J-S45029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: PRIVATE CRIMINAL COMPLAINT                IN THE SUPERIOR COURT OF
OF ALTON D. BROWN                                      PENNSYLVANIA



APPEAL OF: ALTON D. BROWN
                                                      No. 1997 MDA 2014


              Appeal from the Order Entered on October 31, 2014
              In the Court of Common Pleas of Huntingdon County
               Criminal Division at No.: CP-31-MD-0000207-2014


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                             FILED AUGUST 21, 2015

       Alton Brown appeals, pro se the October 31, 2014, order denying his

Petition for Review of Private Criminal Complaint in the Court of Common

Pleas of Huntingdon County. We affirm.

       The trial court recited the procedural and factual history of this case as

follows:

       Sometime after November 25, 2014, Mr. Brown submitted a
       twenty-nine page private criminal complaint to the Huntingdon
       County District Attorney. In the complaint, Mr. Brown named
       numerous proposed defendants, who [the trial court]
       presume[d] [were] employees of the Department of Corrections.

       The district attorney denied Mr. Brown’s request for approval of
       the private criminal complaint, and in doing so, identified two
       reasons for the denial. First, the district attorney asserted that
       the “violations” occurred in other counties, and therefore, did not
       fall under the jurisdiction of the Huntingdon County District
       Attorney’s Office. Second, [the district attorney] opined that Mr.
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
J-S45029-15


      Brown’s claims were civil in nature and concerned the policies
      and procedures of the Department of Corrections.

      In [the trial court’s] view, the Huntingdon County District
      Attorney’s Office outlined sound policy and reasoning for
      disapproving Mr. Brown’s private criminal complaint. Therefore,
      the district attorney’s decision created a presumption that he
      acted in good faith, which absent proof to the contrary, was
      sufficient for [the trial court] to dismiss [the] appeal. In this
      regard, Mr. Brown proffered nothing that suggested that the
      district attorney’s decision was pre-textual, arbitrary or
      discriminatory.

      As far as [the trial court could understand,] the logic behind Mr.
      Brown’s epistle [is that] he is not happy with the conditions of
      his confinement. His criticisms raise issues better suited for our
      civil courts. This obvious attempt to disguise a civil action by the
      filing of a private criminal complaint is noted, and as such, the
      district attorney’s decision not to approve the filing was
      appropriate.

Trial Court Opinion (“T.C.O.”) at 1-2 (some capitalization modified; internal

citations omitted).

      The trial court considered and denied that petition in an order dated

October 31, 2014. Brown filed a timely notice of appeal on November 25,

2014. By order dated December 12, 2014, the trial court directed Brown to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b) and he timely complied. The trial court filed its opinion

pursuant to Pa.R.A.P. 1925(a) on January 21, 2015.

      Brown raises three issues for this Court’s consideration:

         1. Whether [the] trial court abused its discretion or
            committed an error of law in affirming the district
            attorney’s disapproval of the private criminal complaint?

         2. Whether the manner in which the district attorney
            disapproved the private criminal complaint constitutes

                                     -2-
J-S45029-15


            an error and hinders Brown’s appeal to the trial court
            and this Court?

         3. Whether the trial court’s refusal to require the district
            attorney to provide Brown with an official copy of the
            private complaint constitutes an error in law, and a
            demonstration       of   bad      faith,    fraud,     or
            unconstitutionality?

Brief for Brown at 1 (some capitalization modified).

      In his first issue, Brown contends that the trial court abused its

discretion or committed an error of law in affirming the district attorney’s

disapproval of the private criminal complaint.    To proceed with a private

criminal complaint, a complainant must secure the approval of an attorney

for the Commonwealth.     Pa.R.Crim.P. 506(A).    A prosecutor is required to

investigate a private criminal complaint after it is filed. In re Wilson, 879

A.2d 199, 211 (Pa. Super. 2005). In deciding whether a prima facie case

has been established, the prosecutor must consider both the content of the

complaint, and the result of the investigation of the case. Id.

      [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 or her] 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 or she]
      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 or she] concludes, after
      investigation, that the prosecution lacks a legal basis.




                                     -3-
J-S45029-15



Id. at 211-212 (citations omitted; brackets in original). If the attorney for

the Commonwealth disapproves the complaint, the district attorney must

notify the complainant of the reasons for the disapproval.        Pa.R.Crim.P.

506(B)(2).    A private criminal complainant is permitted to seek judicial

review of the denial of his or her complaint by the district attorney.

Pa.R.Crim.P. 506.

      The trial court’s standard of review is dependent upon the reasons

provided by the district attorney for the disapproval.    Commonwealth v.

Cooper, 710 A.2d 76, 80 (Pa. Super. 1998). When the district attorney’s

denial is based upon a legal evaluation of the evidence, the trial court

undertakes de novo review of the matter. Id. Where the district attorney’s

disapproval is based upon policy considerations, the trial court accords

deference to the decision and will not interfere in the absence of bad faith,

fraud, or unconstitutionality. Id. at 79, 80. In the event that 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 correct standard of review to be employed. Id.

      When seeking review in the trial court, a private criminal complainant

bears the heavy burden of proving that the district attorney abused his

discretion. In a Rule 506 petition for review:

      the private criminal complainant must demonstrate the district
      attorney’s decision amounted to bad faith, fraud or
      unconstitutionality. The complainant must do more than merely
      assert the district attorney’s decision is flawed in these regards.
      The complainant must show the facts of the case lead only to the

                                     -4-
J-S45029-15


      conclusion that the district attorney’s decision was patently
      discriminatory, arbitrary[,] or pretextual, and therefore not in
      the public interest. In the absence of such evidence, the trial
      court cannot presume to supervise the district attorney’s
      exercise of prosecutorial discretion, and should leave the district
      attorney’s decision undisturbed.

In re Wilson, 879 A.2d at 215.

      Our standard of review also depends upon the district attorney’s

rationale for the disapproval. Where the district attorney’s decision is based

solely upon legal conclusions, and the trial court’s standard of review is de

novo, “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.”          Id. at 214 (footnotes

omitted).   Where the district attorney’s decision is based upon policy

considerations or a hybrid of legal and policy considerations, and the trial

court’s standard of review is abuse of discretion, “the appellate court will

review the trial court’s decision for an abuse of discretion, in keeping with

settled principles of appellate review of discretionary matters.” Id. at 215.

      Applying the legal principles pertinent to a private criminal complaint,

Brown’s contention that the trial court abused its discretion or committed an

error of law in affirming the district attorney’s disapproval of the private

criminal complaint is without merit. In its order dated October 31, 2014, the

trial court determined that the district attorney based his disapproval of the

complaint upon purely legal grounds, and therefore, it undertook de novo

review of the district attorney’s decision. Upon reviewing Brown’s twenty-


                                      -5-
J-S45029-15



nine page criminal complaint, the trial court was satisfied that the

Huntingdon County District Attorney’s Office reached the proper legal

conclusion. However, in its opinion pursuant to Pa.R.A.P. 1925(a), the trial

court applied the hybrid approach with an abuse of discretion standard of

review. The trial court indicated that the district attorney’s disapproval was

not made in bad faith, fraudulent, or unconstitutional.

      We agree with the trial court’s subsequent determination in its

Pa.R.A.P. 1925(a) opinion that the district attorney’s decision was a hybrid

of legal and policy considerations. This is so because the district attorney’s

determination that Brown’s complaints were civil in nature is a policy

consideration.    See Commonwealth v. Cooper, 710 A.2d 76 (Pa. Super.

1998) (noting that a district attorney’s conclusion that a civil action would be

more prudent because the complainant was attempting to utilize the justice

system for private purposes is a valid policy reason.)           Additionally, the

district attorney’s decision that the “violations” that Brown claimed had

occurred    in   other   counties   than   Huntingdon    County     was    a    legal

consideration. Therefore, the district attorney’s decision to disapprove the

private    criminal   complaint   was   comprised   of   both   policy    and   legal

considerations requiring utilization of the hybrid approach. Accordingly, due

to the district attorney’s hybrid approach, the trial court’s standard of review

should have been an abuse of discretion.            In its opinion pursuant to

Pa.R.A.P. 1925(a), the trial court implicitly applied the abuse of discretion

standard and found that the district attorney did not act in bad faith,

                                        -6-
J-S45029-15



fraudulently or unconstitutionally, which is sufficient for the trial court to

uphold the district attorney’s disapproval.

      The district attorney’s disapproval in this case was based in part upon

a policy decision. Thus, in accordance with our standard of review we must

evaluate the disapproval to determine whether it was based upon bad faith,

fraud, or unconstitutionality.

      Brown brings forth two assertions of bad faith. First, he contends the

district attorney exercised bad faith because the district attorney stated that

the Huntingdon District Attorney’s Office lacked jurisdiction over the

complaints in his disapproval.     Second, Brown contends the trial court

exercised bad faith by pointing out Brown’s history of litigation. However,

Brown has waived both assertions of bad faith because Brown failed to

provide a developed legal argument. See Pa.R.A.P. 2119(a) (“the argument

shall be divided into as many parts as there are questions to be argued; and

shall have at the head of each part—indistinctive type or in type distinctively

displayed—the particular point treated therein, followed by such discussion

and citation of authorities as are deemed pertinent”); Commonwealth v.

B.D.G., 959 A.2d 362 (Pa. Super. 2008) (noting that when an appellant fails

to develop his issue in an argument and fails to cite any pertinent legal

authority, the issue is waived.)   Further, the trial court did not detect an

allegation of fraud, bad faith or unconstitutionality. Finally, our independent

review reveals none. Accordingly, we dismiss Brown’s first issue.




                                     -7-
J-S45029-15



          In his second and third issues, Brown challenges the manner in which

the district attorney disapproved his private criminal complaint. We review

those two issues together.      Rule 506(B)(2) states, “if the attorney for the

Commonwealth . . . disapproves the complaint, the attorney shall state the

reasons on the complaint form and return it to the affiant. Thereafter, the

affiant may petition the court of common pleas for review of the decision.”

Pa.R.Crim.P. 506(B)(2)      Brown submitted his private criminal complaint in

the form of a twenty-nine page front-to-back handwritten complaint. Brown

provided a limited amount of space for the district attorney to adequately set

forth the reasoning for the disapproval. Instead of handwriting a response

in the limited available space provided by Brown, the district attorney

elected to provide Brown with a typewritten version of the disapproval on a

separate form. Brown was provided with the same information that would

have been provided to him had it come in the form proscribed by Rule

506(B)(2). While the Commonwealth did not fully adhere to Rule 506(B)(2),

Brown is unpersuasively elevating form over substance. Even if we were to

rule in favor of Brown on these points, we would require the district attorney

to fill out the bottom of Brown’s twenty-nine page criminal complaint with

the same information that has already been provided to Brown.         In other

words, any remedy would place Brown exactly where he is now.           He has

suffered no harm or prejudice.      As such, he is not entitled to any form of

relief.

          Order affirmed.

                                       -8-
J-S45029-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




                          -9-
