J-A27019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: PRIVATE CRIMINAL COMPLAINT                 IN THE SUPERIOR COURT OF
OF ERIC G. MARTTILA                                     PENNSYLVANIA




APPEAL OF: ERIC G. MARTTILA
                                                      No. 3526 EDA 2015


                     Appeal from the Order October 19, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-MD-0001522-2015


BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 05, 2017

        Eric G. Marttila, Esquire, appeals from the order, entered in the Court

of Common Pleas of Bucks County, which denied his petition for review of

the Bucks County District Attorney’s decision to disapprove his private

criminal complaint. Upon review, we affirm.

        The trial court summarized the relevant facts of this matter as follows:

        [Attorney Marttila] represented Paul Bradberry in two criminal
        actions wherein Bradberry was charged with [r]esisting [a]rrest,
        [d]isorderly [c]onduct, [p]ublic [d]runkenness, and [c]riminal
        [m]ischief in relation to a March 17, 2013 incident. After a
        bench trial before this [c]ourt, Bradberry was found not guilty of
        each charge on November 12, 2013. In acquitting Bradberry,
        this [c]ourt accepted Bradberry’s testimony and further found
        Officer Keith [Dietz] of the Doylestown Borough Police
        Department, who was the affiant and Bradberry’s arresting
        officer, to be less than forthright in his testimony before the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     [c]ourt.   Specifically, we noted in delivering the verdict of the
     [c]ourt:

        [I]t’s a difficult case, not because it’s difficult for me to
        decide what the true facts are and what really happened,
        it’s difficult for me because I have to accept the fact that
        these things happened here in Bucks County in Doylestown
        Borough. . . . [I]t’s shocking. For me to suggest [] that
        Officer [Dietz] was mistaken would be a [] miscarriage of
        my oath of office.

                                    ...

        [I]n attempting to reconcile the evidence and the
        testimony of all [of the] witnesses, I have come to the
        inescapable conclusion that Officer [Dietz] was anything
        but candid with this [c]ourt in his testimony, in his reports
        and in the evidence that he presented. That evidence is
        contrary to the evidence of the other officers and by all
        means contrary to the testimony of the defendant or the
        defendant’s witnesses. And for what it’s worth, [] I accept
        the testimony of Mr. Bradberry in its entirety in my
        determination of whether the Commonwealth has met its
        burden of proof in this matter.

     N.T. [Trial, 11/13/13, at] 260-62.

     As a direct result of the evidence presented and reports prepared
     in Bradberry’s case, [Attorney Marttila] filed a private criminal
     complaint in District Court on January 30, 2015[,] charging
     Officer [Dietz] with multiple counts of [p]erjury, [f]alse
     [s]wearing, [u]nsworn [f]alsification to [a]uthorities, and [f]alse
     [r]eports to [l]aw [e]nforcement [a]uthorities that arose from
     seven (7) alleged criminal acts.        In support of the above
     charges, [Attorney Marttila] specifically referenced Officer
     [Dietz’s] testimony at trial, during the two (2) separate
     preliminary hearing[s], and during a deposition in a civil matter
     arising from the Bradberry case, along with Officer [Dietz’s]
     prepared reports, including his Affidavit of Probable Cause and
     Supplemental Narrative Report. In a letter dated May 29, 2015,
     the District Attorney of Bucks County, David W. Heckler,
     disapproved of the charges in [Attorney Marttila’s] Complaint,
     citing a lack of prosecutorial merit and insufficient evidence.

     On June 16, 2015, [Attorney Marttila] filed with this [c]ourt a
     “Petition for Review of Decision by the District Attorney of Bucks

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      County to Disapprove Private Criminal Complaint Pursuant to
      Pa.R.C.P. 506(b)(2).”       A hearing was held on [Attorney
      Marttila’s] Petition on September 3, 2015, during which
      argument was presented by both [Attorney Marttila] and Mr.
      Heckler and additional evidence, unavailable during trial, was
      added to the record. On the basis of the argument presented
      and a detailed review of the record, this [c]ourt denied [Attorney
      Marttila’s] Petition on October 19, 2015. [Attorney Marttila] filed
      at timely Notice of Appeal to the Superior Court on November
      18, 2015[,] from this [c]ourt’s [d]enial of his Petition.

Trial Court Opinion, 2/9/16, at 1-3 (footnotes omitted).

      On appeal, Marttila raises the following issues for our review:

      1. Did the trial court err in failing to correctly identify the nature
         of the District Attorney’s reasons for acting or failing to act?

      2. Did the trial court err in failing to apply a de novo standard of
         review?

      3. Did the trial court err in failing to determine that the district
         attorney’s decision to disapprove the private criminal
         complaint in this case represented a deviation from moral
         rectitude and sound thinking, and, therefore, constituted an
         act of bad faith?

Brief of Appellant, at 2.

      Pennsylvania Rule of Criminal Procedure 506 provides for the

submission    of   private   criminal    complaints   to   an   attorney   for   the

Commonwealth, “who shall approve or disapprove it without unreasonable

delay.”   Pa.R.Crim.P. 506(A).          The rule further provides that “if the

Commonwealth’s attorney 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(B)(2).



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     In cases involving the disapproval of a private criminal complaint, the

review conducted by the trial court and our standard of review are

dependent upon the reason for disapproval.     “[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.”   In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en

banc) (emphasis in original). However,

     when the district attorney disapproves a private criminal
     complaint [wholly on] 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
     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 matter. 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

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      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.

Id. at 215 (citations and quotation marks omitted).

      Instantly, when the Commonwealth disapproved the complaint, it

noted that it was doing so because it had determined that insufficient

evidence existed in the case and because the matter lacked prosecutorial

merit.   As we noted in Commonwealth v. Metzker, 658 A.2d 800 (Pa.

Super. 1995),

      once the complaint establishes a prima facie case, the
      prosecutor cannot rest the disapproval on a legal assessment of
      the complaint. . . . The Commonwealth may exercise discretion
      . . . on the basis of policy. A determination that the case lacks
      “prosecutorial merit” is such a policy determination. Courts will
      not disturb that decision unless there is a gross abuse of
      discretion.

Id. at 801. The Commonwealth investigated the allegations against Officer

Dietz, determined that the case against him could not be successfully

prosecuted,     and   used   its   discretion   to   disapprove   the   complaint.

Accordingly, the trial court correctly applied an abuse of discretion standard

in reviewing the disapproval of the complaint. Wilson, supra. Therefore,

Attorney Marttila’s first two issues raised are without merit.

      In his final issue raised, Attorney Marttila asserts that the decision to

disapprove the complaint was an act of bad faith because it represented a

“deviation from moral rectitude and sound thinking.”         Commonwealth v.

Brown, 708 A.2d 81, 86 (Pa. 1998); see Brief of Appellant, at 27-28.

Attorney Marttila argues the disapproval of the complaint was an act of bad


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faith on several grounds. For the following reasons, we disagree as to each

ground upon which Attorney Marttila relies.

      The first instance of alleged falsification Attorney Marttila raises

involves sworn statements Officer Dietz made in the affidavit of probable

cause and in the police criminal complaint in the Bradberry case.        Officer

Dietz indicated that Bradberry tore his police badge off his uniform and

intentionally damaged it.    Attorney Marttila asserts that this was false,

because at Bradberry’s second preliminary hearing, Officer Dietz testified

that he did not know how the badge was removed or how it was damaged.

At trial, Officer Dietz testified that he did not see exactly how his badge was

destroyed, only affirming that he wore it prior to struggling with Bradberry

during his arrest and that afterward it was recovered from the scene in a

bent and damaged condition.         However, Officer Dietz added to this

explanation, saying that “[i]t’s my belief that he damaged the badge

somehow.    And it says [in the affidavit], to the best of my knowledge,

information and belief.” N.T. Trial, 11/12/13, at 147. Accordingly, the trial

court did not abuse its discretion in reviewing the policy decision of the

District Attorney. Metzker, supra.

      Attorney Marttila also asserts that Officer Dietz falsified a supplemental

narrative report by stating in it that during closing argument at a preliminary

hearing, Attorney Marttila had “made clear to [Magisterial District] Judge

[Mark D.] Douple that they were friends and had worked with each other for

a long period of time[.] . . .   [Attorney Marttila] continued to remind the

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Judge about their past working relationship.”                Supplemental Narrative

Report, Officer Keith Dietz, 4/20/13. However, at trial, Officer Dietz testified

that he wrote down only what he heard Attorney Marttila say and that he did

not believe any collusion to be taking place between Attorney Marttila and

Judge Douple.       N.T. Trial, 11/12/13, at 151, 160.                  Additionally, no

stenographer was present at the hearing, so no transcript exists and the

exact statements made during the hearing cannot be precisely proven.

Accordingly, we discern no abuse of discretion on the part of the trial court

in denying the petition. Metzker, supra.

       Next, Attorney Marttila claims that Officer Dietz lied under oath when

he testified to using his Taser on Bradberry and being “face-to-face, chest-

to-chest” when doing so.        See N.T. Preliminary Hearing, 8/27/13, at 68;

N.T. Trial, 11/12/13, at 124.           Attorney Marttila raises this argument

because of other testimony that Bradberry was facing away from Officer

Dietz during their interaction and because Bradberry suffered Taser burn

marks on his back.      We note that the “face-to-face” and “chest-to-chest”

language was that of Attorney Marttila during cross-examination, to which

Officer   Dietz   replied   affirmatively,   rather   than    being      Officer   Dietz’s

characterization of the situation.     Moreover, certain photographic evidence

came to light only after the conclusion of the Bradberry matter. As the trial

court noted, “[the four] photographs illustrate striation marks stretching

from Bradberry’s left chest, across his left side, and onto Bradberry’s back.

This   evidence    provides    reasonable    doubt    that    Officer    [Dietz    made]

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intentional   misstatements   in   his    description   of   his   encounter   with

Bradberry[.]” Trial Court Opinion, 2/9/16, at 9. Therefore, the trial court

did not abuse its discretion in denying the petition. Metzker, supra.

      Finally, Attorney Marttila argues that Officer Dietz lied in a deposition

in a related federal civil rights lawsuit, when he indicated that he had never

testified prior to that date to deploying his Taser into Bradberry’s back

because Attorney Marttila had interrupted him every time he testified and

had prevented him from doing so. Officer Dietz stated in the deposition that

when he deployed his Taser, it was on Bradberry’s left torso, which included

his front and back sides, but that “when [Attorney Marttila] got the answer

[he was] happy with, [he] cut [Officer Dietz] off and moved on.” Deposition

of Keith Dietz, 8/20/14, at 130. The very nature of this testimony indicates

that proving the charge would be difficult and it was not an abuse of

discretion for the trial court to deny the petition. Metzker, supra.

      For the foregoing reasons, we do not agree that disapproval of the

complaint was a “deviation from moral rectitude and sound thinking,”

Brown, supra, and we find that the trial court did not abuse its discretion in

denying Attorney Marttila’s petition for review of the disapproval of the

private criminal complaint. Wilson, supra.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2017




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