J-S22033-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

SHERMAN COLEMAN,                            : IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                Appellant                   :
                                            :
                   v.                       :
                                            :
SCI-ALBION,                                 :
                                            :
                Appellee                    : No. 1717 WDA 2014

               Appeal from the Order Entered October 7, 2014,
                in the Court of Common Pleas of Erie County,
            Criminal Division, at No(s): CP-25-MD-0000025-2014

BEFORE:     PANELLA, LAZARUS, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED APRIL 28, 2015

      Sherman Coleman (Coleman) appeals pro se from the order entered

on October 7, 2014, which denied his petition for review from the denial of

his private criminal complaint. After review, we affirm.

      A prior panel of this Court set forth the facts of this case.

             In November 2013, Coleman filed a private criminal
      complaint alleging that the Superintendent of SCI-Albion, Nancy
      Giroux, committed the crime of “official oppression” in violation
      of 18 Pa.C[.]S[.] § 5301, et seq., by … illegally detain[ing him]
      in this State Correctional Institution in violation of the Act of
      1974[.]” Specifically, Coleman claimed that because the record
      officer at SCI-Albion had no copy of his sentencing order, the
      state prison did not have legal authority to confine him.
      Coleman’s Private Criminal Complaint, 11/27/13, at 2. After
      review, the District Attorney of Erie County disapproved
      Coleman’s criminal complaint for “lack of prosecutorial merit.”

           On February 3, 2014, Coleman filed a petition for review,
      pursuant to Pa.R.Crim.P. 506, which states:

                  Rule 506. Approval of Private Complaints


*Retired Senior Judge assigned to the Superior Court.
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                 (A) When the affiant is not a law enforcement
          officer, the complaint shall be submitted to an
          attorney for the Commonwealth, who shall approve
          or disapprove it without unreasonable delay.

              (B)  If          the     attorney      for     the
          Commonwealth:

                (1) approves the complaint, the attorney shall
          indicate this decision on the complaint form and
          transmit it to the issuing authority;

               (2)  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 (emphasis added).           The Commonwealth
     responded to Coleman’s petition for review, stating the following
     reasons for its decision to disapprove his complaint:

          The    Commonwealth’s       denial  was     a    policy
          determination, and does not represent an abuse of
          discretion, nor was it made in bad faith, the result of
          fraud, or unconstitutional.

          At trial, the Commonwealth would have to prove,
          beyond a reasonable doubt:

                1) that Ms. Giroux, as Superintendent, has
          subjected [Coleman] to unlawful detention;

                2) that Ms. Giroux, in so subjecting [Coleman],
          did so in her capacity as Superintendent; and

               3) that Ms. Giroux so detained [Coleman]
          knowing said confinement was illegal.

          The Commonwealth does not believe it could
          successfully prosecute Ms. Giroux as it does not
          believe it could prove, unanimously, beyond a



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              reasonable doubt, either elements (1) or (3) of the
              crime of Official Oppression.

        Commonwealth’s Response to Petition for Review from Denial of
        Private Criminal complaint, 2/21/14, at 2 (emphasis added).

               On February 24, 2014, the trial court denied Coleman’s
        petition for review, reiterating that the District Attorney’s
        decision was based upon lack of prosecutorial merit, as set forth
        in the Commonwealth’s response, and that after the court’s
        review, it was clear that the D.A. did not abuse its discretion.

In Re: S. Coleman, 106 A.3d 161 (Pa. Super. 2014) (unpublished

memorandum at 1-3) (footnote omitted).

        Coleman timely filed a notice of appeal to this Court.      On appeal,

Coleman contended that his continued incarceration is illegal because a

proper sentencing order does not exist as required by 42 Pa.C.S.

§ 9764(a)(8).1 Thus, Coleman believed that the Department of Corrections

lacked the statutory authority to detain him.




1
    Subsection 9764(a)(8) provides as follows:

        (a) General rule.--Upon commitment of an inmate to the
        custody of the Department of Corrections, the sheriff or
        transporting official shall provide to the institution’s records
        officer or duty officer…

                                      ***

           (8) A copy of the sentencing order and any detainers filed
           against the inmate which the county has notice.

42 Pa.C.S. § 9764(a)(8).



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      A panel of this Court concluded that “there is nothing in the record

indicating that a valid sentencing order was entered on Coleman’s criminal

case below.   Without a valid sentencing order on the docket, Coleman’s

confinement at SCI-Albion could well be a violation of section 9764.” In Re:

S. Coleman, supra, at 7. Accordingly, this Court remanded the case to the

trial court to “hold a hearing to determine whether, in fact, a valid

sentencing order was docketed in Coleman’s criminal case in Allegheny

County, which would justify the district attorney’s disapproval of his criminal

complaint against the Superintendent of Erie County.” Id. at 8.

      On remand, the “Erie County District Attorney submitted information

to [the trial court] further substantiating the fact that [Coleman] is lawfully

under sentence of confinement for offenses committed in Allegheny County.”

Trial Court Opinion, 10/7/2014, at 1.        Attached to that opinion is a

sentencing form which shows that on September 13, 1988, Coleman was

sentenced by Judge John W. O’Brien of Allegheny County.         On that date,

Coleman “was sentenced to consecutive terms of no less than ten (10) and

no more than twenty (20) years in prison for each of his three (3)

convictions.” Commonwealth v. Coleman, 570 A.2d 1086 (Pa. Super.

1989) (unpublished memorandum at n. 6). Thus, on October 7, 2014, the

trial court entered an order denying Coleman’s petition for review of his

private criminal complaint.




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      Coleman timely filed a notice of appeal, along with “objections” to the

trial court’s opinion and order. Petitioner’s Objections to this Court’s Opinion

and Order, 10/17/2014, at 1. The trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a) referring this Court to the opinion and order entered on

October 7, 2014.

      On appeal, Coleman contends, inter alia, that the trial court erred in

denying his petition for review, as the Commonwealth still has not submitted

a “written, signed and sealed judgment of sentencing order forwarded to the

clerk of courts in which was time-stamped-dated and placed in the certified-

official-court-record, i.e., (“criminal docket entries”) is the (“ONLY”) lawful

order/document that can show that [Coleman] is lawfully detained[.]”

Coleman’s Brief at 13-14 (verbatim).

      We consider Coleman’s issue mindful of our standard of review.

            [W]hen 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. In the 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 conclusion that



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      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. See
      Commonwealth v. Hunt, 858 A.2d 1234 (Pa. Super. 2004) (en
      banc) (citing Commonwealth v. Jones, 826 A.2d 900, 907 (Pa.
      Super. 2003) (en banc)) (stating: “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”).

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

      On appeal, Coleman cites to no authority convincing us that the

documentation produced by the Commonwealth is insufficient to prove that

Coleman is being lawfully detained.    The sole basis upon which this Court

remanded the case to the trial court was because it could not find a

sentencing order in the certified record.     This Court observed that “the

difficulty in finding such an order in the current record is compounded by the

fact that Coleman was sentenced in 1988 in Allegheny County and the

record before us is confined to the private criminal complaint proceedings

initiated in Erie County in November 2013.” In Re: S. Coleman, supra, at

8.   Thus, the Commonwealth heeded the directions of this Court and

supplemented the Erie County private criminal complaint docket with



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Coleman’s criminal docket information from the Allegheny County case,

which included a sentencing form. Accordingly, the trial court then had in its

possession a “valid sentencing order … which would justify the district

attorney’s disapproval of [Coleman’s] criminal complaint         against   the

Superintendent of Erie County.” Id. Thus, we conclude that Coleman is not

entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2015




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