DISSENTING OPINION BY
Judge McGINLEY.I humbly dissent because this Court may order, in mandamus, the District Attorney to apply the correct interpretation of the Animal Cruelty Law.
At the outset, I do not agree with the majority that this is a simple case of “pros-ecutorial discretion.” District Attorney Adams’ decision to withdraw the Citations was based, not on his “prosecutorial discretion,” but on an error of law. That is, he did not believe the conduct alleged, if accepted as true, was unlawful under the Animal Cruelty Law, when in fact, it is. Where a district attorney’s decision not to prosecute is based on an alleged error of law, Pennsylvania courts have held that judicial review of that legal judgment is not an intrusion upon prosecutorial discretion.
In Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993), the District Attorney of Clearfield County stated in his (former) Rule 133 (now Rule 506) Disapproval Statement, that the “allegations by the affiant cannot be proved beyond a reasonable doubt.” Jury, 636 A.2d at 169. In so doing, he applied the wrong legal standard. The standard required a private complainant “to aver evidence sufficient to mount a prima facie case.” Id. In reviewing the issue, the Superior Court initially noted that it was required to review the district attorney’s exercise of a legal judgment, and noted that “such a review of that legal judgment is not an intrusion upon prosecutorial discretion.” Id. (Emphasis added).
In Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989), a plurality decision, our Supreme Court distinguished between a prosecutor’s disapproval of a private complaint for reasons of policy and a disapproval based on a legal evaluation of the sufficiency of the complaint. The district attorney in Benz had disapproved a private complaint filed by a victim’s mother because it failed to make out a prima facie case. The trial court reviewed that decision and affirmed the disapproval. On appeal, the Superior Court reversed after concluding that the evidence, if believed, did establish a prima facie case.
Our Supreme Court affirmed and explained that because the district attorney’s decision not to prosecute was based on a legal evaluation of the merits of the case, the courts were authorized to determine the propriety of that decision. Benz, 523 Pa. at 208, 565 A.2d at 767. The Supreme Court held that a decision not to prosecute was within the purview of judicial review where the decision was based on legal determination that there was insufficient evidence to establish a prima facie case.
Although these cases involved “private” complaints (as opposed to complaints filed by law enforcement officials) issued under Rule 506 of the Pennsylvania Rules of Criminal Procedure1 (and its predeces*279sors), they recognize a distinction exists between the legitimate exercise of prosecu-torial discretion and dismissal of a case purely on legal grounds. One is afforded deference, the other is not.2
Here, District Attorney Adams stated very clearly the reason why he believed he was legally unable to prosecute when he stated: “I am bound by the law” “pigeon shoots do not constitute a violation of 5511(c) Cruelty to Animals.” This was legally incorrect because Pennsylvania courts have only held that live pigeon shoots are not a per se violation of the Animal Cruelty Law. The mishandling of wounded and injured pigeons at a live pigeon shoot is criminally actionable. Mohler v. Labor Day Committee, Inc., 443 Pa.Super. 651, 663 A.2d 162 (1995).3
While much of the majority’s opinion is focused on the inviolability of “prosecutorial discretion” District Attorney Adams’ “prosecutorial discretion” was not at issue.
“Discretion” is defined as “a public official’s power or right to act in certain circumstances according to personal judgment and conscience.” Black’s Law Dictionary, 478 (7th ed.1999). In deciding whether to prosecute, a prosecutor typically weighs several factors: 1) the sufficiency of the evidence; 2) the suspect’s background; 3) any perceived costs and benefits stemming from a conviction; 4) witness difficulties; and 5) community attitudes regarding the suspect and the nature of the offense. Frank R. Miller et al., Prosecution and Adjudication 661-62 (5th ed., Foundation Press 2000).
Here, District Attorney Adams did not exercise his discretion in the sense that he decided, based on his personal judgment and conscience, not to pursue the charges. Rather, he decided not to pursue charges based on his belief that he could not legally prosecute. He ordered the District Justice to “withdraw” the Citations on this basis alone. As he explained, he was “bound to follow the law.” The problem was — his version of the law was incorrect.
*280If the district attorney makes a mistake of law, then our courts have and should continue to review that legal judgment. It is not “an intrusion on prosecutorial discretion.”
This controversy is no different from Commonwealth v. Jury where the Superi- or Court “reviewed” the district attorney’s erroneous legal decision not to prosecute because it was based on the wrong legal “reasonable doubt” standard; or, Commonwealth v. Benz where the Superior Court “reviewed” a district attorney’s dismissal of a criminal complaint based on the erroneous legal conclusion that the aver-ments in a complaint did not state a prima fade case of homicide. In both these cases, the district attorney’s refusal to prosecute was based on an error of law. In both cases, the decision was reviewable by our courts. The district attorney’s decisions in those cases, because they involved questions of law, not prosecutorial discretion, were subject to the court’s review.
The majority has failed to recognize this judicially-recognized distinction between a decision based on a district attorney’s “legal decision” and one based on his “exercise of prosecutorial discretion.” The majority appears to consider District Attorney Adams’ legal error and his pros-ecutorial discretion as one in the same. In my view, this is where the majority errs. District Attorney Adams decided not to prosecute based on a legal error. Therefore, his “prosecutorial discretion” was never actually exercised so there was nothing to which the majority owes its unyielding deference.
The law is clear, mandamus is appropriate whenever there is a mistaken view of the law, and there is no actual exercise of discretion. In Tanenbaum v. D’Ascenzo, 356 Pa. 260, 263, 51 A.2d 757, 758 (1947), our Supreme Court explained that if the a public official’s refusal to act is based on a misinterpretation of the law, courts may conduct a review. Tanenbaum established that in such a case, a refusal to exercise discretion may be addressed in a mandamus action.
In Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766 (Pa.Cmwlth.1997), this Court explained that “mandamus is an appropriate avenue to compel a governmental body to perform a discretionary act, where its duty to perform that act is mandated by the law, and the body has refused to perform the act based upon an erroneous interpretation of the law.” Weaver, 688 A.2d at 776 (emphasis added).
In Weaver, Ronald Weaver (Weaver) filed an action in mandamus against the Board of Probation and Parole to compel his release on parole. He alleged that the Board erroneously denied him parole because he had refused to participate in a Sex Offenders Program. Weaver argued that the Board’s requirement that he participate in the rape treatment program violated his Fifth Amendment right against self-incrimination because it would require him to admit he committed the crime.
Although this Court did not compel the Board to grant parole to Weaver (this was for the Board to determine in an exercise of its discretion), this Court did note that the only relief Weaver might have obtained through mandamus was “for the proper procedures to be followed or the proper law to be applied by the Board in ruling on his application for parole.” Weaver, 688 A.2d at 777 (emphasis added). This Court explained that in order for mandamus to issue on that basis, Weaver had to establish that the Board’s “refusal to grant parole was, as a matter of law, based upon an erroneous conclusion that it had the discretion to deny parole for the reason given.” Id.
*281Applying that same rationale, I believe District Attorney Adams failed to exercise his discretion based on an error of law. He did not believe the alleged conduct was unlawful under the Animal Cruelty Law, when if proven, it was. In his view, he was not legally authorized to prosecute; therefore, he never exercised his discretion whether to prosecute based on the substance of the Citations. This is not an exercise of discretion. This was a failure to exercise discretion based on a mistake of law.
I believe that while a district attorney’s “decision to prosecute” is and must be discretionary, this ideology is based on the basic underlying premise that it pass legal muster. If a district attorney is wrong on the law, and refuses to prosecute a summary offense because he erroneously believes he is legally precluded from pursuing charges, mandamus may lie to compel him to view the case in the correct context and exercise his discretion based on the correct application of the law.
In sum, I believe that a district attorney has a general and widely recognized power to conduct criminal litigation and prosecution on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case, so long as the discretion is legitimately exercised and the decision is not made based on a mistake of law or contrary to statute.
I would reverse and remand the matter to the common pleas court to direct the district attorney to apply the correct law in determining whether to prosecute Officer Seeton’s citations.
Judge LEADBETTER and Judge McCULLOUGH join in this dissent.. Pa. R.Crim. P. 506, which was, at different times, previously numbered Rules 105, 133, and 106, authorizes the filing of "private *279criminal complaints," i.e., not issued by a law enforcement official. Private criminal complaints must be submitted to the district attorney for approval or disapproval. The district attorney may, in his discretion, disapprove the complaint and shall state the reasons for his disapproval on the complaint form. Thereafter, the affiant may petition the court of common pleas to review of the decision. The standard of review depends on whether the district attorney disapproved the private complaint based solely on legal conclusions, in which case the trial court will review to determine whether an error of law occurred. If the district attorney disapproved for policy considerations, i.e., prosecutorial discretion, then the court’s standard is abuse of discretion. In Re Wilson, 897 A.2d 199 (Pa.Super.2005).
. In Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968), our Supreme Court refuted the district attorney’s contention that his office possessed the exclusive authority to decide whether charges should be brought in every case:
A District Attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case, [citations omitted]. But this broad general power of a District Attorney is subject to the right and power of a Court (a) to provide generally for the orderly administration of criminal justice, including the right and power to supervise all trial and all Court proceedings, and (b) to protect all of a defendant’s rights to a fair trial and due process under the Constitution of the United States and the Constitution of Pennsylvania.
DiPasquale, 431 Pa. at 540-41, 246 A.2d at 432 (emphasis added).
. Mohler involved the notorious "Fred Coleman Memorial Pigeon Shoot” which was held annually in Hegins, Pennsylvania. At that event, over 6,000 pigeons were released-to be shot by participants. It was estimated that of the birds released, 2,000 were wounded.