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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RUBEN R. CRAIG                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DISTRICT ATTORNEY OF VENANGO               :   No. 204 WDA 2019
    COUNTY                                     :

              Appeal from the Order Entered September 6, 2018
    In the Court of Common Pleas of Venango County Domestic Relations at
                       No(s): CP-61-MD-0000040-2018

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                         FILED JANUARY 15, 2020

        Ruben R. Craig (Craig) appeals from the September 6, 2018 order of

the Court of Common Pleas of Venango County (trial court) denying his

petition for approval of five private criminal complaints. We affirm.1


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*   Retired Senior Judge assigned to the Superior Court.

1  The district attorney has filed an Application to Quash Appeal based on
Craig’s substantial failure to comply with our Rules of Appellate Procedure.
Craig’s brief fails to comply with the Rules in myriad ways, and we could quash
the appeal on this basis. See Pa.R.A.P. 2101; Commonwealth v. Spuck, 86
A.3d 870, 871 (Pa. Super. 2014) (quashing appeal for “flagrant failure to file
a brief that conforms to the Pennsylvania Rules of Appellate Procedure”).
However, because we are able to discern his arguments, we decline to quash.
The district attorney also argues that the appeal was untimely filed, as the
trial court denied Craig’s petition on September 6, 2018, and Craig’s pro se
notice of appeal was not timestamped by the trial court Prothonotary until
December 3, 2018. This court issued a Rule to Show Cause why the appeal
should not be quashed as untimely. Craig filed a response arguing that the
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        We glean the following facts from the record. In May 2016, Craig was

involved in an altercation with Shawn Schillinger (Schillinger), Robert

Neubauer (Neubauer) and Michael Ahrens (Ahrens) that ended with Craig

stabbing Schillinger twice in the groin.            At Craig’s criminal trial, the

Commonwealth put forth evidence that Craig had engaged in a course of

intimidation and stalking against his sister-in-law, Brooke Biernesser

(Brooke), and anyone involved with her family, including Neubauer, her

paramour, and Ruth Biernesser, her mother. The stabbing occurred when the

three men confronted Craig about this behavior.             Craig was ultimately

convicted of, inter alia, attempted homicide for stabbing Schillinger.2        18

Pa.C.S. § 901(a), 2501.

                                               I.

        This appeal involves five private criminal complaints that Craig filed

against Kyle Snell (Snell), Neubauer and Brooke alleging that they had

committed various crimes related to the purported transfer of a firearm and



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prisoner mailbox rule applied because he gave his notice of appeal to prison
authorities for mailing on September 27, 2019. A review of the certified record
reveals a DC-138A cash slip from that date, signed by a prison official,
indicating that he purchased postage for the notice of appeal on that date.
The cash slip lists the trial court docket number for this case and was included
with the notice of appeal when filed. Based on this evidence, the appeal was
timely filed pursuant to the prisoner mailbox rule. Smith v. Pa. Bd. of
Probation & Parole, 683 A.2d 278, 282 (Pa. 1996).

2   Brooke and Neubauer testified at Craig’s criminal trial.


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the group assault on Craig.     Craig alleged that the three men physically

attacked him in the street and that he stabbed Schillinger in self-defense after

Schillinger hit him on the head with half of a brick. He contends that Brooke

instigated the attack through text messages urging Schillinger to assault

Craig. Craig believes that Brooke and Neubauer orchestrated the attack based

on racial animus, as Brooke was unhappy that her sister had married Craig,

who is black.

      Craig further alleged that following the altercation, the three men went

to Neubauer’s house, where Neubauer retrieved a firearm in case Craig had

followed them. Craig avers that Neubauer and Brooke received this firearm

from Snell, who was Ruth Biernesser’s paramour. Snell allegedly told police

that the firearm had belonged to him. Brooke refused to tell the police where

Neubauer had gotten the firearm, saying that she “[didn’t] want to get anyone

in trouble.” See Writ of Mandamus in Appeal of District Attorney’s Disapproval

of Private Criminal Complaint Forms (“Petition for Review”) at Paragraph 12.

      The district attorney disapproved each of the private complaints,

attaching reasons for doing so to each of the complaints. As to the private

complaints setting forth the firearm violations, the district attorney reasoned

that because Snell was Ruth Biernesser’s paramour at the time he allegedly

transferred the firearm to Brooke, the transfer was allowed because it was

between “family” members. As an alternative reason, the district attorney

also noted that the transfer was temporary and had been necessary given


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Craig’s history of threatening behavior toward Brooke.      He also found that

there was no evidence that there was a transfer to Neubauer. As to the non-

firearm violations, the district attorney disapproved those private complaints

because all of the evidence adduced at the criminal trial was contrary to what

Craig alleged.

       Craig then filed a Petition for Review with the trial court claiming that

the disapproval was improper because he had made out a prima facie case of

the charges set forth in each of the private complaints.      Holding only that

merely making out a prima facie case is insufficient to reverse the district

attorney’s decision not to approve the private complaints related to the

firearm, the trial court denied Craig’s Petition for Review as to those

complaints. The trial court also denied Craig’s Petition for Review as to the

other complaints because based on the facts, no offense had been made out.

Craig filed a timely notice of appeal and both he and the trial court have

complied with Pa.R.A.P. 1925.3



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3 “Where the district attorney’s denial is based on a legal evaluation of the
evidence, the trial court undertakes a de novo review of the matter. Where
the district attorney’s disapproval is based on policy considerations, the trial
court accords deference to the decision and will not interfere with it in the
absence of bad faith, fraud or unconstitutionality. In the event 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
appropriate standard to be employed.” In re: Private Complaint of
Owens, 810 A.2d 172, 175-176 (Pa. Super. 2002) (internal quotations and
citations omitted).


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                                      II.

      While Craig lists eight separate questions in his brief’s Statement of

Questions involved, all of the questions relate to whether the trial court abused

its discretion in finding that the district attorney’s disapproval of his private

criminal complaints was proper when there was prima facie evidence to

support prosecution.

                                       A.

      An individual who is not a law enforcement officer may submit a private

criminal complaint to the district attorney seeking prosecution for the crimes.

See Pa.R.Crim.P. 506(A). The district attorney, within his discretion, may

then elect to either approve or disapprove the complaint. Id. At a minimum,

the private criminal complaint must set out a prima facie case of criminal

conduct. In re Ullman, 995 A.2d 1207, 1213 (Pa. Super. 2010). The district

attorney is further obliged to investigate the allegations in the complaint to

determine whether prosecution is in the public interest. 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 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 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

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       implemented by the district attorney’s refusal to approve the
       private criminal complaint at the outset.

In re Miles, 170 A.3d 530, 535 (Pa. Super. 2017) (internal quotations and

citations omitted).4

       If the district attorney disapproves a private criminal complaint, the

complainant can petition the Court of Common Pleas for review. In such a

challenge to the disapproval, the complainant must do more than show that

the district attorney’s decision was flawed but is also required to show that

the decision amounted to bad faith, fraud or was unconstitutional.         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 Private Criminal Complaints

of Rafferty, 969 A.2d 578, 581-82 (Pa. Super. 2009).

                                               B.

       Craig alleges that Snell, Neubauer and Brooke violated the Uniform

Firearms Act (Act)5 when Snell improperly transferred a firearm to Brooke,

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4 On appeal, this court considers whether the trial court committed an error
of law or an abuse of discretion in evaluating the district attorney’s disapproval
of the private criminal complaint; we do not review the district attorney’s
underlying decision. In re: Private Complaint of Owens, supra.

5 18 Pa.C.S. §§ 6101-6124. The Act mandates that transfers of firearms
between individuals who are not licensed to perform such transfers must take
place in “the place of business of a licensed importer, manufacturer, dealer or
county sheriff's office, the latter of whom shall follow the procedure set forth
in this section as if he were the seller of the firearm.” 18 Pa.C.S. § 6111(c).



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who in turn transferred it to Neubauer to use as protection against Craig.

Craig also alleged that Brooke knew the firearm would be used in a crime and,

as a result, she could be held liable for those crimes. 18 Pa.C.S. § 6111(g)(5).

       The district attorney’s investigation into the evidentiary foundations of

the complaint was based primarily on the testimony and other evidence

presented at Craig’s criminal trial, over which the trial court also presided.

Craig offered no additional evidence in support of his private criminal

complaints or Petition for Review, instead only insisting that when a prima

facie case is alleged, the district attorney is obligated to approve the

complaint.     However, this misstates the district attorney’s duties.    Even

assuming a prima facie case is made out, the district attorney may exercise

discretion to decline prosecution if he or she believes it would not be in the

best interest of the state. In re Miles, supra.

       Here, based on his knowledge of the events leading to Craig’s criminal

trial and the evidence adduced at that trial, the district attorney determined

that he would not be able to sustain any convictions related to the alleged

transfer of the firearm. Snell was in a relationship with Brooke’s mother and



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It provides transfers between spouses, parents and children, and
grandparents and grandchildren are exempt. Id. We disagree with the district
attorney that a paramour falls within that exemption. Moreover, we also note
that the allegations in the private criminal complaint did not make out that
there was a transfer of a firearm, only that Snell lent the firearm to Brooke.
See 18 Pa.C.S. § 6115(b).


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he allegedly “transferred” the firearm out of necessity when Craig continued

to pose a threat to Brooke.         No evidence supported Craig’s assertion that

Brooke then unlawfully gave the firearm to Neubauer.             Given the history

between these parties, the district attorney did not believe prosecution would

be successful or in the public interest, and the trial court agreed. Craig has

not sustained his heavy burden establishing that this rationale “amounted to

bad faith, fraud or unconstitutionality.”           In re:   Private Complaint of

Owens, supra. Accordingly, we find no abuse of discretion by the trial court

with respect to these complaints.

                                               C.

       The     remaining private      complaints revolved around Brooke       and

Neubauer’s involvement in the altercation that led to Craig stabbing

Schillinger.     Craig alleged that Brooke committed criminal use of a

communication facility (CUCF),6 conspiracy to commit riot,7 conspiracy to

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6 A person commits CUCF if she “uses a communication facility to commit,
cause or facilitate the commission or the attempt thereof of any crime which
constitutes a felony. . .” 18 Pa.C.S. § 7512(a).

7“A person is guilty of riot . . . if he participates with two or more others in a
course of disorderly conduct:          with intent to commit or facilitate the
commission of a felony or misdemeanor.” 18 Pa.C.S. § 5501(1). Likewise, a
person may be convicted of criminal conspiracy if

       with the intent of promoting or facilitating [a crime’s] commission
       he (1) agrees with such other person or persons that they or one
       or more of them will engage in conduct which constitutes such
       crime or an attempt or solicitation to commit such crime; or (2)



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commit aggravated assault,8 and ethnic intimidation9 when she urged

Schillinger, Neubauer and Ahrens by text message to assault Craig based on

her racial animus towards him.           He alleges that Neubauer committed the

crimes of riot, conspiracy to commit aggravated assault, and ethic intimidation

for his role in the group assault.        Again, the alleged factual foundation for

these crimes was based on the testimony adduced at Craig’s criminal trial.

       In disapproving the complaint against Brooke, the district attorney cited

to the testimony at Craig’s four-day criminal trial and determined that none

of the allegations against Brooke were supported by that evidence.              In

disapproving the complaint against Neubauer, the district attorney found that

the evidence from the night of the altercation suggested only that Schillinger

had participated in a physical attack, not Neubauer. The district attorney also

noted that Schillinger only physically responded after being struck by Craig.

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       agrees to aid such other person or persons in the planning or
       commission of such crime or of an attempt or solicitation to
       commit such crime.

18 Pa.C.S. § 903(a).

8 “A person is guilty of aggravated assault if he attempts to cause serious
bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the value
of human life.” 18 Pa.C.S. § 2702(a)(1).

9 A person is guilty of ethnic intimidation if he or she commits any crime “with
malicious intention toward the race, color, religion or national origin of another
individual or group of individuals.”




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At his criminal trial, Craig presented his claims that he had reacted in self-

defense to a group that orchestrated an attack based on racial animus. The

jury was not persuaded by the argument and found Craig guilty of attempted

homicide.    As a result, the district attorney determined that there was no

evidence to support the charges against Brooke and Neubauer as the jury’s

verdict had credited the version of events testified to by the Commonwealth’s

witnesses.10

       Again, we note that a district attorney is not obligated to approve a

private criminal complaint merely because a prima facie case has been stated

therein. In re Miles, supra. Rather, the district attorney has a professional

duty to investigate the allegations and determine for himself whether

prosecution is in the public interest and a conviction is likely based on available

evidence. Here, the district attorney had the benefit of an entire trial record

to evaluate whether the allegations Craig made against Brooke and Neubauer

merited prosecution. Because the jury did not credit Craig’s version of events

in the criminal trial, where he thoroughly confronted Brooke and Neubauer

with the above allegations, the district attorney determined that he did not

have sufficient credible evidence to seek prosecution of these crimes. Because



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10 Because the district attorney’s disapproval was based on lack of sufficient
evidence, the trial court conducted a de novo review. In re: Private
Complaint of Owens, supra. We, in turn, conduct our own de novo review
of the trial court’s determination. In re Wilson, 879 A.2d 199, 214 (Pa.
Super. 2005) (en banc).

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Craig put forth no additional evidence in his private criminal complaints that

would suggest prosecution of the crimes would be successful and in the public

interest, the district attorney and the trial court were more than justified in

dismissing the Petition for Review because it is an impermissible collateral

attack on his jury conviction. Consequently, we hold that the trial court did

not err in denying the Petition for Review.

      Application to Quash Appeal denied; Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/2020




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