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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: DAVID C. NOWAKOWSKI

APPEAL OF: DAVID NOWAKOWSKI : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1426 WDA 2018 Appeal from the Order Entered September 18, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): MD 373

- 2018

BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 16, 2019 David Nowakowski appeals pro se from the order denying his petition for review of the Commonwealth’s disapproval his private criminal complaint. We affirm. On June 26, 2018, Nowakowski filed a Petition for Appeal of Disapproval under Pennsylvania Rule of Criminal Procedure 506(B)(2). 1 Now a kowski claimed that he had filed a private criminal complaint (hereinafter, “the Complaint”) with the Erie County District Attorney’s Office , which the Commonwealth had di sapproved on the basis that it lacked in prosecutorial merit. Nowakowski alleged that the Commonwealth failed to have an attorney review the Complaint; the Commonwealth had not explained in what way the

_________________ __________ ______ ____ _______ 1 The rule provides that if an attorney for the Commonwealth disapproves a private criminal complaint, the affiant may petition the court of common pleas for review of the decision. See Pa.R.Crim.P. 506(B)(2).J

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Complaint was deficient; and Nowakowski had discovered additional facts not included in the Complaint. Nowakowski did not attach a copy of the disapproved Complaint to his petition seeking review

. The trial court responded by sending a letter to Nowakowski, which it filed upon the docket. The letter informed Nowakowski that the court reviewed

“ the entire fil e at the Clerk of Courts Office” and found that “ there is no information filed by you supporting [ t his] request.” Letter, 7/18/18. The court allowed Nowakowski until August 21, 2018 , to file a sup plemental petition identifying the people Nowakowski wished to be charged, stating the ir alleged crimes, and explaining the factual allegations supporting those crimes. Nowakowski filed an additional document with the court titled “Re: Additional Facts for Affiant/Appellant

. ” Namely, Nowakowski claimed that members of the Carrara family had engaged in a p lan to harass and threaten him in retaliation for contacting the Pennsylvania Human Relations Commission regarding workplace harassment during his employme nt with Amthor Steel Company . Among other things, Nowakowski alleged , [D]uring the summer of 2018, a bullet was left on the [sidewalk] in front of [Nowakowski] as he walked his dogs. [Nowakowski] turned around to see that a teen[age] girl was standing on the roof of a nearby garage watching [Nowakowski] pick up the bullet. On the following day[,] a small metal trinket in the same shape as a glass design, which hangs in the sunroom of [Nowakowski’s ] mother’s home was found at the same location. Re: Addition al Facts for Affiant/Appellant at 9

- 10 (unpaginated). Nowakowski listed the charges as intimidation, intimidation of a witness, criminal contempt, involuntary servitude, inchoate crimes, criminal mischief,J

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and attempted murder. Nowakowski listed the defendants as eleven business organizations, the Erie County Prothonotary, and the Superior Court Prothonotary. Nowakowski referred to the then

- pending civil action he brought against many of the same defendants, and attached copies o f multiple filings from the civil case

. 2 The trial court denied the petition by an order entered September 18, 2018. The court found that the Commonwealth had not abused its discretion in disapproving the Complaint, and stated that it would not interfere w ith the “wide discretionary latitude a prosecutor has in evaluating private criminal complaints.” Order, 9/18/18. Nowakowsi appealed, and raises the following issues: A. Did the District Attorney and later the trial court [ err ] by considering [Nowakowski’s ] [C] omplaint “lacking prosecutorial merit [ ” ] ? B. If the review of a private criminal co mplaint cannot be traced to an [a] ttorney for the Commonwealth, via the [a] ttorney’s signature, is the disapproval reached in error, via an abuse of discretion or fraud ? C. If the review of a private criminal complaint cannot be traced to an Attorney for the Commonwealth, via the [a] ttorney’s signature, can the affiant reasonably receive a fair and impartial determination in the Erie County Court of Common Pleas? D. Is there an implied court order or court approved consent agreement, preventing or tabulating for prosecution, all inchoate or direct criminal acts once a civil or criminal action is filed? Similar

_________________ __________ ______ ____ _______ 2 The civil case was dismissed with prejudice , a nd we affirmed

. See Nowakowski v. E.E. Austin & Son, Inc. , No. 1854 W DA 2017 (Pa.Super. filed Nov. 20, 2018) (unpublished memorandum).J

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to Title 23, Section 6113.1 (Creating a back drop for e xactly how the abuse of discretion was achieved) [?] Nowakowski’s Br. at 7 (suggested answers omitted). Nowakowski waived these issues. Taking his last issue first , Nowakowski did not raise any argument related to 23 Pa.C.S.A. § 6113.1 or the prosecution of criminal actions during the pendency of related civil actions before the trial
court. This issue is thus waived. See Pa.R.A.P. 302(a) (arguments cannot be raised for the first time on appeal). In addition , because there is no copy of the disapproved Complaint in the certified record, Nowakowski waived his claims that the Commonwealth improperly disapproved the Complaint without having it reviewed by an attorney and that that the trial court erred in deferr ing to the Commonwealth’s conclusion that the Complaint lacked prosecutorial merit. The appellant bears the burden of ensuring that the certified record is complete, and we are unable to consider evidence that is not found in the certified record. See Comm onwealth v. Preston , 904 A.2d 1, 6

- 8 ( Pa.Super. 2006) ( en banc )

. Without a certified copy of the disapproved Complaint, we cannot resolve these issues. In any event, they are meritless. Nowakowski does not argue that the person who signed the disapproved C omplaint is not an attorney or that the signature was for g ed

. He instead contends that because the cover letter accompanying the disapproved Complaint was signed by a non

- attorney, theJ

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Commonwealth did not have an attorney review the Complaint. This is a n on sequitur

. Nor has Nowakowski proven that the trial court abused its discretion

. A trial court review s the district attorney’s determination that a case lacks prosecutorial merit under an abuse of discretion standard , and we review the trial court’s decision under the same standard

. In re Rafferty , 969 A.2d 578, 582 (Pa.Super. 2009). The private criminal complainant bears the burden of proving that the district attorney’ s decision was “ patently discriminatory, arbitrary , or pretextual, and therefore n ot in the public interest ,” or that the decision “amounted to bad faith, fraud, or unconstitutionality

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

. Nowakowski has failed to carry his burden

. Nowakowski alleges only that the Commonwealth fa iled to investigate the allegations in his Complaint. However, t he allegations do not lead to the co nclusion that the Commonwealth’s de cision not to prosecute amounted to “ bad faith, fraud or unconstitutionality,” or was “patently discrimin atory, arbitrary or pretextual. ” Id. We therefore affirm the order of the trial court denying his petition for
review. Order affirmed.

Judgment Entered.J

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Joseph D. Seletyn, Esq. Prothonotary

Date: 7/16/2019