order denying
his petition for review of the disapproval of his private criminal complaint.
After careful review, we affirm.
The trial court summarized the relevant facts of this case as follows:
On February 2, 2019, Appellant was pulled over for a
window tint violation. Officer Chad McGowan testified
that he believed the light transmission reading was
17% on scene. This reading was included in his
criminal complaint but omitted from the final police
report. Officer McGowan further testified that he
included in his report that the results of a
[Pennsylvania Justice Network] search showed
Appellant as a registered owner of the vehicle. He
admitted that Appellant’s mother may be a co-owner.
Officer McGowan later testified, at Appellant’s jury
trial, that he could not recall when exactly he tested
the window tint.
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* Former Justice specially assigned to the Superior Court.
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Trial court opinion, 9/14/21 at 2 (citations to notes of testimony and footnotes
omitted).
The relevant procedural history of this case, as gleaned from the trial
court opinion, is as follows:
On June 21, 2021, Appellant filed a Petition for Review
of the Disapproval of his Private Criminal Complaint.
In his private criminal complaint, Appellant alleged
that Officer Chad McGowan, during a suppression
hearing and a jury trial, committed perjury, made a
false report to a law enforcement authority, tampered
with or fabricated evidence, and made unsworn
falsification to authorities. In a letter dated, May 18,
2021, Deputy District Attorney Colin Zwally stated
that, after a review of the complaint, he concluded
that criminal charges against Officer Chad McGowan
would be inappropriate at that time. Thereafter on
July 1[4], 2021, this Court issued an Order denying
the petition and sustaining the disapproval of the
complaint.
Id. at 1.
On July 28, 2021, Appellant filed a timely notice of appeal. On August
4, 2021, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b). Appellant
filed a timely Rule 1925(b) statement on August 16, 2021, and the trial court
filed its Rule 1925(a) opinion on September 14, 2021.
Appellant raises the following issue for our review:
1. Did the [t]rial [c]ourt abuse its discretion in
sustaining the disapproval of the Dauphin
County District Attorney’s Office refusal to file
Appellant’s Private Criminal Complaint against
[Officer] McGowan, which established more
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than a prima facie showing, and without
making any attempt to investigate the evidence
presented in support of the [a]sserted charges?
Appellant’s brief at 1 (edited for clarity).
Our standard of review of a trial court’s decision to sustain a district
attorney’s disapproval of 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.
....
[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) (citations
omitted), appeal denied, 20 A.3d 489 (Pa 2011).
This court has long recognized that “a private criminal complaint must
at the outset set forth a prima facie case of criminal conduct. Nevertheless,
a well-crafted private criminal complaint cannot be the end of the inquiry for
the prosecutor. The district attorney must investigate the allegations of a
properly drafted complaint to permit a proper decision on whether to approve
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or disapprove the complaint.” In re Hamelly, 200 A.3d 97, 101 (Pa.Super.
2018) (citations and internal quotation marks omitted), appeal denied, 216
A.3d 221 (Pa. 2019).
Furthermore,
even 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 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) (citation omitted).
“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 implemented by the district attorney’s refusal to approve
the private criminal complaint at the outset.” In re Ullman, 995 A.2d at 1214
(citation omitted).
Private criminal complaints are governed by Rule 506 of the
Pennsylvania Rules of Criminal Procedure, which provides, in relevant part, as
follows:
Rule 506. Approval of Private Complaints
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(A) When the affiant is not a law enforcement
officer, the complaint shall be submitted to an
attorney for the Commonwealth, who shall
approve or disapprove it without unreasonable
delay.
(B) If the attorney for the Commonwealth:
(1) approves the complaint, the attorney shall
indicate this decision on the complaint
form and transmit it to the issuing
authority;
(2) disapproves the complaint, the attorney
shall state the reasons on the complaint
form and return it to the affiant.
Thereafter, the affiant may petition the
court of common pleas for review of the
decision.
Pa.R.Crim.P. 506(A)-(B).
“If the [district attorney] disapproves a private criminal complaint, the
complainant can petition the Court of Common Pleas for review[,]” as is the
case here. In re Priv. Crim. Complaints of Rafferty, 969 A.2d 578, 581
(Pa.Super. 2009) (citation omitted).
The private criminal complainant has the burden
to prove the district attorney abused his
discretion, and that burden is a heavy one. In the
Rule 506 petition for review, the 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
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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.
In re Private Criminal Complaint of Wilson, 879 A.2d 199, 215 (Pa.Super.
2005) (en banc) (citation omitted; emphasis added).
Instantly, the district attorney set forth the following reasons for
disapproving Appellant’s private criminal complaint:
First, as a matter of law, the facts alleged in the
criminal complaints and affidavit are insufficient to
support those criminal charges. Additionally, you
failed to sign the criminal complaint. Also, you failed
to include the magisterial district office where you
intended to file your complaint.
As a matter of policy, I have determined that the
public interest would not be served by pursuing this
prosecution in this matter. As such, I have
determined that the use of limited resources to
support criminal prosecution would not be in the
Commonwealth’s best interest.
Trial court opinion, 9/14/21 at 3-4, quoting “Appellant’s Petition for Review of
the Disapproval of Private Criminal Complaint, Exhibit B.”
The trial court found that Appellant failed to satisfy his burden that the
district attorney abused his discretion in disapproving the private criminal
complaint. The trial court noted that Appellant’s petition failed to show how
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the district attorney’s determination that the facts were insufficient to support
the criminal charges constituted an abuse of prosecutorial discretion. Id. at
5. The trial court reasoned that Appellant’s petition merely includes blanket
statements that the evidence he provided established a prima facie showing
of criminal conduct and “fails to establish that the district attorney acted in
bad faith, fraud, or unconstitutionality when disapproving the complaint.” Id.
The trial court further noted that Appellant failed to sign the criminal
complaint and failed to include the magisterial district office where he intended
to file the complaint. The trial court reasoned that “[i]t is the petitioner’s duty
to make sure the relevant portions of his petition are completed correctly.”
Id.
Additionally, the trial court noted that the district attorney’s
investigation of the allegations led him to conclude “that the public interest
would not be served by pursuing this prosecution in this matter.” Id. at 5-6.
Here, the district attorney’s decision to disapprove of Appellant’s private
criminal complaint was clearly a hybrid of legal and policy considerations.
Therefore, the trial court’s standard of review of the district attorney’s decision
was abuse of discretion. See In re Ullman, 995 A.2d at 1213. Our
appropriate standard of review of the trial court’s decision is likewise an abuse
of discretion. See In re Private Criminal Complaint of Wilson, 879 A.2d
at 215.
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Applying the proper standard and scope of appellate review as
enunciated in this case, and following our own independent review of the
certified record, we conclude that Appellant failed to demonstrate an abuse of
discretion by the trial court when it deferred to the district attorney’s decision
to disapprove of Appellant’s private criminal complaint. Accordingly, we affirm
the trial court’s July 14, 2021 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2022
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