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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J. A25006/16


          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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