J-S68034-18

                                2018 PA Super 326

 IN RE: APPEAL OF DISTRICT                :   IN THE SUPERIOR COURT OF
 ATTORNEY'S DENIAL OF PRIVATE             :        PENNSYLVANIA
 CRIMINAL COMPLAINT OF CHARYN             :
 HAMELLY AGAINST DEFENDANT                :
 CHERRY LYNNE POTEET                      :
                                          :
                                          :
 APPEAL OF: CHARYN HAMELLY                :
                                          :   No. 631 WDA 2018
                                          :
                                          :

              Appeal from the Order Entered March 29, 2018
    In the Court of Common Pleas of Mercer County Criminal Division at
                     No(s): CP-43-MD-0000012-2018


BEFORE:    SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                     FILED NOVEMBER 30, 2018

      Appellant Charyn Hamelly appeals from the trial court’s order denying

her petition for review of the Commonwealth’s disapproval of her private

criminal complaint against Cherry Lynne Poteet, Esquire.        After a careful

review, we affirm.

      The trial court has adequately set forth the relevant facts and procedural

history, in part, as follows:

             [Appellant] filed private criminal complaints against her
      daughter, Anna Santangelo, her daughter’s husband, Michael
      Santangelo, and the couple’s attorney, [Attorney] Poteet, on
      November 13, 2017. The complaints allege that [Mr. and Mrs.
      Santangelo and Attorney Poteet] conspired to disclose
      statements, made by [Appellant] and recorded without her
      consent, in violation of the Wiretapping and Electronic
      Surveillance Control Act (“Wiretap Act”), 18 Pa.C.S.A. §§ 5701-
      5782. Mr. and Mrs. Santangelo disclosed the recordings to the
      Pennsylvania State Police on July 11, 2016, and the State Police
      filed criminal complaints against [Appellant] and her husband,

____________________________________
* Former Justice specially assigned to the Superior Court.
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     Michael Hamelly. Mr. and Mrs. Santangelo subsequently filed a
     civil action, with the assistance of Attorney Poteet, against
     [Appellant] and Mr. Hamelly in the Civil Division of [the trial]
     court[.] The civil complaint avers statements made by [Appellant]
     during the recorded conversations.
            The private criminal complaints address two recordings: the
     first taken by Mrs. Santangelo at [Appellant’s] home in Mercer,
     Pennsylvania, on July 7, 2016, and the second taken by Mr. and
     Mrs. Santangelo at their home in Boardman, Ohio, on July 10,
     2016….[T]he alleged substance of the conversations are apparent
     from the civil complaint, submitted by [Appellant] as an exhibit to
     her [petitions for review]. Mr. and Mrs. Santangelo aver that Mrs.
     Santangelo was sexually abused by Mr. Hamelly as a teenager.
     They further allege that [Appellant] took no action to stop this
     abuse despite having knowledge of the abuse. The recordings
     allegedly contain [Appellant] and Mr. Hamelly’s admissions to the
     conduct averred in the complaint.
            After reviewing [Appellant’s] private criminal complaints,
     First Assistant District Attorney P. Brian Farrone, Esq., sent
     [Appellant] a letter stating that her complaints had been
     disapproved by the District Attorney’s Office[.] This letter
     contained no explanation for the disapproval. [Appellant then filed
     petitions for review with the trial court pursuant to Pa.R.Crim.P.
     506.] [The trial] court ordered the Commonwealth to file a
     response to the [p]etitions that identified the reasons for which
     [Appellant’s] complaints were disapproved, pursuant to
     Pa.R.Crim.P. 506(B)(2). With regard to Mrs. Santangelo, ADA
     Farrone stated:
                 The Office of the District Attorney of Mercer
           County has determined that it is not in the best
           interest of justice to prosecute individuals for crimes,
           which are related to the crime of which they are a
           victim, unless the alleged crime is determined to be
           more serious in nature or consequence than the crime
           of which they are the victim.
     [ADA Farrone’s] Resp. at ¶ 10. With regard to Mr. Santangelo and
     Attorney Poteet, ADA Farrone identified a lack of facts sufficient
     to establish probable cause to prosecute [them]. [Specifically, as
     to Attorney Poteet, ADA Farrone indicated Appellant’s complaint
     alleged insufficient facts to establish probable cause to believe
     that Attorney Poteet had committed an offense under 18 Pa.C.S.A.
     § 5703 or an associated inchoate offense.]


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J-S68034-18



Trial Court Opinion, filed 3/29/18, at 2-3 (citations to record omitted).

       By order entered on March 29, 2018, the trial court affirmed ADA

Farrone’s disapproval of the private criminal complaints as to Mr. and Mrs.

Santangelo, as well as Attorney Poteet, and denied Appellant’s petition for

review. Thereafter, Appellant filed a timely notice of appeal solely from the

trial court’s order pertaining to Attorney Poteet.1 All Pa.R.A.P. 1925

requirements have been met.

       On appeal, Appellant claims the trial court erred in affirming ADA

Farrone’s disapproval of the private criminal complaint as to Attorney Poteet.

Specifically, Appellant contends her complaint presents a prima facie case that

Attorney Poteet violated 18 Pa.C.S.A. § 5703 and/or 18 Pa.C.S.A. § 903.

       Appellate examination of a trial court’s review of a district attorney’s

decision to disapprove 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.


____________________________________________


1 Appellant’s petition for review as to Attorney Poteet was docketed in the trial
court at 12 M.D. 2018; her petition for review as to Mrs. Santangelo was
docketed at 13 M.D. 2018; and her petition for review as to Mr. Santangelo
was docketed at 14 M.D. 2018. In her notice of appeal, Appellant listed solely
trial court docket number 12 M.D. 2018, and her appellate issues are limited
to the trial court affirming ADA Farrone’s disapproval of the private criminal
complaint as to Attorney Poteet.         Thus, we shall confine our analysis
accordingly.

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J-S68034-18


                                       ***
      [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) (quoting In re Private

Criminal Complaint of Wilson, 879 A.2d 199, 214–15 (Pa.Super. 2005) (en

banc) (internal citations omitted)).

      “A private criminal complaint must at the outset set forth a prima facie

case of criminal conduct.” In re Ullman, 995 A.2d at 1213. Nevertheless,

“a well-crafted private criminal complaint cannot be the end of the inquiry for

the prosecutor.” Id. (quoting In re Private Criminal Complaint of Adams,

764 A.2d 577, 580 (Pa.Super. 2000)). The district attorney must investigate

the allegations of a properly drafted complaint to permit a proper decision on

whether to approve or disapprove the complaint. In re Ullman, 995 A.2d at

1213. “[S]uch investigation is not necessary where the allegations of criminal

conduct in the complaint are unsupported by factual averments.” Id. (quoting

Commonwealth v. Muroski, 506 A.2d 1312, 1317 (Pa.Super. 1986) (en

banc)). Both the district attorney and the trial court have a responsibility to

prevent the misuse of judicial and prosecutorial resources in the pursuit of

futile prosecutions. In re Ullman, 995 A.2d at 1213.

            [Moreover,] even if the facts recited in the complaint make
      out a prima facie case, the district attorney cannot blindly bring

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J-S68034-18


      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) (quotation omitted).

      Here, Appellant averred in her private criminal complaint that Attorney

Poteet violated 18 Pa.C.S.A. § 5703, which provides the following:

      § 5703. Interception, disclosure or use of wire, electronic
      or oral communications
      Except as otherwise provided in this chapter, a person is guilty of
      a felony of the third degree if he:
      (1) intentionally intercepts, endeavors to intercept, or procures
      any other person to intercept or endeavor to intercept any wire,
      electronic or oral communication;
      (2) intentionally discloses or endeavors to disclose to any other
      person the contents of any wire, electronic or oral communication,
      or evidence derived therefrom, knowing or having reason to know
      that the information was obtained through the interception of a
      wire, electronic or oral communication; or
      (3) intentionally uses or endeavors to use the contents of any
      wire, electronic or oral communication, or evidence derived
      therefrom, knowing or having reason to know, that the
      information was obtained through the interception of a wire,
      electronic or oral communication.

18 Pa.C.S.A. § 5703 (bold in original).

      Appellant also averred in her private criminal complaint that Attorney

Poteet violated 18 Pa.C.S.A. § 903, which provides, in relevant part, the

following:

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J-S68034-18


      § 903 Criminal conspiracy
      (a) Definition of conspiracy.--A person is guilty of conspiracy
      with another person or persons to commit a crime if with the intent
      of promoting or facilitating its 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) 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.A. § 903 (bold in original).

      Specifically, Appellant averred that Attorney Poteet committed a crime

under Section 5703 and/or Section 903 by (1) advising or conspiring with Mrs.

Santangelo to record conversations Mrs. Santangelo had with Appellant

without Appellant’s knowledge and (2) disclosing the content of these

conversations in a complaint filed in a civil action against Appellant.

      In the case sub judice, ADA Farrone disapproved Appellant’s private

criminal complaint as to Attorney Poteet on the basis there was insufficient

probable cause to support Appellant’s averments. This constituted a legal

conclusion, for which our standard of review is de novo and our scope of review

is plenary.   See Muroski, 506 A.2d at 1319 (“When a district attorney

receives a private criminal complaint, the issue of whether the complaint

states probable cause is a pure issue of law[.]”). See also In re Ullman,

supra (setting forth our standard and scope of review).

      As it relates to Appellant’s averment that Attorney Poteet advised Mrs.

Santangelo to record the conversations, we conclude the trial court did not err


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J-S68034-18


in finding there was insufficient probable cause or factual evidence supporting

Appellant’s assertion. For instance, in the civil deposition testimony given by

Mrs. Santangelo,2 which Appellant attached to her petition for review, Mrs.

Santangelo testified she decided on her own, and without suggestion from

anyone else, to record the conversations with Appellant.        Exhibit I, Mrs.

Santangelo’s deposition, 1/30/17, at 71. Further, she testified that, prior to

recording the conversations, she had not “consulted with an attorney” or

“talked to any lawyers[.]” Id. at 80, 86.

       Moreover, ADA Farrone testified as follows at the hearing on Appellant’s

petition for review:

       Q: Did you also review the complaint against—the attempted
       complaint against [Attorney] Poteet[?]
       A: I did.
       Q: Did you deny th[at] complaint[] as well?
       A: I did.
       Q: What was the basis for denying th[e] complaint?
       A:…It was not a policy consideration. It was basically that after
       review of the facts alleged and some of the information alleged in
       the petition was in direct conflict with the attached deposition. I
       just did not believe there was sufficient evidence to support
       probable cause of criminal misdoing by [Attorney Poteet].

N.T., 2/26/18, at 16.




____________________________________________


2 Mrs. Santangelo gave the deposition in the civil action, which she filed
against Appellant and Mr. Hamelly.


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J-S68034-18


      Thus, applying our standard of review, we hold the trial court did not err

in concluding there was insufficient probable cause as it relates to Appellant’s

assertion that Attorney Poteet advised or conspired with Mrs. Santangelo to

record the subject conversations. See In re Ullman, supra.

      Moreover, we conclude the trial court did not err as it relates to

Appellant’s averment that Attorney Poteet violated or conspired to violate

Section 5703 by disclosing the contents of the recorded conversations in a

civil complaint, which was filed by Mrs. Santangelo against Appellant.

Generally, the Wiretap Act “prohibits the interception, disclosure, or use of

any wire, electronic or oral communication.” Commonwealth v. Deck, 954

A.2d 603, 607 (Pa.Super. 2008) (citing 18 Pa.C.S.A. § 5703). However, as

the trial court indicated, in 18 Pa.C.S.A. § 5704, the Wiretap Act provides for

exceptions to Section 5703’s prohibitions and allows for the interception of a

wire, electronic or oral communication in designated circumstances. Deck,

954 A.2d at 607.

      Pertinent to this case, Subsection 5704(17) provides an exception for

victims to intercept communications when they have reasonable suspicion that

the intercepted party is committing, about to commit, or has committed a

crime of violence, and there is reason to believe that evidence of the crime of

violence may be obtained from the interception. 18 Pa.C.S.A. § 5704(17).

Further, the term “crime of violence” includes various sexual offenses as well




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J-S68034-18


as conspiracy to commit such offenses. 18 Pa.C.S.A. § 5702. Accordingly, as

the trial court reasoned:

             [The court] finds no probable cause exists to believe that
       Mrs. Santangelo did not have reasonable suspicion that both
       [Appellant] and Mr. Hammelly had committed crimes of violence
       against her, or conspired to do so, and that evidence of such
       crimes would likely be obtained from the recording of these
       conversations.    Therefore, neither she nor her alleged co-
       conspirator,…Attorney Poteet, committed any violation of the
       Wiretap Act by disclosing these recordings. Accordingly, the
       Commonwealth correctly determined that no probable cause
       existed to prosecute these private criminal complaints.

Trial Court Opinion, filed 3/29/18, at 6-7 (footnote omitted).

       We conclude the trial court did not err, and, thus, we affirm.3 See In

re Ullman, supra.

       For all of the foregoing reasons, we affirm the trial court’s denial of

Appellant’s petition for review of the Commonwealth’s disapproval of her

private criminal complaint as to Attorney Poteet.

       Affirmed.




____________________________________________


3 We note ADA Farrone offered alternate legal arguments regarding the
application of the Wiretap Act, including the argument that the Wiretap Act is
not applicable to communications intercepted in Ohio, as was the case with
the July 10, 2016, recording. However, in light of our discussion supra, we
need not address ADA Farrone’s alternate arguments.

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J-S68034-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




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