J-S49023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ARTHUR BOMAR                                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

MARJORIE J. FOX, DISTRICT ATTORNEY,
GREENE COUNTY

                            Appellee                  No. 1724 WDA 2016


               Appeal from the Order Dated September 27, 2016
                In the Court of Common Pleas of Greene County
              Criminal Division at No(s): CP-30-MD-0000054-2016

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                         FILED DECEMBER 12, 2017

        Appellant Arthur Bomar appeals pro se from the order by the Court of

Common Pleas of Greene County that denied his petition for review of a

private criminal complaint that was disapproved by the Greene County

District Attorney’s Office. We affirm.

        The trial court summarized the relevant facts as follows:

        [Appellant] alleged that on Friday, February 12, 2016,
        [Correctional Officer (“CO”)] Karfel[1] used [a] racial [epithet]
        and threats towards him. Seven hours later, several other SCI
        employees came to [Appellant]’s cell to inform him that CO
        Karfel had filed a Misconduct Report against him. [Appellant]
        stated that this Report was false and used for retaliation due to a
        separate Private Criminal Complaint [Appellant] filed, alleging
        allegations of sexual harassment. [Appellant] alleged that his
        rights had been violated because of the retaliation and threats
        that amounted to official oppression and ethnic intimidation.
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    CO Karfel’s first name does not appear in the record.
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Order, 12/14/16, at 2 n.1.

     Appellant   submitted    his       Private    Criminal   Complaint   later   on

February 15, 2016.     The trial court provided the following subsequent

procedural history:

     On March 29, 2016, the District Attorney’s Office, specifically by
     letter signed by Chief County Detective David Lloyd Jr., of
     Greene County, disapproved the Complaint indicating that the
     “office is exercising its discretion in disapproving your
     complaint.” An appeal from the denial was filed on April 6,
     2016.

     On May 5, 2016, after review of the case and the applicable
     rules, th[e trial c]ourt [d]irected the Commonwealth to advise
     th[e trial c]ourt as to the reason(s) for the disapproval.

     The Commonwealth’s response to th[e trial c]ourt provided the
     investigatory results of [Appellant]’s Complaint and stated that
     the decision to disapprove his private criminal complaint [was]
     due to “lack of evidence . . . lack of prosecutorial merit.”

                                    *     *    *

     The Commonwealth acknowledged that [Appellant] provided
     testimony from an inmate John Koeher, however the
     Commonwealth did not consider Mr. Koeher a reliable witness.

                                    *     *    *

     Th[e trial c]ourt held an evidentiary hearing on September 26,
     2016, and after testimony and argument determined that the
     District Attorney did not abuse her discretion in denying
     [Appellant]’s Private Criminal Complaint.3
        3
          [Appellant] asserts that he was not able to call witnesses at
        his evidentiary hearing. However, the [trial c]ourt does not
        recall denying such a request, but in any event believes that
        the [trial c]ourt did not abuse its discretion in denying the
        relief requested.

Id. at 8-10 (one footnote and citations to the record omitted).

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        In an order following the hearing, the trial court stated its decision as

follows:

        [T]he Court having now heard the testimony of [Appellant] and
        the argument of the District Attorney through Andrew Lock, the
        Court determines as factual that the District Attorney did not
        abuse her discretion in determining that the private criminal
        complaint at the above number and term should be dismissed,
        the Court is convinced by the argument of Mr. Lock that they
        had good cause to believe that Mr. Koehler would not be a
        reliable witness and that the Court does not believe it’s an abuse
        of discretion in determining that Mr. Koehler in his “selective
        hearing” makes him unreliable, also the Court believes that the
        District Attorney looked at the alleged misconduct report from
        the same date and time, based on these factors, the Court
        believes that [Appellant] has failed to meet the burden to show
        that they have abused their discretion.

Order, 9/27/16, at 1-2.2

        On October 17, 2016, Appellant appealed, and he now raises the

following issues, which we repeat verbatim:

        1.    The    [trial  c]ourt    improperly,   erroneously,   and
        unconstitutionally denied claims presented by Petitioner in the
        evidentiary hearing proceeding, including specifically.

        2.     The [trial c]ourt committed an error of law and/or abused
        its discretion or violated Petitioner’s constitutional rights to due
        process when it denied him the ability to call witnesses to
        present testimony at his hearing.

        3.     The [trial c]ourt committed an error of law and/or abused
        its discretion when it determined that there was no averment of
        bad faith to overcome the alleged policy-based decision not to
        prosecute, Manager Stephen Longstreth,[3] and if so, whether a
        gross abuse of discretion had occurred.
____________________________________________
2
    The order is dated September 26, 2016.
3
  Appellant currently has pending in this Court two appeals from orders by
the Green County Court of Common Pleas denying petitions by Appellant for
review of decisions by the District Attorney not to prosecute. This appeal
(Footnote Continued Next Page)
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J-S49023-17



      4.     The [trial c]ourt committed an error of law and/or abused
      its discretion by forcing the Petitioner to prove his case to the
      district attorney beyond a reasonable doubt, where in fact, the
      complaint need only aver evidence sufficient to mount a prim[a]
      facie case.

Appellant’s Brief at 3.4

      Our standard of review follows:



                       _______________________
(Footnote Continued)
(No. 1724 WDA 2016) involves his complaint against Officer Karfel; the
other appeal (No. 1725 WDA 2016) involves Appellant’s complaint against
Capital Case Manager Stephen Longstreth. Appellant’s briefs in the two
cases are substantially similar, and it appears that Appellant may have
mistakenly copied the Statement of Questions Involved that he placed in his
brief in this appeal from his brief in the other appeal, which references Mr.
Longstreth rather than Officer Karfel. This appeal has nothing to do with Mr.
Longstreth. The argument in Appellant’s brief on his third issue in this case
references Officer Karfel, not Mr. Longstreth. See Appellant’s Br. at 10.
Typically, “[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.” Pa.R.A.P.
2116(a). As Appellant’s third question does not state any issue regarding
the trial court’s affirmance of the District Attorney’s decision not to
prosecute Officer Karfel, we could find that Appellant waived any claim
regarding Officer Karfel with respect to this third issue. However, because
the remainder of Appellant’s brief clearly suggests that the reference to Mr.
Longstreth in this third question is a typographical error, we decline to do so
and instead will interpret Appellant’s third question as though it named
Officer Karfel instead of Mr. Longstreth.
4
  The District Attorney did not respond individually to each issue raised by
Appellant but instead made one consolidated argument.             The District
Attorney contends that the trial court “properly affirmed the denial of the
Appellant’s private criminal complaint.” District Attorney’s Brief at 4. The
District Attorney also maintains that Appellant “has failed to establish that
the trial court acted improperly or abused its discretion.” Id. The District
Attorney insists that Appellant’s private criminal complaint was “rejected,”
“because an evaluation of the case determined that it had a low chance of
successful prosecution.” Id. (citing N.T., 9/26/16, at 4). The District
Attorney concludes that Appellant “has failed to establish that the trial court
acted improperly or abused its discretion.” Id. at 6.

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      Appellate examination of a trial court’s review of the District
      Attorney’s decision to disapprove a private criminal complaint
      implicates the following:

         [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.

In re Miles, 170 A.3d 530, 534 (Pa. Super. 2017) (alteration in original and

citations omitted). But if the district attorney disapproves a private criminal

complaint based on policy considerations —

         the trial court accords deference to the decision and will
         not interfere with it in the absence of bad faith, fraud or
         unconstitutionality.   In the event the district attorney
         offers a hybrid of legal and policy reasons for disapproval,
         deference to the district attorney’s decision, rather than de
         novo review[,] is the appropriate standard....

                                  *    *    *

      Although a district attorney’s legal evaluation of the evidence
      standing alone is subject to de novo review, there is no simple
      formula for the trial court to determine what constitutes an
      abuse of prosecutorial discretion.

In re Private Complaint of Wilson, 879 A.2d 199, 212 (Pa. Super. 2005)

(en banc) (alteration in original and citations omitted).    “A determination

that the case lacks ‘prosecutorial merit’” is an example of a policy

consideration. Commonwealth v. Metzker, 658 A.2d 800, 801 (Pa. Super.

1995). “Courts will not disturb that decision unless there is a gross abuse of

discretion.” Id.



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      In support of his first issue, Appellant contends that after “the affiant

has Petitioned the trial [c]ourt to grant independent review, the trial [c]ourt

must conduct a de nov[o] review of the complaint and determine whether its

evidence satisfies a prima facie cause of action.”   Appellant’s Brief at 7-8,

(citing In re Private Complaint of Adams, 764 A.2d 577 (Pa. Super.

2000)). We disagree.

      The trial court observed that the district attorney’s decision not to

prosecute was based on “lack of evidence” and “lack of prosecutorial merit.”

Order, 12/14/16, at 9 (quoting Commonwealth’s Mem. in Resp. to Ct. Order,

5/11/16). In this connection, we stated the following in Miles:

      A private criminal complaint must at the outset set forth a prima
      facie case of criminal conduct.

                                  *    *    *

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

170 A.3d at 535 (alteration in original and citations omitted). The trial court

concluded that “the rationale behind the prosecutor’s decision is one of a

hybrid of legal and policy reasons” and that the appropriate standard of

review therefore was “deference to the District Attorney’s decision, rather

than de novo review.”     Order, 12/14/16, at 9.     We agree that a denial

because of “lack of evidence” and “lack of prosecutorial merit” is based on

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J-S49023-17


both a “legal evaluation of the evidence” and “policy considerations” under

Wilson, 879 A.2d at 212. Therefore, the trial court correctly held that this

“hybrid of legal and policy reasons for disapproval” should be reviewed

under a deferential, rather than de novo standard. Thus, Appellant’s claim

that the trial court was required to conduct a de novo review of the

complaint is meritless.

      Appellant’s next claim is that the trial court “committed an error of law

and/or abused its discretion or violated [Appellant]’s constitutional rights to

due process when it denied him the ability to call witnesses to present

testimony at his hearing.” Appellant’s Brief at 8. Relying on our decision in

Metzker, he argues:

      [W]hen the district attorney refuses to file the criminal complaint
      and the matter is appealed, the court is placed on the position of
      addressing the decision of the district attorney.         It cannot
      properly and thoroughly do so as if it only focuses on the four
      corners of a complaint to the exclusion of the district attorney’s
      investigation of other material she considered.

Appellant’s Brief at 8.

      The trial court stated that it “does not recall denying” a request by

Appellant to call witnesses. Order, 12/14/16, at 10 n.3. Our review of the

certified record discloses no evidence that the trial court denied such a

request. The trial court allowed Appellant to testify and invited him to mail

other evidence to the court.

      Appellant complains that the District Attorney rejected evidence that a

neighboring inmate, John Koeher, gave at a disciplinary hearing, where he


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J-S49023-17


stated that Officer Karfel used a racial slur and threatened retaliation against

Appellant. Appellant claims he had no opportunity to cross-examine at that

hearing, and objects to the District Attorney’s assertion that Mr. Koeher’s

testimony was unreliable because of what she called his “selective hearing.”

The record shows, however, that the trial court allowed Appellant to address

that issue and to explain why Mr. Koeher was reliable. N.T., 9/26/14, at 11.

The record contains no indication that Appellant sought to call Mr. Koeher as

a witness at the hearing before the trial court.

      To the extent that Appellant’s second issue could be construed as

alleging that the trial court did not consider the district attorney’s

investigation, as suggested by Appellant’s citation to Metzker, 658 A.2d

800, such a claim is likewise contradicted by the record. In its order dated

December 14, 2016, the trial court referred to the “investigatory results of

[Appellant]’s Complaint,” noting that the Commonwealth had “stated that

the decision to disapprove [Appellant]’s private criminal complaint [was] due

to ‘lack of evidence [and] lack of prosecutorial merit.’” Order, 12/14/16, at

9 (quoting Commonwealth’s Mem. in Resp. to Ct. Order, 5/11/16). Because

the trial court did consider “the district attorney’s investigation of other

material,” Appellant’s Brief at 8, Appellant is not due relief.

      Next, Appellant contends that the trial court “committed an error of

law and/or abused its discretion when it determined that there was no

averment of bad faith to overcome the alleged policy-based decision not to

prosecute [Officer Karfel] and if so, whether a gross abuse of discretion had

                                      -8-
J-S49023-17


occurred.” Appellant’s Brief at 10. Appellant states, “It appears that a De

Novo hearing is needed if the disapproval is based on legal reasons, and the

[trial c]ourt is to apply an ‘abuse of discretion standard’ when the decision is

a discretionary policy consideration.” Id.

          Appellant appears to be arguing that the trial court should have made

specific findings that the district attorney’s disapproval was made “in the

absence of bad faith, fraud or unconstitutionality.”         Wilson, 879 A.2d at

212. Nevertheless, Appellant does not allege what acts of “bad faith, fraud

or unconstitutionality” the trial court should have found or on what basis it

should have made such a finding; he merely makes a bald accusation. By

failing to develop his argument, Appellant has not established entitlement to

relief.     See Zator v. Coachi, 939 A.2d 349, 351 (Pa. Super. 2007)

(appellant’s undeveloped argument “failed to carry his burden of persuasion

on this point”), appeal denied, 961 A.2d 859 (Pa. 2008) & 961 A.2d 860

(Pa. 2008); Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super.

1996) (same).

          Appellant’s final issue is that the trial court “committed an error of law

and/or abused its discretion by forcing [Appellant] to prove his case to the

district attorney beyond a reasonable doubt, where in fact, the complaint

need only aver evidence sufficient to mount a prima[] facie case.”

Appellant’s Brief at 10. Upon a thorough review of the record, we find no

support for Appellant’s claim that the trial court required him to prove his

case beyond a reasonable doubt. This claim therefore is meritless.

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      Appellant also states:

      In the event the district attorney offers a hybrid of legal and
      policy reasons for disapproval, deference to the district
      attorney’s decision, rather than de novo review, is the
      appropriate standard to be employed.

      Further[, “]if the prosecutor’s decision was based upon a policy
      determination that it would not be in the best interest of the
      Commonwealth to prosecute, the trial Court Must defer to the
      prosecutor’s discretion absent a gross abuse of discretion”. In
      re Private Complaint of Owens Against Coker, [810 A.2d
      172,] 175 [(Pa. Super. 2002), appeal denied, 821 A.2d 587
      (Pa. 2003) (]citing Michaels v. Barrasse, [681 A.2d 1362,]
      1364-1365 [(Pa. Super. 1996)].

      Lastly, See Commonwealth v. Jury, 431 Pa.Super, 129, 636
      A.2d 164 (1993). . . . [T]he rule of Jury is that a private
      complainant’s duty is limited to presenting the district attorney
      with a prima facie case.

Appellant’s Brief at 10-11 (some formatting; emphasis in original). We fail

to see how the case law Appellant cites entitles him to relief.      Even if a

complainant has established a prima facie case in his private criminal

complaint, the district attorney is still under no obligation to bring criminal

charges:     a prima facie case does not guarantee that a prosecution must

occur. See Miles, 170 A.3d at 535.

      For all of these reasons, we conclude that the trial court did not err by

affirming the District Attorney’s disapproval of Appellant’s private criminal

complaint.

      Order affirmed.

      Judge Dubow joins the memorandum.

      Justice Fitzgerald concurs in the result.


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J-S49023-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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