J. A25006/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: NIKHIL S. GOKLANEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: NIKHIL S. GOKLANEY :
: No. 86 MDA 2016
Appeal from the Order Entered October 8, 2015,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-MD-0001376-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 17, 2016
Nikhil S. Goklaney appeals pro se from the October 8, 2015 order
entered in the Court of Common Pleas of Dauphin County that denied his
petition for review from the denial of his private criminal complaint. We
affirm.
The trial court set forth the following:
The instant appeal arises from the Trial Court’s
denial of a Petition for Review of Private Criminal
Complaint. [Appellant] requested that the Dauphin
County District Attorney’s Office (“District Attorney’s
Office”) pursue a private criminal complaint to
prosecute Vincent Ortega for alleged harassment.
On March 18, 2015, [appellant] submitted a private
criminal complaint which requested that the
Commonwealth file charges of Harassment and False
Reports to Law Enforcement Authorities against
Vincent Ortega. The District Attorney’s Office by
Kristyne M. Sharpe, Esq., Deputy District Attorney
responded by letter dated April 29, 2015, that, based
upon their investigation, the requested criminal
* Former Justice specially assigned to the Superior Court.
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charges would be inappropriate and a successful
prosecution highly unlikely. Assistant District
Attorney Sharp [sic] found that the requested
charges related to [appellant’s] repeated attempts to
engage his former wife and Mr. Ortega were related
to a custody dispute properly addressed as a civil
matter. Attorney Sharpe further noted that
[appellant,] in fact, had been charged with
harassment arising out of his repeated calls and text
messages to Mr. Ortega. Attorney Sharpe apprised
[appellant] of the decision of the District Attorney’s
Office as follows:
Ultimately, your Private Criminal
Complaint has been disapproved. I have
determined that the use of limited
resources to support a criminal
prosecution in this matter would not be
in the Commonwealth’s best interest.
Further, I feel that proving to a jury that
Mr. Ortega committed the crime of
harassment, beyond a reasonable doubt,
would be highly unlikely.
On June 19, 2015, [appellant] filed a second
Private Criminal Complaint in which he requested
that the Commonwealth file charges based upon the
same facts. Again, Assistant District Attorney
Sharpe apprised [appellant] that the District
Attorney’s Office would not file charges against
Mr. Ortega. Attorney Sharpe apprised [appellant] of
the decision of the District Attorney’s Office as
follows:
. . . After my investigation, which
included review of the paperwork you
submitted and review of the police
reports from Derry township, I have
again concluded that criminal charges
are inappropriate via a Private Criminal
Complaint and that a successful criminal
prosecution, proving the charges beyond
a reasonable doubt, is highly unlikely.
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I am confident the police are aware
of your situation and are handling said
matters appropriately. Should you have
any questions regarding follow-up, I
recommend contacting the police
departments directly.
It is my understanding that there is
ongoing litigation regarding custody.
Said litigation should be able to address
any such matters between you and Mr.
[a]nd Mrs. Ortega. As such, I have
determined that the use of limited
resources to support criminal prosecution
in this matter would not be in the
Commonwealth’s interest.
On October 2, 2015, [a]ppellant filed a Petition
to Review the decision of the Dauphin County District
Attorney’s Office which denied his request to
prosecute Vincent Ortega of alleged “harassment,
falsely incriminating another and filing fictitious
reports under [Sections] 2709(a)(2), 4906(a) and
4906(b) of the Pa. Crimes Code.” On October 6,
2015, the Commonwealth filed a Response to the
Petition for Review from Denial of [Appellant’s]
Private Criminal Complaint. We denied the Petition
on October 7, 2015. [Appellant] filed a Notice of
Appeal on November 6, 2015. [Appellant] then filed
a Petition for Reconsideration which we denied on
November 9, 2015.
Trial court opinion, 3/3/16 at 1-3 (record citations and asterisks omitted).
We note that in its opinion, the trial court stated that although it did
not direct appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, appellant did so on December 7, 2015. (Id. at 3.)
The record, however, reflects that on November 17, 2015, the trial court did,
in fact, order appellant to file a Pa.R.A.P. 1925(b) statement within 21 days.
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(Order of court, 11/17/15; Docket #14.) The order provided, among other
things, that “[a]ny issue not properly included in the Statement timely filed
and served pursuant to Pa.R.A.P. 1925(b)(1) shall be deemed waived.”
(Id.) Appellant filed a timely Rule 1925(b) statement that raised the
following issues:
1. The Court denied [appellant’s] petition for
review even though Vincent and Christina
Ortega stalked/followed [appellant] on
December 25, 2014 with the intent to harass,
annoy and alarm him and there is evidence of
this available by way of a Derry Township
Police Department incident report.
2. “Limited resources” cited by the Dauphin
County District Attorney as the reason for not
prosecuting is not a valid reason for not
prosecuting a crime.
Concise statement of errors, 12/7/15 at 1.
In this appeal, appellant raises the following issue:
Did [the] trial court judge correctly deny
[a]ppellant’s Petition for Review of private criminal
complaint to prosecute Vincent Ortega for
harassment?
Appellant’s brief at 6.
In his brief, appellant argues that the trial court abused its discretion
for failing to review his petition de novo; specifically, that:
[s]ince the District Attorney has stated in its
response to [a]ppellant’s petition for review that
they denied [a]ppellant’s complaints since they
“failed to establish a prima facie case of criminal
conduct” which must be based upon a legal
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evaluation of the evidence the trial court judge must
undertake a de novo review.
Appellant’s brief at 18-19. Appellant failed to raise this issue in his 1925(b)
statement and, therefore, waives it on appeal. Pa.R.A.P. 1925(b)(4)(vii)
(issues not included in the statement are waived).
Nevertheless, we note that appellant cites to In re Rafferty, 969 A.2d
578 (Pa.Super. 2009), to support his contention that he was entitled to a
de novo review. (Appellant’s brief at 19.) Appellant, however,
misconstrues Rafferty and also ignores that part of the opinion that
reaffirms a trial court’s standard of review of a district attorney’s decision to
disapprove a private criminal complaint on wholly policy considerations, or
on a hybrid of legal and policy considerations, as an abuse of discretion. Id.
at 581. Here, as noted by the trial court and as supported by the record:
[T]he Commonwealth articulated a hybrid of legal
and policy rationale in support of its denial. The
Assistant District Attorney cited the unlikelihood of
successfully prosecuting Mr. Ortega where the
alleged conduct related to a civil matter. The District
Attorney’s Office further based its decision upon the
existence of charges against [appellant] for
harassment for repeated contact with Mr. Ortega.
The Commonwealth concluded, as a matter of policy,
that pursuit of the dubious claim would be contrary
to the Commonwealth’s interest in appropriate use of
its limited resources.
Trial court opinion, 3/3/16 at 5.
Therefore, even if appellant had not waived his issue on appeal for
failure to include it in his Rule 1925(b) statement, it would nevertheless lack
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merit because the district attorney cited policy reasons for disapproving
appellant’s private criminal complaints and the trial court, therefore,
properly reviewed that decision for an abuse of discretion. See, e.g.,
Rafferty, 969 A.2d at 581 (reaffirming that a trial court’s standard of review
when reviewing a district attorney’s decision to disapprove a private criminal
complaint on wholly policy considerations, or on a hybrid of legal and policy
considerations, is an abuse of discretion); see also In re Wilson, 879 A.2d
199, 215 (Pa.Super. 2005) (en banc) (indicating that the district attorney’s
disapproval of a private complaint based on its determination that a
conviction is unlikely constitutes a policy reason for that disapproval); see
also Commonwealth v. Cooper, 710 A.2d 86, 81 (Pa.Super. 1998)
(holding that a district attorney’s assertion that a complainant has an
available civil remedy constitutes a policy reason for the disapproval of a
private criminal complaint).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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In Re: Goklaney, N.
Combined Opinion