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: HONORA BLE 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 Alleghe ny 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. B rooks presents two issues for this C ourt’s review: (1)

whether the trial court erred by circumventing Section 1405 (b) of T he County Code

(Code) ; 1 and (2) whether the trial court erred by declaring that Brook s’ Complaint

was frivolous . After r eview, we affirm.

On September 30, 1975, Brooks was arrested. 2 Brooks further alleges in

the Complaint that o n October 1, 1975, Detective Robert Spozarski (Detective

1 Act of August 9 , 195 5, P.L. 3 23, as a mended

, 16 P.S. § 1405(b).

2 According to the Complaint the arr est w as “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 are2

Spozarski) arrested Brooks for the assault and robbery of Michael Miller (Miller). 3

Acc ording 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 a vers that Detectives Spozarski, Charles L enz (Lenz ), Pharris H utton

(Hutton), Robert McKay (McK ay), Frank Amity (Amity) and Josep h G . Stotlrmyer

(Stotlrmyer) questioned him on sev eral occasions at police headquarters about

“ F reddy” and about identify ing “ F reddy” from a photo array

, but B rooks refused

, stating he would not talk without a w arrant 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 C omplaint 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

, t h ereby

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 Act 5

(] PCRA [)] Petitions.” 6 Trial Ct. Op. at 1. According to the Complai nt, B rooks s ent

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 J ury. 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. Th e record does not indicate on what charges he was sentenced, although Defendants’ brief states that Brooks was convicted of robbery and murder in 1 980

. 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 murd er of the second degree for the robbery and death of M i ller. “ 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 recor d , although Defendants’ brief

reference s 11 previous PCRA petitions. See Defendants’ Br. at 3.3

record

. See Complaint ¶ 16. Those requests w ere denied. See Complaint ¶ 16.

Thereafter, Brooks asked the Pennsylvania Innocence Project to request materials

from Zappal a on his behalf

, but those request s w ere also denied. See Complaint ¶ 16

.

On January 26, 2015, Brooks file d a Miscond uct C omplaint against

prior

- County D istrict Attorney Dugan (Dugan) and Assistant District Attorney

Edward Fagan (ADA Fagan) for conspiri ng 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

, o n July 15, 2015 , Brook s filed the Complaint

“request[ing] that [D]efendants be prosecuted by the C ommonwealth, 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 L eave to Proceed In Forma Pauperis . On August 6, 2015, the trial court

dismissed the C omplaint 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 “ do es not apply to counties of the first, second A, or

second classes. ” 16 P.S. § 102. Allegheny County is a second class county. See

D eFazio v. Civil Serv. Comm’n of Allegheny Cnty

. , 756 A.2d 1103 (Pa. Cmwlth.

2000). Thus, Section 1405(b) of the Code doe s not apply to Zappala.

7 “Our scope of review is limited to determining whether constitutional rights have been
violated, whether the t rial 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).4 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
Commonwea lth, 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 th e 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 pro bable 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,

i t is well established that liability for any true crime, whe re 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. Tul o witski, 804 A.2d 1281, 1284

- 85 (Pa. Cmwlth. 2002) ( bold emphasis

added).

In the instant case, the only parties named in the Compl aint ’s caption are

the District Attorney’ s O ffice and Zappala. Notwithstanding , Brooks alleges in the

Complaint’s body that ADA Fagan and Assistant District Attorney Peter Dixon

(ADA Dixon) are also parties , t h ereby implying that the District Attorney’s O ffice

and Zappala a

re liable based on ADA Fagan’s and ADA Dixon’s actions. Se e5

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’s 9 ] supervision of [ADA s Fagan and Dixon ]

. ”

Leventry

, 804 A.2d at 1285. Under the circumstances , the trial court did not

circumvent Section 14 05(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 N o. 240(j) (1) provi des 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,

pr oceeding 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.’ Nei tzke 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 penal ize 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

, c an not be vicariously liable because he was not

the C ounty D istrict A ttorney at the time of the ADAs ’ service

.6

Zappala was made aware of this manifest injustice when both Brooks and the

Pennsylvania Innocence Project i nformed 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 conten ds that his Complaint declares that Zappala

ignored the evidence, refused to cooperate

, and failed to turn over

exculpatory/mitigating evidence and to investigat e

. Thus, Brooks argues that his

Complaint is not frivolous because its averments establish an arguabl e 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 a ny 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. § 140 5(a) (emphasis added). O nly 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 Pro

ject who is reviewing his case to request7 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 [E x hibit ‘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 partic ulars 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 particul a rs because he had the P [ennsylvania] Innocence Project investigating his innocence evidence. [Zappala] i gnored [Brooks] again. [Br o oks] 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 starte d 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 ju st result or to undo a manifest injustice

.

Complaint ¶¶ 16, 3 3 (emphasis added). Viewing the Complaint’s allegations as true,

we hold that Zappala ignor ing Brooks’ letters does not permit an arguable basis in

law or fact that Zappala was willfully or gro ssly negligent in the execution of the

10 Complaint Exhibit B is a letter from the Pennsylvania In nocence Project to Brooks concerning its representation of Brooks. It cont ains 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. Heal e y 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, Heal e y maintains in his Affida vit that the jury voir dire transcript was not a part of the trial court r e cord. See Complaint Ex. A.8

duties of his office. Th ose 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 f act, 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 Mc Cullough did not participate in the decision in this case.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George Rahsaan Brooks, : Appellant :

:

v. :

: Office of the District Attorney : and District Attorney, : No. 12 C.D. 2016
S tephen A. Zappala :

O R D E R

AND NOW, this 14 th day of September , 201 6

, the Allegheny County

Common Pleas Court’s August 6, 2015 order is affirmed.

___________________________ ANNE E. COVEY, Judge