J-A28002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: VIRGINIA OBENSKI,                :    IN THE SUPERIOR COURT OF
 PRIVATE CRIMINAL COMPLAINT              :         PENNSYLVANIA
                                         :
                                         :
                                         :
                                         :
 APPEAL OF: VIRGINIA OBENSKI             :          No. 709 EDA 2017

                   Appeal from the Order February 3, 2017
            In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-MD-0000210-2017


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 22, 2017

      Appellant, Virginia Obenski, appeals pro se from the order entered in

the Montgomery County Court of Common Pleas, which denied Appellant’s

petition for approval of her private criminal complaint. We affirm.

      The relevant facts and procedural history of this case are as follows.

Appellant left her automobile at Meenan Transmission for service on May 4,

2012. Subsequently, Appellant and Steven Meenan, the proprietor, disputed

whether she had authorized the repairs made and whether Mr. Meenan must

release the car to Appellant. Appellant filed a civil suit when the parties could

not resolve their disagreement.        Appellant’s civil suit was ultimately

unsuccessful.

      On October 17, 2016, Appellant filed a private criminal complaint

(“PCC”) against Mr. Meenan, charging him with theft by unlawful taking,

receiving stolen property, and unauthorized use of an automobile. Following
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review, the office of the district attorney informed Appellant on October 26,

2017, that it would not initiate criminal charges against Mr. Meenan on the

grounds alleged. The reasons for disapproval were insufficient corroboration,

insufficient evidence, insufficient probable cause, lack of prosecutorial merit,

and pursuit of the complaint would not serve the interest of justice.

      Appellant filed a petition for review of the PCC in the Court of Common

Pleas on January 13, 2017. On February 1, 2017, the court held a hearing; it

denied Appellant’s petition for review on February 3, 2017. Appellant timely

filed a pro se notice of appeal on February 22, 2017. The court did not order

a concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b),

and Appellant filed none.

      Appellant raises one issue:

         WHETHER THE [TRIAL] COURT PROPERLY DISMISSED
         APPELLANT’S PETITION TO REVIEW PRIVATE CRIMINAL
         COMPLAINT[?]

(Appellant’s Brief at 7).

      As best we can determine, Appellant argues the evidence she presented

in her PCC required the district attorney to initiate criminal charges against

Steven Meenan, as she requested. Specifically, Appellant complains her case

is more than just a civil contract dispute; it is a criminal case worthy of

prosecution.    Appellant claims she properly alleged charges against Mr.

Meenan of theft by unlawful taking, receiving stolen property, and

unauthorized use of an automobile. Appellant submits she averred sufficient


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facts to support the charges, challenges the level of the district attorney’s

investigation, and disagrees with the district attorney’s decision not to

prosecute. Appellant concludes we should reverse the trial court’s denial of

Appellant’s petition for approval of her private criminal complaint.      We

disagree.

      Appellate examination of a trial court’s review of a district attorney’s

decision to disapprove a private criminal complaint 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.

                                  *    *    *

         [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.

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)). Further:

         The district attorney’s decision not to prosecute a private
         criminal complaint for reasons including policy matters
         carries a presumption of good faith and soundness. The
         complainant must create a record that demonstrates the


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         contrary. Thus, the appropriate scope of review in policy-
         declination cases is limited to whether the trial court
         misapprehended or misinterpreted the district attorney’s
         decision and/or, without legitimate basis in the record,
         substituted its own judgment for that of the district
         attorney. We will not disturb the trial court’s decision unless
         the record contains no reasonable grounds for the court’s
         decision, or the court relied on rules of law that were
         palpably wrong or inapplicable. Otherwise, the trial court’s
         decision must stand, even if the appellate court would be
         inclined to decide the case differently.

Id. at 215 (internal citations omitted).

         “A private criminal complaint must at the outset set forth a
         prima facie case of criminal conduct.” In re Ullman, supra
         at 1213. Nevertheless, “a well-crafted private criminal
         complaint cannot be the end of the inquiry for the
         prosecutor.”      Id. (quoting In re Private Criminal
         Complaint of Adams, 764 A.2d 577, 580 (Pa.Super.
         2000)).      The district attorney must investigate the
         allegations of a properly drafted complaint to permit a
         proper decision on whether to approve or disapprove the
         complaint.     In re Ullman, supra at 1213.           “[S]uch
         investigation is not necessary where the allegations of
         criminal conduct in the complaint are unsupported by factual
         averments.” Id. (quoting Commonwealth v. Muroski,
         506 A.2d 1312, 1317 (Pa.Super. 1986) (en banc)). Both
         the district attorney and the trial court have a responsibility
         to prevent the misuse of judicial and prosecutorial resources
         in the pursuit of futile prosecutions.” In re Ullman, supra
         at 1213.

         Moreover,

            [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. The public
            prosecutor is duty bound to bring only those cases

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            that are appropriate for prosecution.     This duty
            continues throughout a criminal proceeding and
            obligates the district attorney to withdraw charges
            when he concludes, after investigation, that the
            prosecution lacks a legal basis.

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

Criminal Complaint of Wilson, supra at 212).

         The district attorney is permitted to exercise sound
         discretion to refrain from proceeding in a criminal case
         whenever he, in good faith, thinks that the prosecution
         would not serve the best interests of the state. This decision
         not to prosecute may be implemented by the district
         attorney’s refusal to approve the private criminal complaint
         at the outset.

In re Ullman, supra at 1214 (quoting Commonwealth v. Malloy, 450 A.2d

689, 692 (Pa.Super. 1982)).

      Rule 506 of the Pennsylvania Rules of Criminal Procedure governs

private criminal complaints as follows:

         Rule 506. Approval of Private Complaints

         (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.


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                                 *    *    *

Pa.R.Crim.P. 506.   If the district attorney disapproves a private criminal

complaint, the complainant can petition the Court of Common Pleas for a Rule

506 review. In re Private Complaint of Adams, supra at 579.

        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 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.

In re Private Criminal Complaint of Wilson, supra at 215.

        The trial court must first correctly identify the nature of the
        district attorney’s reason(s) for denying a private criminal
        complaint. 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.

        Everything will depend on the particular facts of the case
        and the district attorney’s articulated reasons for acting, or
        failing to act, in the particular circumstances. For example,
        a court [might] find [an abuse] of discretion in a district
        attorney’s pattern of discriminatory prosecution, or in
        retaliatory prosecutions based on [the district attorney’s]
        personal or other impermissible motives.          Similarly, a

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           district attorney [might] be found to have…abused his
           discretion for his blanket refusal to prosecute for violations
           of a particular statute or for refusing to prosecute solely
           because the accused is a public official.

           Under Rule 506 and settled case law, the private criminal
           complainant has no right to an evidentiary hearing in
           connection with the trial court’s review of the district
           attorney’s decision to disapprove the private criminal
           complaint. Rule 506 merely allows the private criminal
           complainant the opportunity to have his complaint reviewed
           in the Court of Common Pleas, following the district
           attorney’s adverse decision.

Id. at 212-13 (internal citations omitted).

      Instantly, the trial court reasoned:

           [T]he court agrees with the Assistant District Attorney’s
           statement that [Appellant] is attempting to use the criminal
           process for a civil matter. Therefore, the District Attorney
           Office did not abuse its discretion when it declined to
           approve the [PCC]. This conclusion is further supported by
           the reasons stated by Assistant District Attorney…, which
           are set forth in pages 15 through 25 of the transcript of
           testimony dated February 1, 2017.

(Trial Court Opinion at 1-2). The district attorney’s reasons for disapproving

the PCC were insufficient corroboration, insufficient evidence, insufficient

probable cause, lack of prosecutorial merit, and pursuit of the PCC would not

serve the interest of justice. Essentially, the district attorney concluded that

Appellant was trying to use the criminal courts to resolve a private civil

dispute.    The district attorney’s decision was a hybrid of legal and policy

considerations. See In re Private Criminal Complaint of Wilson, supra.

Therefore, the trial court’s proper standard of review was an abuse of

discretion. See id. Our appropriate standard of review of the trial court’s

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decision is likewise an abuse of discretion. Id. After an independent review

of the certified record, we see no error in the trial court’s decision to deny

Appellant relief on her petition for approval of her PCC. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




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