J-S80026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: KOLMAN, TIMOTHY                  :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
APPEAL OF: TIMOTHY KOLMAN               :
                                        :
                                        :
                                        :
                                        :
                                        :     No. 890 EDA 2017

              Appeal from the Order Entered February 6, 2017
 In the Court of Common Pleas of Montgomery County Criminal Division at
                     No(s): CP-46-MD-0000213-2017


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 09, 2018

      Appellant, Timothy Kolman, appeals from the February 6, 2017 order

denying his petition for review of the disapproval of a private criminal

complaint. We affirm.

      The record reveals that on March 11, 2016, Cheltenham police officers

responded to Appellant’s home after receiving a “911 hang up call.” Private

Criminal Complaint, 12/2/16, Attachment (Police Incident Report Form,

3/13/16, at 2.)      When police arrived, Appellant’s wife, Rebecca Landes

(“Ms. Landes”), answered the door.      Id.    Ms. Landes told Officer Kevin

O’Donnell that she and Appellant had a domestic dispute and that she hit

Appellant in the face. Id. Officer O’Donnell arrested Ms. Landes for simple

assault. Id. at 1.
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       Two days later, Appellant reported to police that he awoke on the day

after the incident with a headache.            Private Criminal Complaint, 12/2/16,

Attachment (Police Incident Report Form, 3/13/16, at 2).                  Appellant

informed the police that he had gone to the emergency department at

Abington Hospital and stated that he was diagnosed with a mild concussion.

Id.   Appellant provided Detective Mark Bates with a copy of the hospital

discharge record.      Id.   Detective Bates advised Appellant of Ms. Landes’s

hearing date and warned Appellant to have no contact with her.                 Id.

Detective Bates then asked if Appellant was pursuing a protection from

abuse order (“PFA”), and Appellant responded in the affirmative.1 Id.

       On December 2, 2016, nearly nine months after the incident, Appellant

filed a private criminal complaint pursuant to Pa.R.Crim.P. 506(A) with the

Montgomery County District Attorney’s Office accusing Ms. Landes of simple

assault, 18 Pa.C.S. § 2701(a)(3), and harassment, 18 Pa.C.S. § 2709(a)(1).

Private Criminal Complaint, 12/2/16, at 1-2.               In the private criminal

complaint, Appellant alleged that the previously filed charge of simple
____________________________________________


1  We are constrained to point out that the record at this trial court docket
number does not reflect the initial criminal complaint that the Cheltenham
police filed against Ms. Landes, and it does not memorialize at what point
that complaint was discontinued. However, it is undisputed among the
parties and the trial court that the police-filed criminal complaint against
Ms. Landes was withdrawn. As will be discussed, Assistant District Attorney
Caroline Goldstein stated at the hearing held on Appellant’s petition for
review that Appellant informed the police that he did not wish to pursue
charges against Ms. Landes, and the criminal complaint against her was
dismissed. N.T., 2/6/16, at 6-7.



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assault was dismissed without prejudice. Id. at 2. Attached to the private

criminal complaint was the aforementioned March 13, 2016 police incident

report form, which served as the factual basis for the private criminal

complaint.

     On December 20, 2016, the Montgomery County District Attorney’s

Office sent Appellant a letter informing him that it disapproved the private

criminal complaint.   Pursuant to Pa.R.Crim.P. 506(B)(2), on January 13,

2017, Appellant filed a petition for review of the district attorney’s

disapproval of the private criminal complaint. Following a hearing, the trial

court denied Appellant’s petition for review on February 6, 2017. Appellant

filed a timely appeal. Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

     On appeal, Appellant raises the following issues for this Court’s

consideration:

     1. Was it error to uphold the District Attorney’s disapproval of
     [Appellant’s] private criminal complaint for simple assault in
     violation of [18] Pa.C.S.A. § 2701(a)(3) and harassment in
     violation of [18] Pa.C.S.A. § 2709(a)(1), and to fail to find an
     abuse of discretion, where the complaint included an attached
     police incident report indicating that [Ms. Landes] admitted to a
     police officer that she had struck [Appellant] in the face, yet the
     District Attorney’s stated reasons for disapproval included
     “Insufficient Corroboration”, “Insufficient Evidence”, “Insufficient
     Probable Cause” and “Lacks Prosecutorial Merit”?

     2. Was it error to uphold the District Attorney’s decision to the
     extent that the disapproval fell within the “Interest of Justice”
     category because no written explanation was provided for this
     decision, as required by Pa.R.Crim.P. 506(B)(2), which provides
     that “if the attorney for the Commonwealth ... disapproves the

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      complaint, the attorney shall state the reasons on the complaint
      form and return it to the affiant . . .”. [sic]?

      3. Is the “interest of justice” basis cited in the instant case so
      vague and amorphous that it constituted a violation of
      Pa.R.Crim.P. 506, and should this Court find that District
      Attorneys are not permitted to provide a vague “interest of
      justice” explanation for denial of private criminal complaints as it
      runs afoul of Rule 506 and is essentially no explanation of
      “reasons” at all?

      4. Was it error to allow the District Attorney’s office to add to,
      testify to, and/or verbally supplement the written reasons for
      disapproval at the February 6th, 2017 hearing, and to allow the
      attorney arguing for the District Attorney’s office to add to the
      alleged reasons the complaint was disapproved when those
      reasons did not appear in writing on the complaint disapproval
      form as required by Pa.R.Crim.P. 506, and should the Court rule
      that Rule 506 limits the District Attorney to the written reasons
      for disapproval set forth on the complaint form, such that any
      attempt to add to or supplement those reasons verbally at a
      later time is unlawful, violates Rule 506, and denies the
      petitioner the notice to which he or she is entitled under Rule
      506 and other applicable law?

Appellant’s Brief at 4-5 (emphasis in original).

      Our standard of review is as follows:

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

            When 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.

                                    * * *


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            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.

      In re Ullman, 995 A.2d 1207, 1213 (Pa. Super. 2010), appeal
      denied, 610 Pa. 600, 20 A.3d 489 (2011) (quoting In re Private
      Criminal Complaint of Wilson, 879 A.2d 199, 214-15 (Pa.
      Super. 2005) (en banc) (internal citations omitted)).

In re Miles, 170 A.3d 530, 534-535 (Pa. Super. 2017).

      In the instant case, the reasons provided by the district attorney’s

office for disapproval of the complaint are a hybrid of legal and policy

considerations. Thus, our standard of review is abuse of discretion. In re

Miles, 170 A.3d at 534-535.

      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, 1158 (Pa. Super. 2011) (internal

citations and quotation marks omitted).

      In his brief on appeal, Appellant focusses on the absence of a

satisfactory explanation for the disapproval of his private criminal complaint.

As all of Appellant’s issues are interrelated, we address them concurrently.




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      Appellant argues that because there was a police incident report and

charges filed, the trial court abused its discretion in denying his petition for

review. Appellant’s Brief at 10-11. We point out that even if we concluded

that the police incident report established a prima facie case, it did not

require approval of a private criminal complaint.          In re Private Criminal

Complaint of Wilson, 879 A.2d 199, 211-212 (Pa. Super. 2005) (en banc).

Appellant chose not to pursue the criminal charges when they were filed

against Ms. Landes; therefore, no investigation was conducted, and the

matter was dropped. Appellant waited nearly nine months before deciding

to file the private criminal complaint.

      Pursuit   of   criminal   actions    is   not   a   matter   of   caprice;   the

Commonwealth has a duty “to bring only those cases that are appropriate

for prosecution.” In re Wilson, 879 A.2d at 211. The Commonwealth cites

Hearn v. Myers, 699 A.2d 1265 (Pa. Super. 1997), as support for its policy

position regarding individuals who choose not to pursue charges initially but

then wish to do so after a considerable passage of time. Commonwealth’s

Brief at 8. In Hearn, we held, inter alia, that prosecutors are not beholden

to the whim of complainants.         Therein, the appellant’s apartment was

burglarized, and he reported this to the police the following day.           Hearn,

699 A.2d at 1266.         Following an investigation, police identified the

perpetrators. Id. All three suspects confessed. Id. (emphasis added).

When the police contacted the appellant to inform him that the perpetrators


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had been caught and that charges would be filed, the appellant declined to

press charges because he had an intimate relationship with one of the

suspects.    Id.   The Commonwealth did not file charges, and the police

discontinued the investigation.      Id.    However, four months later, the

appellant filed a private criminal complaint, the district attorney disapproved

it, and the appellant appealed. Id. On appeal, this Court affirmed, stating

that:

        individuals cannot dictate to the Commonwealth who and when
        to prosecute. The district attorney is afforded the power to
        prosecute on behalf of the Commonwealth, and to decide
        whether and when to prosecute. The power to approve or
        disapprove private criminal complaints is consistent with the
        authority that the district attorney exercises in deciding to
        initiate or discontinue prosecutions. To permit [the a]ppellant’s
        criminal complaint would severely undermine the district
        attorney’s prosecutorial discretion. It would allow individuals
        who initially declined to press charges to return months
        or years later and order the district attorney to prosecute.
        It would also permit individuals to arbitrarily choose whom to
        prosecute for a crime, instead of all parties responsible. A
        system such as this would severely restrain the district
        attorney’s ability to perform his official duties.

Id. at 1267 (internal citations omitted) (emphasis added).

        Thus, despite the police incident report in the case at bar, Appellant’s

decision to drop the charges only to change his mind more than eight

months later, supports the Commonwealth’s policy-based position. The trial

court further explained:

        This case arises out of an on-going domestic situation. Criminal
        charges were filed and then withdrawn by [Appellant]. The
        records were expunged. [Appellant] filed a PFA and pursued its
        violation. [Nine] months after the incident, [Appellant] wanted to

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       pursue the identical charges against [Ms. Landes]. Not a new
       incident but the old one. The District Attorney’s office, in the
       exercise of discretion, could very well not like to have its
       prosecutional authority manipulated at the whim of a domestic
       relations party against [his] spouse. Such could be considered to
       be the use of criminal powers to enforce civil remedies, as the
       District Attorney argued in court. [N.T., 2/6/17, at 14-15.] A
       possible domestic relations strategy that the District Attorney
       chose not to participate in again.

             The District Attorney’s office clearly did not abuse its
       discretion in denying prosecution of this claim even though there
       was an admission. There were ample policy considerations to
       warrant disapproval of this private criminal complaint.

Trial Court Opinion, 5/4/17, at 6.       Ultimately, if Appellant believed that

Ms. Landes had violated a PFA, his remedy would be under the PFA and not

resurrection of criminal charges that he previously abandoned.

       Inextricably intertwined throughout all of Appellant’s arguments is his

assertion that the district attorney’s decision was inadequately expressed in

the letter disapproving the complaint, and therefore, the decision was

patently arbitrary. Appellant’s Brief at 11, 13, and 15. We disagree.

       As discussed above, Assistant District Attorney Caroline Goldstein

noted that Appellant informed the police that he did not want to press

charges against Ms. Landes. N.T., 2/6/16, at 6-7. This fact supported the

district   attorney’s   policy-based   consideration   on   disapproving   private

criminal complaints.     Appellant objected to Attorney Goldstein’s statement

and argued that any and all reasons for disapproval of a private criminal

complaint must be in the “four corners” of the form disapproving it. Id. at

6-8. However, Appellant cites no authority for such a limitation.

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     Conversely, the Commonwealth notes in its brief:

           Rule 506(B)(2) states, in relevant part, that “if the
     attorney for the Commonwealth ... disapproves of the complaint
     the attorney shall state the reasons on the complaint form and
     return it to the affiant.” Id. The complaint form in this case … is
     the “complaint form” referred to in the rule and publically
     accessible at website for the Pennsylvania Unified Judicial
     System. It provides a short blank space for the Commonwealth
     to state the reason for its denial of the private criminal
     complaint. [Appellant’s] argument that Rule 506 requires some
     in-depth discussion is inconsistent with standardized, statewide
     practice. The denial form used in this case, moreover, provided
     more information than could have been possible on the standard
     complaint form. The form here was substantially similar to the
     one set forth in Rule 507(C) for the disapproval of police
     complaints.

Commonwealth’s Brief at 9-10.

     We    agree    with   the   Commonwealth’s    position.    Indeed,    the

Commonwealth provided Appellant a checklist of the reasons for disapproval

of the complaint.   District Attorney’s Letter Disapproving Private Criminal

Complaint, 12/20/16. Appellant cites no case law requiring the disapproval

form to be an exhaustive list and limiting the reasons for disapproval to the

four corners of a form letter. Rather, we agree with the Commonwealth that

if an affiant does not agree with the disapproval of his private criminal

complaint, there is an established mechanism for clarification—the affiant

may petition for review in the court of common pleas pursuant to

Pa.R.Crim.P. 506(B)(2). N.T., 2/6/16, at 8; Commonwealth’s Brief at 8.

     The record reveals that at the hearing, Assistant District Attorney

Goldstein explained in detail why the district attorney’s office disapproved


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Appellant’s criminal complaint.      These reasons included that Appellant

withdrew the charges against Ms. Landes; he obtained a PFA against

Ms. Landes; he informed police he did not want to testify; and he felt safe.

N.T., 2/6/17, at 5-9. Assistant District Attorney Goldstein then asserted:

            Now, ten, 11 months later, he’s coming back saying that
      he wants us to proceed on those charges, but right now we have
      a credibility issue.

             If he didn’t want to go in the first place, we can’t just start
      arbitrarily charging people on the whims of victims who are
      telling us not to charge.

N.T., 2/6/17, at 9.

      Assistant District Attorney Goldstein continued:

            And then further to give you some more information, after
      the charge was withdrawn, Ms. Landes moved for expungement,
      so most of the records are now gone.

            And the expungement was granted because it was a
      withdrawn case, and [Ms. Landes] was legally entitled to that.

N.T., 2/6/17, at 11-12.

      After review of the record, we find that the Commonwealth provided

ample reasons for its decision.     Accordingly, we conclude that Appellant’s

arguments are meritless.       Therefore, for the reasons set forth above,

Appellant is entitled to no relief. We affirm the trial court’s order denying

Appellant’s petition for review.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/18




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