Commonwealth v. Muroski

CIRILLO, Judge,

dissenting:

I respectfully dissent. The majority’s conclusion that appellant has standing to pursue prosecution is based solely *34upon a perceived distinction between this case and Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982), a distinction which in reality is of no consequence.

In Malloy, we held that a private criminal complainant has no standing to appeal absent the district attorney’s consent. It so happened that in Malloy, the district attorney originally approved the complaint, but when it was subsequently dismissed by the court for failure to make out a prima facie case, the district attorney chose not to appeal that decision. It was procedurally unique in the sense that it did not involve the more typical situation wherein, after the district attorney dismisses the complaint, it is filed by the complainant for judicial review. By the majority’s analysis, Malloy’s conclusion that “appellant, as victim or witness, lacks ‘party’ status in this criminal prosecution [and thus] has no standing to appeal”, only applies to cases bearing the same procedural posture.

Read in any light, Malloy was never intended to be limited in this way. Regardless of any court action on a district attorney’s disposition of a private complaint, the fact remains that prosecutions are sought to rectify injuries to society. The aggrieved party, if one exists, is the Commonwealth. The victim of the alleged crime may pursue a civil remedy.

Admittedly, the issue in Malloy was phrased to embrace the procedural posture of the case: “whether a victim/complainant has standing to appeal, without the consent of the district attorney, a judicial determination dismissing his complaint.” However, the balance of the opinion contains nothing to support the conclusion that a different procedural setting would dictate a contrary result. Indeed, we summarized the law of various jurisdictions only to support our very general conclusion that victims have no standing to appeal, period: “[A] citizen lacks standing to contest the policies of the prosecuting attorney when he himself is neither prosecuted nor threatened with prosecution ... in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprose-*35cution of another.” Id., 304 Pa.Superior Ct. at 305, 450 A.2d at 693, quoting Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536, 541 (1973).

Clearly, if Malloy stands for one principle, it is that the district attorney has exclusive authority to determine whether prosecution is called for in a given case. This authority is tempered only by the complainant’s right to have the decision reviewed by a court of common pleas so any abuse of discretion by the district attorney may be discovered. Such review will be important to a complainant when the district attorney has in fact abused his discretion, but nonetheless, the court of common pleas’ determination is the end of the line for the complainant on the criminal side.

The majority seems to attach great weight to the fact that the court of common pleas in Malloy went so far as to establish that no prima facie case existed, whereas the reviewing court in this case found only that the complaint did not show probable cause, i.e., the sufficiency of the case itself was not considered. In my view, this indicates only that the Malloy complainant had a greater appealable interest; at least there the district attorney found enough probable cause to initiate prosecution. In any event, the complainant’s interest stretches only to the point of securing a judicial determination that the district attorney did not abuse his discretion in disposing of the complaint.

The same reasoning compels me to the conclusion that In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984), was wrongly decided, it too being based upon a false premise. The Wood court properly stated Malloy’s holding that private complainants lack standing, but then by a tortured analysis found such standing anyway. In Wood, the district attorney chose not to pursue prosecution, whereupon the complainant filed his private complaint with the court of common pleas for review. Our Court reasoned that since complainant himself filed the complaint, he was a “party below” and could therefore take an appeal. The result is nothing less than a procedural absurdity: the Malloy -type *36complainant, who does not have to file the complaint himself because the Commonwealth initially chose to prosecute, must hope that the district attorney chooses to appeal if the case is subsequently dismissed; the Wood -type complainant, in contrast, has the right to appeal simply because the district attorney’s decision not to prosecute forced the complainant to file the complaint with the court on his own. In short, the right to appeal hinges on nothing more than the mere happenstance of the order in which the events unfold.

A complainant is only a “party below” as concerns the judicial review he himself initiated, which is separate and distinct from subsequent criminal prosecution no matter how the caption reads. In the actual prosecution, the complainant will never be anything more than a prosecuting witness, irrespective of his right to seek judicial review of the district attorney’s disposition of the complaint. In my view, when the case is “Commonwealth versus The Accused”, two parties may take an appeal: the Commonwealth, and the accused.

Accordingly, I dissent.

ROWLEY, J., joins.