J-S67015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: EMIL SFEDU                       :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: EMIL SFEDU                   :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 3847 EDA 2016

              Appeal from the Order Dated October 20, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-MD-0004757-2016


BEFORE:   GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                 FILED NOVEMBER 17, 2017

     Emil Sfedu, Appellant, appeals from the order entered in the Court of

Common Pleas of Philadelphia County denying his petition for review of his

private criminal complaint. We affirm.

     The lower court sets forth the underlying facts and procedural history:

     Petitioner [hereinafter “Appellant”] filed a Private Criminal
     Complaint (“PCC”) with the Philadelphia District Attorney’s Office
     against [his brother] George Sfedu for, inter alia, Theft by
     Deception. The basis for Appellant’s allegation is that George
     Sfedu received unclaimed property [not included within their
     father’s estate] in the amounts of $3,184.48 and $548.91, half of
     which was allegedly required to be distributed to Appellant.
     Further, Appellant alleged that George Sfedu violated the
     following statutes: 20 Pa.C.S.A. § 3101(e)(1), (2) and (3)—
     Payments to family and funeral directors—Unclaimed Property; 18
     Pa.C.S.A. § 3922, Theft by Deception; 18 Pa.C.S.A § 3921, Theft
     by Unlawful Taking; 18 Pa.C.S.A. § 3927, Theft by Failure to Make
     Required Disposition of Funds Received; and 18 Pa.C.S.A. § 3924,
     Theft by Property Lost, Mislaid or Delivered by Mistake.



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67015-17


      In support of his PCC, Appellant alleged that he was the executor
      of his parents’ estate and distributed the estate proceeds pursuant
      to their will, which bequeathed an equitable division between
      Appellant and George Sfedu.              Appellant claimed that,
      unbeknownst to him, George Sfedu contacted the Pennsylvania
      Treasury’s Bureau of Unclaimed Property and submitted a claim
      on behalf of Appellant’s parents. Appellant asserted that George
      Sfedu executed a document, a copy of which was attached to his
      petition, indicating that Appellant was also entitled to claim the
      property. However, Appellant asserts that George Sfedu never
      made this distribution to him. Appellant then filed the PCC at issue
      in this appeal.

      The Philadelphia District Attorney’s Office declined to adopt the
      PCC and prosecute George Sfedu. Appellant, through the District
      Attorney’s Office’s internal procedures, requested a review/appeal
      of the PCC, which was again declined. Appellant appealed this
      decision, which was reviewed and denied by the Municipal Court,
      on August 15, 2016. Appellant then appealed that decision to [the
      Court of Common Pleas.]

Trial Court Opinion, filed February 13, 2017, at 1-2.

      By Order of October 20, 2016, the lower court denied Appellant’s

petition, determining that Appellant failed to establish as a matter of law that

George Sfedu acted intentionally, knowingly, or recklessly with respect to the

property. This timely appeal followed.

      Appellant presents the following question for our review:

      DID THE COMMONWEALTH ABUSE ITS DISCRETION BY
      DISALLOWING EMIL SFEDU’S PRIVATE CRIMINAL COMPLAINT
      WITHOUT ARTICULATING ANY VALID POLICY REASONS FOR
      DOING SO?

Appellant’s brief at 5.

      Our standard of review for a trial court’s denial of review of the

Commonwealth’s approval or disapproval of a private criminal complaint is

well-settled:

                                     -2-
J-S67015-17



     Consistent with established Pennsylvania law in general, we now
     hold that 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.

     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.

     The private criminal complainant has the burden to prove the
     district attorney abused his discretion, and that burden is a heavy
     one…. [T]he 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. 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”).
     See also Commonwealth v. Ruby, 838 A.2d 786 (Pa.Super.
     2003).


                                      -3-
J-S67015-17


      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. See [Commonwealth
      v.] McGinley, [673 A.2d 343 (1996) (en banc) (plurality)]. The
      complainant must create a record that demonstrates the 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.

In re Wilson, 879 A.2d 199, 214-215 (Pa.Super. 2005) (en banc).

      At the October 6, 2016 hearing on Appellant’s motion, both Appellant

and the trial court agreed that if Appellant’s case implicated any of the above-

cited offenses alleged it was 18 Pa.C.S.A. § 3927, Theft By Failure to Make

Required Disposition of Funds Received. N.T. 10/6/16 at 9-10. Section 3927

provides as follows:

      § 3927. Theft by failure to make required disposition of
      funds received

      (a) Offfense defined.—A person who obtains property upon
      agreement, or subject to a known legal obligation, to make
      specified payments or other disposition, whether from such
      property or its proceeds or from his own property to be reserved
      in equivalent amount, is guilty of theft if he intentionally deals with
      the property obtained as his own and fails to make the required
      payment or disposition. The foregoing applies notwithstanding
      that it may be impossible to identify particular property as
      belonging to the victim at the time of the failure of the actor to
      make the required payment or disposition.

18 Pa.C.S.A. 3927.



                                       -4-
J-S67015-17




       The trial court determined that even if the district attorney disapproved

Appellant’s complaint for strictly legal reasons,1 the allegations against George

Sfedu failed to establish a prima facie case of a Section 3927 offense, as was

Appellant’s burden from the outset.            This was so, opined the court, where

nowhere in either the complaint or at the hearing did Appellant address how

George Sfedu intentionally, knowingly, or recklessly failed to make the

required payments or disposition of the property.

       Indeed, the court observed, George Sfedu acknowledged on the claim

form that Appellant was entitled to a share of the unclaimed property, and

Appellant never alleged that he asked for the money or that George Sfedu


____________________________________________


1 We note, additionally, that both parties and the court acknowledged, at the
hearing, a policy component to the district attorney’s explanation for
disapproving Appellant’s private criminal complaint. Specifically, the district
attorney’s office advised the court of its position that a family matter involving
an allegedly improper distribution of a decedent’s property was more a civil
law concern better left to the orphan’s court, where Appellant could
appropriately seek redress. N.T. 10/6/16 at 6-7, 13-14, 15.

Given the familial nature of the dispute and the availability of a civil remedy,
the district attorney’s position reflected the exercise of sound discretion, even
if the alleged facts could have made out a prima facie case under Section
3927. See In re Wilson, 879 A.2d at 211-212 (recognizing district attorney
not obligated to bring private criminal complaint simply because facts recited
in complaint make out prima facie case, and may exercise sound discretion to
refrain from prosecution in good faith belief that prosecution would not serve
best interests of state). The trial court, therefore, could have properly applied
a deferential abuse of discretion standard of review to the district attorney’s
decision. In turn, our appellate review of the trial court’s decision would also
be for abuse of discretion, which we would find to be absent for the foregoing
reasons.


                                           -5-
J-S67015-17



refused the request. “[A]ppellant’s only contention is that he did not receive

the money. There are many possible reasons that this occurred, and Appellant

has not, even at a prima facie level, established the criminal intent required

to meet the elements in the statute.” Trial Court Opinion, at 4-5.

      We discern no error of law with the trial court’s assessment of the

sufficiency of Appellant’s case under Section 3927, supported as it was by the

court’s thorough inquiry undertaken at the October 6, 2016, hearing on

Appellant’s motion. Accordingly, we affirm.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2017




                                    -6-
J-S67015-17




              -7-
