J-S58020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: EDGAR B. MURPHY, JR.                   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

APPEAL OF: EDGAR B. MURPHY, JR.
                                                   No. 593 MDA 2015


               Appeal from the Order Entered March 2, 2015
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-MD-0000134-2015


BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                      FILED NOVEMBER 06, 2015

      Appellant, Edgar B. Murphy, appeals pro se from the order entered on

March 2, 2015 dismissing his petition for review of the Commonwealth’s

disapproval of Appellant’s private criminal complaint against three police

officers. Upon review, we affirm.

      We briefly summarize the facts and procedural history of this case as

follows.   Following trial, a jury convicted Appellant of three counts of

indecent assault, two counts of involuntary deviate sexual intercourse, and

one count of sexual assault resulting from Appellant’s sexual misconduct

with his biological adult daughter.   On November 8, 2007, the trial court

sentenced Appellant to an aggregate term of seven to 20 years of

imprisonment. This Court affirmed the judgment of sentence on December

2, 2008 and, on April 29, 2009, our Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Murphy, 965 A.2d 299

(Pa. Super. 2008), appeal denied, 970 A.2d 429 (Pa. 2009).      On July 17,



* Retired Senior Judge assigned to the Superior Court
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2009, Appellant timely filed a pro se petition under the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-9546. The court appointed counsel, who filed an

amended petition on October 5, 2009. Following a hearing, the PCRA court

denied relief. We affirmed the decision on August 22, 2011.

       On September 25, 2014, Appellant filed a private criminal complaint

against three officers involved in the underlying investigation, alleging

criminal conspiracy, unsworn falsifications to authorities, false swearing and

tampering with public records in their handling of the case.            The Dauphin

County     District    Attorney’s     Office   reviewed   Appellant’s    allegations,

determined criminal charges were unwarranted, and disapproved the private

complaint. On February 15, 2015, Appellant filed a petition for review from

the denial of his private criminal complaint with the Dauphin County Court of

Common Pleas. The trial court denied relief on March 2, 2015. This timely

appeal resulted.1

       On appeal, Appellant presents the following issue, pro se, for our

review:

          Did the trial court abuse[] [its] discretion in denying
          Appellant’s petition for review and affirming the District
          Attorney’s denial of Appellant’s private criminal complaint
          against Lt. Detective Roy, Detective Massey, and Officer
____________________________________________


1
  Appellant filed a notice of appeal on March 18, 2015. On April 14, 2015,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on April 29, 2015. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on July 6, 2015.



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          Lauver, that set forth a strong prima facie showing that
          they subjected Appellant to falsified evidence, deprivation of
          liberty, obstruction of justice, malicious prosecution,
          unreasonable seizure, false imprisonment, conspiracy, fraud
          on the court, perjured testimony, [M]iranda[2] rights
          violation, no subject matter jurisdiction, omission of
          pertinent facts, bias, and illegal search and seizure. All in
          violation of Appellant’s 4th, 5th, 6th, 14th [amendment] and
          due process rights [] to both the state and federal
          constitutions.

Appellant’s Brief at 7 (superfluous capitalization omitted).

        Appellant argues the Commonwealth erred by disapproving his private

criminal complaints against Lieutenant Detective Edlis Roy, Officer Stacey

Lauver, and Detective Elijah Massey of the Harrisburg Police Department.

Appellant    claims    that    when     investigating   the   allegations   of   sexual

misconduct against his daughter, the three aforementioned officers misled

the District Attorney into filing charges against him. Id. at 14. He further

maintains Detective Massey admitted to falsifying the affidavit of probable

cause and police reports to include statements not actually made by the

victim.     Id. at 19.     Appellant also claims Officer Lauver and Detective

Massey conspired with Lieutenant Detective Roy who was engaged in an

adulterous affair with the victim, Appellant’s biological daughter. Id. at 24.

He contends the court should have hired an independent special prosecutor

to investigate his claims. Id. Appellant avers the Commonwealth engaged




____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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in selective prosecution and grossly abused its discretion in failing to

approve his private criminal complaints. Id. at 29.

     Our standard of review 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.

        We further hold that when 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.

        The private criminal complainant has the burden to prove
        the district attorney abused his discretion, and that burden
        is a heavy one. […T]he 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 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.

        Thereafter, 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.




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In re Wilson, 879 A.2d 199, 214-215 (Pa. Super. 2005) (internal citations

and footnotes omitted).

      “An abuse of discretion is not merely an error of judgment, but if in

reaching a conclusion the law is overridden or misapplied or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice,

bias, or ill will, as shown by the evidence or the record, discretion is

abused.” Commonwealth v. Hunt, 858 A.2d 1234 (Pa. Super. 2004) (en

banc) (citation omitted).

      In     this   case,   the   trial   court   relied   upon   our   decision   in

Commonwealth v. Heckman, 928 A.2d 1077 (Pa. Super. 2000) in

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

complaint. In Heckman, Heckman filed private criminal complaints against

the presiding judge, the prosecutor, and an investigating officer and witness

at his trial for driving under the influence of alcohol.      Heckman, 928 A.2d

at 1078. Therein,

           Heckman's private criminal complaints […] point[ed] to
           alleged discrepancies between the evidence proffered at the
           trial in his criminal case and the evidence at the preliminary
           hearing; from these discrepancies he extrapolate[d] a
           conspiracy between [the District Attorney] and [the
           investigating officer] to use fabricated evidence to obtain his
           conviction. [The trial judge was] implicated because he
           failed to respond to Heckman's allegations regarding this
           conspiracy theory at sentencing.

           The trial court viewed Heckman's private criminal
           complaints as a back-door attack on his convictions, and, []
           noted that issues regarding the credibility of witnesses and
           the sufficiency of the evidence had already been decided by

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        both the jury at Heckman's trial and by this Court on direct
        appeal. As such, the trial court found that the District
        Attorney had sound policy reasons for disapproving
        Heckman's private criminal complaints. [On appeal, we
        saw] no basis for disturbing this holding as Heckman []
        failed to meet his burden to establish that the District
        Attorney's policy decision was motivated by bad faith or
        unsound reasoning.


Id. at 1079.

     Sub judice, the trial court determined:

        In this case, Appellant points to alleged discrepancies
        between witness statements made to police, facts averred
        in the [a]ffidavit of [p]robable [c]ause and trial testimony
        by Detective Massey who he contends admitted on the
        witness stand that the police reports contained false
        statements.

        Appellant has not provided a copy of the testimony wherein
        Detective Massey was to have made such a monumental
        admission [that he falsified documents] and, nevertheless,
        the District Attorney’s assessment was correct that any
        discrepancies are left to the jury when the witness’
        credibility is weighed. Further, the conviction and any
        claimed credibility determinations were already determined
        by the jury and the sufficiency of the evidence was reviewed
        and affirmed by the Superior Court.           Regarding his
        allegation that a romantic relationship between Detective
        Roy and the victim [] is evidence of a preconceived bias is
        no more than a bald allegation for which he has not
        provided a single piece of evidence in support.

        As determined by the trial court in Heckman and affirmed
        by the Superior Court upon review, the filing of Appellant’s
        private complaint was merely a ‘back-door attack on his
        convictions’ and an attempt to re-litigate issues already
        decided or to raise issues not cognizable by way of criminal
        complaint. Therefore, based upon the reasoning set forth
        above, [the trial court found] that the District Attorney’s
        discretion was exercised in a lawful, constitutional manner
        as [Appellant] failed to establish any sort of bad faith or

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         arbitrariness in the disapproval of the private criminal
         complaint.

Trial Court Opinion, 7/6/2015, at 9-10.

       After careful review, we discern no error of law or abuse of discretion

by the trial court in affirming the Commonwealth’s disapproval of Appellant’s

private criminal complaints.         The jury properly resolved discrepancies in

police documentation and testimony from the various officers at Appellant’s

trial and we affirmed Appellant’s convictions on appeal. Moreover, regarding

Appellant’s suggestion that Detective Massey admitted to falsification of the

affidavit of probable cause and subsequent police reports, Appellant baldly

references notes of testimony from his trial.       See Appellant’s Brief at 22.

However, the notes of testimony are not included in the certified record.3

Appellant failed to meet his burden to establish that the District Attorney's

decision to disapprove his private criminal complaint was motivated by bad

faith or unsound reasoning. Accordingly, we affirm.4
____________________________________________


3
  “It is appellant's responsibility to ensure that the appellate court has a
complete record for purposes of appellate review.”           Commonwealth v.
Thomas, 684 A.2d 1085, 1088 n.1 (Pa. Super. 1996). “[A]lthough this
Court is willing to construe liberally materials filed by a pro se litigant, pro se
status generally confers no special benefit upon an appellant.”
Commonwealth v. Lyons, 833 A.2d 245, 251-252 (Pa. Super. 2003).


4
  Appellant filed a pro se response to the trial court’s memorandum opinion
and a pro se application to amend that response on July 21, 2015. In his
pro se response to the trial court’s opinion, Appellant makes additional,
unrelated allegations that are not necessary for our disposition as set forth
above. In his pro se application to amend, Appellant sought to attach a trial
court order to his appellate brief. More specifically, the order at issue
(Footnote Continued Next Page)


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      Order affirmed. Appellant’s application for relief is denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




                       _______________________
(Footnote Continued)

entered on March 31, 2015 dismissed Appellant’s untimely answer to the
Commonwealth’s response to his petition for review. Again, this order was
not necessary for our overall disposition. Hence, we deny Appellant’s
requests.



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