J-S62014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ARTHUR BOMAR,                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MARJORIE FOX, DISTRICT ATTORNEY,
GREENE COUNTY

                            Appellee                  No. 687 WDA 2015


                  Appeal from the Order Dated March 27, 2015
                in the Court of Common Pleas of Greene County
               Criminal Division at No.: CP-30-MD-0000023-2015


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 25, 2015

        Appellant, Arthur Bomar, appeals pro se from the order of March 27,

2015, affirming the District Attorney’s refusal to prosecute his private

criminal complaint. We affirm.

        Appellant is an inmate at SCI-Greene. In December 2014, Appellant

sent a private criminal complaint against four corrections officers at SCI-

Greene,1 to the Greene County District Attorney. On February 25, 2015, the

Greene County District Attorney disapproved the private criminal complaint.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  In the complaint, Appellant makes a variety of accusations including claims
of harassment, corruption, and civil rights violations against the officers.
(See Private Criminal Complaint, 12/31/14, at 1-2).
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      On March 23, 2015, Appellant filed an appeal of that decision with the

Greene County Court of Common Pleas. On March 27, 2015, the trial court

issued an order denying the appeal.      This instant, timely appeal followed.

The trial court did not direct Appellant to file a concise statement of errors

complained of on appeal.     See Pa.R.A.P. 1925(b).    On July 14, 2015, the

trial court issued an opinion adopting its March 27, 2015 order.            See

Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

           1. Did the trial court [err] in [its denial of Appellant’s]
      request for independent review of his private criminal complaint
      when [he] established a prima facie cause of action?

            2. Did the trial court commit error when it denied
      [Appellant’s] request for independent review of [his] private
      criminal complaint in that it failed to ascertain whether the
      prosecutor’s disapproval was grounded on a policy determination
      not to prosecute and, if so, whether a gross abuse of discretion
      had occurred?

            3. [Appellant] submits that it can be fairly conceived that
      the Office of the District Attorney is [somewhat] biased in
      prosecuting a state employee or a state corrections officer on the
      evidence of one (1) convicted criminal therefore, in the
      alternative, would it not be unreasonable to request that the
      Office of the State Attorney General be ordered to prosecute this
      case, if it is within the [j]urisdiction of this Court to do so?

(Appellant’s Brief, at 3) (unnecessary capitalization omitted).

      Appellant’s first two claims challenge the decision of the trial court to

deny his appeal of the District Attorney’s disapproval of his private criminal

complaint.




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            It is settled that following the receipt of a petition to
     review the Commonwealth’s decision to disapprove a private
     criminal complaint, the court must determine whether the
     Commonwealth’s rationale for disapproving the private criminal
     complaint is for purely legal reasons or if it is based solely or in
     part on policy considerations.      When the Commonwealth’s
     disapproval is based wholly on legal considerations, the court
     employs a de novo review.       Where the decision includes or is
     entirely based on policy considerations, the trial court reviews
     the Commonwealth’s determination under an abuse of discretion
     standard. . . . [W]e evaluate Appellant’s claims under an abuse
     of discretion standard.

            In conducting our examination, we are mindful that the
     private criminal complainant must show that the decision not to
     prosecute was patently discriminatory, arbitrary or pretextual,
     and therefore not in the public interest. We will not disturb the
     trial court’s ruling unless there are no reasonable grounds for the
     court’s decision, or the court relied on rules of law that were
     palpably wrong or inapplicable.

Braman v. Corbett, 19 A.3d 1151, 1157-58 (Pa. Super. 2011) (citations

and quotation marks omitted).

     Here, Appellant first argues that, because he made out a prima facie

case of malfeasance, the District Attorney’s decision to decline to prosecute

must have been on legal, rather than policy grounds, and that, therefore, he

was entitled to a de novo review by the Court of Common Pleas.              (See

Appellant’s Brief, at 7-8). However, our review of the record demonstrates

that the District Attorney denied the complaint purely on the basis of policy

considerations.   (See Appeal Re:     Private Criminal Complaint, 3/23/15,

Exhibit A, at unnumbered page 1).        Thus, the trial court appropriately

reviewed the complaint under an abuse of discretion standard. (See Order,




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J-S62014-15


3/27/15, at unnumbered pages 1-2); see also Braman, supra at 1157.

Appellant’s first issue lacks merit.

       Appellant’s second issue is convoluted and somewhat confusing.          He

appears to claim alternately that, because the District Attorney did not

explain the reasons for its policy denial, the denial must have been for lack

evidence and, therefore, he is entitled to de novo review or that the trial

court should have required that the District Attorney clarify the reasons for

its policy denial.   (See Appellant’s Brief, at 9-10).       However, Appellant

points to nothing in the record to substantiate his contention that the District

Attorney disapproved the complaint based upon a lack of evidence. Further,

Appellant mistakes the burden of proof; it was not the District Attorney’s

burden to prove that its disapproval for policy reasons was valid but

Appellant’s   burden    to   show      that   the   disapproval   “was    patently

discriminatory, arbitrary or pretextual.” Braman, supra at 1158. Appellant

did not do so below and has not done so here. (See Appellant’s Brief, at 9-

10).   Because of this, Appellant has not demonstrated that the trial court

abused its discretion in denying his appeal. Appellant’s second claim lacks

merit. See Braman, supra at 1157-58.

       In his third claim, Appellant avers that the District Attorney was biased

against him because the purported defendants are state employees; he

therefore requests that this Court refer the matter to the Pennsylvania State

Attorney General’s Office.       (See Appellant’s Brief, at 10).         However,


                                        -4-
J-S62014-15


Appellant did not raise this claim below; therefore, he waived it.    See

Pa.R.A.P. 302(a); Commonwealth v. Truong, 36 A.3d 592, 598 (Pa.

Super. 2012) (en banc), appeal denied, 57 A.3d 70 (Pa. 2012) (new legal

theories cannot be raised for first time on appeal).

      Accordingly, for the reasons discussed above, we affirm the order of

March 27, 2015.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2015




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