                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George Rahsaan Brooks,                        :
                             Appellant        :
                                              :
                     v.                       :
                                              :
Office of the District Attorney               :
and District Attorney,                        :    No. 12 C.D. 2016
Stephen A. Zappala                            :    Submitted: May 13, 2016


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                        FILED: September 14, 2016

              George Rahsaan Brooks (Brooks) appeals from the Allegheny County
Common Pleas Court’s (trial court) August 6, 2015 order dismissing his pro se
complaint against the Allegheny County (County) District Attorney’s Office and
District Attorney Stephen A. Zappala (Zappala) (collectively, Defendants)
(Complaint) as frivolous. Brooks presents two issues for this Court’s review: (1)
whether the trial court erred by circumventing Section 1405(b) of The County Code
(Code);1 and (2) whether the trial court erred by declaring that Brooks’ Complaint
was frivolous. After review, we affirm.
              On September 30, 1975, Brooks was arrested.2 Brooks further alleges in
the Complaint that on October 1, 1975, Detective Robert Spozarski (Detective


       1
         Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1405(b).
       2
         According to the Complaint the arrest was “for an offense that had nothing to do with the
instant case.” Complaint ¶ 8. In his Complaint, Brooks essentially asserts that the prosecutors
arrested him on September 30, 1975 for the assault and robbery of Michael Miller and are
Spozarski) arrested Brooks for the assault and robbery of Michael Miller (Miller). 3
According to the Complaint, Brooks was arraigned, but not for robbery or assault, nor
was he placed in the county jail for such charges. See Complaint ¶ 10. Brooks
further avers that Detectives Spozarski, Charles Lenz (Lenz), Pharris Hutton
(Hutton), Robert McKay (McKay), Frank Amity (Amity) and Joseph G. Stotlrmyer
(Stotlrmyer) questioned him on several occasions at police headquarters about
“Freddy” and about identifying “Freddy” from a photo array, but Brooks refused,
stating he would not talk without a warrant or court order. Complaint ¶ 11. Brooks
alleges that the detectives told him they knew he was in the hospital with Miller and
Freddy and, thus, wanted him to identify Freddy by full name and photo.                          See
Complaint ¶ 11. Brooks also asserts in the Complaint that he was subpoenaed for
Miller’s November 18, 1975 Coroner’s Inquest. Complaint ¶ 14. Brooks avers that
the sole purpose for subpoenaing him was for Miller’s family to see him, thereby
allowing them to identify him in future court proceedings. See Complaint ¶ 14.
               On September 17, 1980, Brooks was sentenced to life imprisonment.4
“Since then [Brooks] has filed several unsuccessful [Post Conviction Relief Act5
(]PCRA[)] Petitions.”6 Trial Ct. Op. at 1. According to the Complaint, Brooks sent
Zappala several letters claiming his innocence and asking Zappala to review the

fabricating the October 1, 1975 date of arrest. In his brief, Brooks asserts that September 30, 1975
was the date the detectives testified before the Grand Jury. See Brooks’ Br. at 9.
        3
          It appears Brooks is using the term assault rather than the charge of murder. See infra note
4.
        4
          See Trial Ct. Op. at 1. The record does not indicate on what charges he was sentenced,
although Defendants’ brief states that Brooks was convicted of robbery and murder in 1980. See
Defendants’ Br. at 2. However, the United States District Court in Brooks v. Zimmerman, 712
F.Supp. 496 (W.D. Pa. 1999), confirms that Brooks was indeed convicted of robbery and murder of
the second degree for the robbery and death of Miller. “It is well settled that this Court may take
judicial notice of pleadings and judgments in other proceedings where appropriate.” Lycoming
Cnty. v. Pa. Labor Relations Bd., 943 A.2d 333, 335 n.8 (Pa. Cmwlth. 2007).
        5
          42 Pa.C.S. §§ 9541-9546.
        6
           There is no verification of this statement in the record, although Defendants’ brief
references 11 previous PCRA petitions. See Defendants’ Br. at 3.
                                                  2
record. See Complaint ¶ 16. Those requests were denied. See Complaint ¶ 16.
Thereafter, Brooks asked the Pennsylvania Innocence Project to request materials
from Zappala on his behalf, but those requests were also denied. See Complaint ¶ 16.
               On January 26, 2015, Brooks filed a Misconduct Complaint against
prior-County District Attorney Dugan (Dugan) and Assistant District Attorney
Edward Fagan (ADA Fagan) for conspiring with the County Coroner’s Office.
However, the Misconduct Complaint was returned due to Brooks’ failure to provide
his criminal docket number and to include a formal petition or motion.                           See
Complaint, Ex. C, C-1. In response, on July 15, 2015, Brooks filed the Complaint
“request[ing] that [D]efendants be prosecuted by the Commonwealth, charging
[D]efendants with willful and gross negligence in the execution of the duties of their
office[.]” Complaint ¶ 48. In conjunction with the Complaint, Brooks filed a Petition
for Leave to Proceed In Forma Pauperis.                  On August 6, 2015, the trial court
dismissed the Complaint as frivolous, and the In Forma Pauperis request was
dismissed as moot. Brooks appealed to the Pennsylvania Superior Court. By order
filed January 6, 2016, the case was transferred to this Court.7
               Brooks first argues that the trial court erred by circumventing Section
1405 of the Code, entitled Misconduct of district attorney. Initially, Section 102 of
the Code specifies that the Code “does not apply to counties of the first, second A, or
second classes.” 16 P.S. § 102. Allegheny County is a second class county. See
DeFazio v. Civil Serv. Comm’n of Allegheny Cnty., 756 A.2d 1103 (Pa. Cmwlth.
2000). Thus, Section 1405(b) of the Code does not apply to Zappala.



       7
          “Our scope of review is limited to determining whether constitutional rights have been
violated, whether the trial court abused its discretion, or whether the trial court committed an error
of law.” Lichtman v. Glazer, 111 A.3d 1225, 1227 n.4 (Pa. Cmwlth. 2015).



                                                  3
            Notwithstanding, Section 1405(b) of the Code provides:
            Upon complaint in writing, verified by oath or affirmation
            of the party aggrieved, made to the court in which any
            district attorney shall prosecute the pleas of the
            Commonwealth, charging such district attorney with wilful
            and gross negligence in the execution of the duties of his
            office, the court shall cause notice of such complaint to
            be given to the district attorney and of the time fixed by
            the court for the hearing of the same. If upon such
            hearing the court shall be of opinion that there is probable
            cause for the complaint, they shall hand over or commit the
            district attorney to answer the same in due course of law. If
            the court shall be of opinion that there is no probable cause
            for such complaint, they shall dismiss the same, with
            reasonable costs to be assessed by the court.
16 P.S. § 1405(b) (emphasis added). However,
            it is well established that liability for any true crime, where
            an offense carries with it a jail sentence, must be based
            exclusively upon personal causation; imposition of liability
            pursuant to a respondeat superior theory is impermissible
            and unconstitutional. . . . Section 1405 [of the Code] does
            not provide for guilt on the basis of vicarious liability,
            [because] it provides for imprisonment not exceeding one
            year[.]

Leventry v. Tulowitski, 804 A.2d 1281, 1284-85 (Pa. Cmwlth. 2002) (bold emphasis
added).
            In the instant case, the only parties named in the Complaint’s caption are
the District Attorney’s Office and Zappala. Notwithstanding, Brooks alleges in the
Complaint’s body that ADA Fagan and Assistant District Attorney Peter Dixon
(ADA Dixon) are also parties, thereby implying that the District Attorney’s Office
and Zappala are liable based on ADA Fagan’s and ADA Dixon’s actions. See




                                          4
Complaint ¶¶ 5, 6. Indeed, there are only two Complaint allegations that reference
Zappala.8
              “Because Section 1405 [of the Code] does not provide for guilt on the
basis of vicarious liability, . . . [Brooks] could not establish probable cause based on
[the District Attorney’s Office’s9] supervision of [ADAs Fagan and Dixon].”
Leventry, 804 A.2d at 1285.           Under the circumstances, the trial court did not
circumvent Section 1405(b) of the Code by dismissing the Complaint without a
probable cause hearing.
              Brooks next contends that the trial court erred when it determined that
Brooks’ Complaint was frivolous. We disagree.                  Pennsylvania Rule of Civil
Procedure No. 240(j)(1) provides in pertinent part:

              If, simultaneous with the commencement of an action or
              proceeding or the taking of an appeal, a party has filed a
              petition for leave to proceed in forma pauperis, the court
              prior to acting upon the petition may dismiss the action,
              proceeding or appeal if the allegation of poverty is untrue or
              if it is satisfied that the action, proceeding or appeal is
              frivolous.
                   Note: A frivolous action or proceeding has been
                   defined as one that ‘lacks an arguable basis either in
                   law or in fact.’ Neitzke v. Williams, 490 U.S. 319,
                   [326] . . . (1989).

Pa.R.C.P. No. 240(j)(1).
              Here, Brooks claims that his Complaint avers that he is a victim of a
criminal conspiracy among city detectives, district attorneys and the coroner’s office
to punish and penalize him for refusing to cooperate with city detectives and district
attorneys. He maintains that they willfully framed him. He further claims that

       8
         Both allegations, which will be discussed more fully herein, aver that Zappala did not
respond to Brooks’ letters. See Complaint ¶¶ 16, 33.
       9
         Clearly, Zappala, although a named party, cannot be vicariously liable because he was not
the County District Attorney at the time of the ADAs’ service.
                                                5
Zappala was made aware of this manifest injustice when both Brooks and the
Pennsylvania Innocence Project informed Zappala that he possessed evidence, to
which Brooks was entitled, but which Zappala’s predecessors refused to disclose in
an effort to conceal the criminal conspiracy, police/coroner misconduct and
miscarriage of justice. Brooks also contends that his Complaint declares that Zappala
ignored   the   evidence,   refused   to    cooperate,   and   failed   to   turn   over
exculpatory/mitigating evidence and to investigate. Thus, Brooks argues that his
Complaint is not frivolous because its averments establish an arguable basis in law
and fact that Zappala’s actions amount to willful, gross negligence of office in
violation of Section 1405(a) of the Code.
            Section 1405(a) of the Code provides:
            If any district attorney shall wilfully and corruptly demand,
            take or receive any other fee or reward than such as is
            prescribed by law for any official duties required by law to
            be executed by him in any criminal proceeding, or if such
            district attorney shall be guilty of wilful and gross
            negligence in the execution of the duties of his office, he
            shall be guilty of a misdemeanor in office, and, on
            conviction thereof, be sentenced to pay a fine not exceeding
            one thousand dollars and to undergo imprisonment not
            exceeding one year, and his office shall be declared vacant.

16 P.S. § 1405(a) (emphasis added). Only two of Brooks’ 48 allegations in the
Complaint concern Zappala:
            16. [Brooks] sent several letters to [Zappala] informing him
            [as] to what had occurred and explaining to him [Brooks’]
            innocence. [Brooks] requested of [Zappala] to review the
            record and would clearly discover [sic] that [Brooks] is a
            victim of a conspiracy and manifest injustice. [Zappala]
            willfully ignored [Brooks’] letters and his duty as the
            District Attorney. Brooks also asked the Pennsylvania
            Innocence Project who is reviewing his case to request




                                            6
               these materials from [Zappala] and their [sic] request was
               denied. (See Exhibit ‘B’).[10]
               ....
               33. [Zappala] is continuing the conspiracy and willful gross
               negligence. [Brooks] wrote him six times explaining to him
               that he is a victim of a police, coroner, district attorney
               conspiracy, that he was wrongfully convicted and actually
               innocent of the crime [for which] he was convicted. He
               [asked] [Zappala] to look at the probable cause affidavit,
               arrest warrant, grand jury transcript, coroner hearing, voir
               dire and sentencing transcript and the affidavit [Exhibit ‘A’]
               of Attorney Michael J. Healey.[11] When [Brooks] got no
               response from [Zappala], he sent him several more letters
               explaining to him that the particulars he asked him to
               review, were never turned over to him. [Brooks] then
               [asked] [Zappala] if he would furnish him with all or some
               of the particulars because he had the P[ennsylvania]
               Innocence Project investigating his innocence evidence.
               [Zappala] ignored [Brooks] again. [Brooks] then asked the
               P[ennsylvania] Innocence Project to ask[] [Zappala] for said
               particulars but [Zappala] would give them no help. [Exhibit
               ‘B’] [Zappala] is not at liberty to keep in place willful
               and gross negligence started and put in place by his
               predecessors. It is as much his duty to refrain or to keep
               in place improper actions calculated or started by his
               predecessors that produced a wrongful conviction as it is
               for him to use every legitimate means to bring about a
               just result or to undo a manifest injustice.

Complaint ¶¶ 16, 33 (emphasis added). Viewing the Complaint’s allegations as true,
we hold that Zappala ignoring Brooks’ letters does not permit an arguable basis in
law or fact that Zappala was willfully or grossly negligent in the execution of the


       10
           Complaint Exhibit B is a letter from the Pennsylvania Innocence Project to Brooks
concerning its representation of Brooks. It contains the following relevant sentence: “I still have
not received any word back from Michael Healey, and the [County] District Attorney’s Office was
unhelpful.” Complaint Ex. B at 1.
        11
           The Affidavit of Michael J. Healey essentially states that Brooks’ attorney received the
Coroner’s Inquest Transcript from Brooks, but the transcript was not included in the record received
from the trial court. Further, Healey maintains in his Affidavit that the jury voir dire transcript was
not a part of the trial court record. See Complaint Ex. A.
                                                  7
duties of his office. Those allegations, in and of themselves, establish nothing more
than that Zappala did not respond to Brooks’ review request letters. Because the
Complaint contains no arguable basis in law or fact, the trial court did not err by
declaring that Brooks’ Complaint was frivolous.
            Based on the foregoing, the trial court’s order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge


Judge McCullough did not participate in the decision in this case.




                                          8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


George Rahsaan Brooks,                 :
                          Appellant    :
                                       :
                   v.                  :
                                       :
Office of the District Attorney        :
and District Attorney,                 :   No. 12 C.D. 2016
Stephen A. Zappala                     :



                                      ORDER


             AND NOW, this 14th day of September, 2016, the Allegheny County
Common Pleas Court’s August 6, 2015 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
