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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

IN RE: PRIVATE CRIMINAL COMPLAINT PETITION OF PAUL A. BROWN

APPEAL OF: PAUL A. BROWN :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 189 EDA 2021

Appeal from the Order Entered July 30, 2020 In the Court of Common Pleas of Monroe County Criminal Division at

No(s): CP

- 45

- MD

- 0000275

- 2020

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J. *

MEMORANDUM BY BOWES, J.: FILED DECEMBER 09, 2021

Paul A. Brown appeals from the order that denied his petition for review

of a private criminal complaint pursuant to Pa.R.Crim.P. 506 . We affirm.

The trial court offered the following factual summary of this case.

On May 4, 2020, [Appellant] filed private criminal complaint #1682 with the Monroe County Office of the District Attorney alleging d efendant Diana Brown knowingly gave false information to authorities . . . . [Appellant] asse rts Ms. Brown made false
statements against him in connection with a divorce proceeding. 1 Specifically, [Appellant] denotes four counts in his Complaint against Ms. Brown: (1) [she] made an unswo rn falsification in her complaint in divorce; (2) [she] improperly filed an affidavit relating to pending divorce proceedings; (3) [she] “ knowingly and intelligently committed perjury in order for the court to grant her divorce; ” and (4) [she] committed forgery by executing her

a ttorney ’ s signature without authorization.

______

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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- 1 Notably, [Appellant] file [d] his Private Criminal Complaint against his ex

- wife Diana Brown, who was the victim in a criminal case where [Appellant] pleaded guilty to one count each of attempted homici de and aggravated assault. [Appellant] disfigured Ms. Brown ’ s hand, gashed the back of her head, and severed her ring finger with a machete.

On May 11, 2020, the Office of the District Attorney issued a disapproval of private criminal complaint #1682 (he reinafter

“ notice of disa pproval ” ). The notice of disapproval cited the following reasons: “ (1) Matter was not reported to police for investigation; (2) The facts of the alleged offense are inadequately described; (3) Criminal prosecution is not warrante d based on the alleged facts; (4) The statute of limitations has expired on the alleged crime; and (5) It is not in the best interest of the Commonwealth to pursue this matter. ” [Appellant], an inmate at SCI Smithfield, received the notice of disapproval and timely filed

a pro se Rule 506 Petition for review of private criminal complaint with th[e trial] court on June 1, 2020.

Trial Court Opinion, 7/30/20, at 1

- 2 ( c leaned up ).

The trial court reviewed the private criminal complaint and the exhibits

attac hed thereto and issued an opinion and order denying Appellant ’ s petition

for review. Appellant filed a timely notice of appeal to this Court, and both

Appellant and the trial court complied with Pa.R.A.P. 1925. 1 After noting that

Appellant ’ s private cri minal complaint was not included in the certified record,

this Court directed the trial court to supplement it to include all materials

_________________ __________ ______ ____ _______

1 Appellant submitted the notice of appeal, which was dated August 27, 2020, and was attached to a motion to proceed in forma pauperis , to prison authorities for mailing no later than August 28, 2020, which is the date of the mailing’s postmark. Accordingly, the notice of appeal was timely filed. See

, e.g. , Commonwealth v. Betts , 240 A.3d 616, 620 n.4 (Pa.Super. 2020) (explaining that, pursuant to the prisoner mailbox rule, “submissions from an incarcerated litigant are deemed to be filed when deposited into the prison mailing system, or handed over to prison officials for mailing”).J

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which it reviewed in making its determination. Having obtained the

supplemental certified record from the trial court, this appeal is ripe for

resolution.

Appellant states the following questions for our review :

1. Whether the trial court erred when it denied [Appellant] ’ s notice of appeal/petition for review without first ordering [Appellant] to file brief where he could provide verified proof, legal argument and proof of bad faith by the Assistant District Attorney, thus depriving [Appellant] of his right to fairly raise his meritious [ sic ] issues in the trial court.

2. Whether the trial court erred when it denied [Appellant] ’ s notice of appeal/petition for review when the Assistant District Attorney ’ s reasons for denial of private criminal complaint # 1682 was in part f or (1) matter was not reported to the police, (2) the statue of limitation has expired on the alleged crimes and (3) it is not in the best interest of the Commonwealth to pursue this matter, same reasons in part for his denial of private criminal complaint # 1672 for the same accused, was plainly erroneous and done in bad faith.

Appellant ’ s brief at iv.

We begin our consideration of Appellant ’ s questions with our standard

of review: 2

_________________ __________ ______ ____ _______

2 Appellant claims that he presents us with a due process question of law subject to de novo , plenary review. See Appellant’s brief at iii. “We have held that the provision in [Pa.R.Crim.P. 506] allowing an appeal of the district attorney ’ s disapproval of such charges to the court constitutes sufficient checks and balances upon the district attorney's actions to comply with constitutional due process requirements.” In re Private Complaint of Owens Against Coker , 810 A.2d 172, 177 (Pa.Super. 2002) (cleaned up). Since Appellant does not complain that the Rule was not followed, due process is not implicated.J

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Appellate examination of a trial court ’ s review of the District Attorney ’ s decision to disapprove a private criminal complaint implicates the following:

When the district attorney disapproves a private criminal complaint solely on the basis of legal conclusions, the trial court undertakes de novo review of th e 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 disa pproves 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.

In re Miles , 170 A.3d 530, 534

– 35 (Pa.Super. 2017) (cleaned up).

As detailed above, the district attorney supplied multiple reasons for its

disapproval, including both legal and policy considerations. See Trial Court

Opinion, 7/30/20, at 2 (quoting Notice and Record of Disapproval of Private

Criminal Complaint, 5/11/20). Accordingly, the following legal principles

govern our examination of Appellant ’ s issues:

[T] he appellate court will review the trial court ’ s decision for an abuse of discretion, in keeping with the settled principles of appellate review of discretionary matters

. The district attorney ’ s decision not to prosecute a crimin al complaint for reasons including policy matters carries a presumption of good faith and soundness. The complainant must create a record that demonstrates the contrary. Thus, the appropriate scope of review in policy

- declination cases is limited to whet her the trial court misapprehended or misinterpreted the district attorney ’ s decision and/or, without a legitimate basis in the record, substituted its judgment for that of the district attorney. We will not disturb the trial court ’ s decision unless the r ecord contains no reasonable grounds for the court ’ s decision, or the court relied on rules of lawJ

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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.

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

a mounted 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.

In re Private Criminal Complaints of Rafferty , 969 A.2d 578, 581

– 82

(Pa.Super. 2009) (cleaned up)

.

Appellant argue s that the district attorney ’ s office “ had ample

kn owledge of acts committed by Diana Brown but denied Appellant ’ s private

criminal complaint in bad faith, ” such as by erroneously indicating (1) that the

statute of limitations had expired when it had not at the time Appellant filed

the complaint, and (2) t hat Appellant had not notified the police of the crimes

for investigation when he served the police with the private criminal complaint

simultaneously with providing it to the district attorney. See Appellant ’ s brief

at 6, 8

- 10. Notably, Appellant does n ot provide argument to dispute the other

reasons offered by the district attorney, namely that Appellant offered an

inadequate description of the facts, that the facts alleged did not warrantJ

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prosecution, and that prosecution was not in the best interest o f the

Commonwealth.

The trial court offered the following explanation for its denial of

Appellant ’ s petition:

In the instant case, to the extent it may be understood, [Appellant]’ s private criminal complaint fails to set forth a coherent basis upon whi ch a criminal prosecution could be initiated. I n fact, his claims appear wholly frivolous and entirely devoid of merit.

[Appellant] first contends Ms. Brown made an unswo rn falsification to authorities when she filed a complaint in divorce on November 3 0, 2017 stating, “ There is currently no pending action of divorce or annulment betwe en the parties

. ” See Complaint in Divorce, 8963 CV 2017, 11/30/17. [Appellant] believes this constitutes an unsworn false statement pursuant to 18 Pa.C.S. § 4904(a). In support, [Appellant] offers an alleged petition for dissolution of marriage filed with the Supreme Co urt of Jamaica ( “ Jamaican Petition ” ) on December 22, 2008. Notably, [Appellant] concedes the Jamaican Petition was not granted, and that he w as lawfully married at the time Ms. Brown filed the complaint in divorce in Monroe County. Thus, [Appellant] argues

a divorce was pending in Jamaica at the time Ms. Brown filed the complaint in divorce

.

This claim is wholly frivolous and devoid of merit

. At a hearing for the action in divorce , Judge Jennifer Harlacher Sibum asked Ms. Brown, “ One of the other allegations in the many filings that Mr. Brown put to the c ourt was that the two of you have a pending divorce in Jamaica, is that true? ” N.T. 3/2 9/19, 8963 CV 2017, [at] 9. Ms. Brown responded, “ There is no pending divorce. I initiated a divorce in 2008 that was discontinued when Mr. Brown returned to the picture in 2010. ” Id

. After consideration, Judge Sibum concluded, “ All [the Jamaican Petit ion] tells me is that there have been problems in this marriage for a long time and they clearly haven ’ t gotten any better. ” Id . at 22. There is no evidence submitted to rebut Ms. Brown ’ s characterization of the Jamaican Petition, and w e find no basis in the alleged facts to warrant criminal prosecution.J

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- Next, [Appellant] contends, “ On January 24, 2018, [Ms.] Brown filed an affidavit under section 3301(d) of the Divorce code

. Ms. Brown ’ s affidavit was made subject to 18 Pa.C.S. § 4909, i

. e

. Witness or informant taking b r ibes but should have been made subject to 18 Pa.C.S. § 4904 relating to unswo rn falsification to authorities

. ’’ At most, this allegation amounts to a ministerial

error. [Appellant]’ s belief that a ministerial error amounts to

“ fraud upon the court ” is wholly frivolous and devoid of merit.

[Appellant]’ s third allegation returns to the Jamaican
Petition. Specifically, [Appellant] argues “ On March 29, 2019, Ms.
Brown te stified under oath that she don ’ t recall that she has not actually seen the Jamaica Petition. Ms. Brown further testified that she put the divorce on hold but provide [d] no verified proof. ” As a result, “ Ms. Brown knowingly and intelligently committed

pe rjury in order for the court to grant her divorce. ” For the reasons discussed, supra , this argument is without merit. Ms. Brown was extensively questioned and cross

- examined in the divorce action before Judge Sibum. [Appellant] presents no evidence what soever to support his bald assertions. Even a cursory review of the hearing before Judge Sibum reveals Ms. Brown to be a credible witness attempting to begin a new life after

a violent attack by her ex

- husband.

Finally, [Appellant] contends Ms. Brown forged her attorney ’ s signature, asserting “ On January 24, Ms. Brown filed an affidavit with attached Certificate of Compliance upon close inspection [ of] Attorney Strunk ’ s handwriting and signature were forged. ” [Appellant] offers no evidence to support this claim beyond a cut and copied comparison, without context or explanation, of Attorney St runk ’ s cursive signature and a printed signature. As such, this claim lacks merit and criminal prosecution is not warranted under the facts alleged.

Here, the district attorney disapproved the private criminal complaint on [the five aforementioned grou nds]. Based on o ur review, the facts of the case do not lead only to the conclusion that the district attorney ’ s decision was patently discriminatory, arbitrary or pretextual. To the contrary, the facts here demonstrate wholly frivolous claims devoid of merit. As such, w e see no basis in fact or law to initiate a criminal prosecution. 2

______ 2 We note that we need not reach the question of whether the statute of limitations has expired on the alleged crime.J

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- Pursuant to 42 Pa.C.S. § 5552(B)(l), the alle ged crimes likely fall within the five year limitation. However, because [Appellant]’ s claim is entirely devoid of merit, and because we find the District Attorney did not abuse his discretion in declining to initiate prosecution, we are not required to

r each a legal conclusion on this issue.

[Appellant]’ s claims are devoid of merit and certainly do not meet the heavy burden of demonstrating the district attorney ’ s decision amounted to bad faith , fraud or unconstitutionality. We recognize the importance of prosecutorial discretion and the district att orney ’ s duty to conserve and devote the resources of his office to cases in which there is a likelihood of a conviction. As such, the district attorney ’ s decision not to prosecut e a private criminal complaint for reasons including policy matters carries a presumption of good faith and soundness. Here, w e will not disturb the sound judgment of the district attorn ey. As a result, [Appellant]’ s petition is denied

.

Trial Court Opini on, 7/30/20, at 5

- 8 (cleaned up)

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Appellant has offered this Court no basis to conclude that the trial court

“misapprehended or misinterpreted the district attorney’s decision,” or that its

decision lacked “a legitimate basis in the record.” Rafferty

, supra at 581.

On the contrary, the trial court clearly examined the evidence proffered by

Appellant and stated reasonable grounds for its conclusion that several of the

bases stated by the district attorney were sufficient to justify its decision.

This Court has observed that, “ [b] oth the district attorney and the trial court

have a responsibility to prevent the misuse of judicial and prosecutorial

resources in the pursuit of pointless prosecutions. ” In re Miles

, supra at

535

. We are convinced that b oth have satisfied that responsibility in the

instant case.

Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/9/2021