J-A14033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: KASHIF ROBERTSON :

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1020 MDA 2021

Appeal from the Order Entered July 14, 2021

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-MD-0000954-2021

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 25, 2022

Kashif Robertson appeals pro se from the July 14, 2021 order denying 

his petition for review of the disapproval of his private criminal complaint. 

After careful review, we affirm.

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

On February 2, 2019, Appellant was pulled over for a 

window tint violation. Officer Chad McGowan testified 

that he believed the light transmission reading was 

17% on scene. This reading was included in his 

criminal complaint but omitted from the final police 

report. Officer McGowan further testified that he 

included in his report that the results of a 

[Pennsylvania Justice Network] search showed 

Appellant as a registered owner of the vehicle. He 

admitted that Appellant’s mother may be a co-owner. 

Officer McGowan later testified, at Appellant’s jury

trial, that he could not recall when exactly he tested 

the window tint.

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* Former Justice specially assigned to the Superior Court.
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Trial court opinion, 9/14/21 at 2 (citations to notes of testimony and footnotes 

omitted). 

The relevant procedural history of this case, as gleaned from the trial 

court opinion, is as follows: 

On June 21, 2021, Appellant filed a Petition for Review 

of the Disapproval of his Private Criminal Complaint. 

In his private criminal complaint, Appellant alleged 

that Officer Chad McGowan, during a suppression 

hearing and a jury trial, committed perjury, made a 

false report to a law enforcement authority, tampered 

with or fabricated evidence, and made unsworn

falsification to authorities. In a letter dated, May 18, 

2021, Deputy District Attorney Colin Zwally stated 

that, after a review of the complaint, he concluded 

that criminal charges against Officer Chad McGowan 

would be inappropriate at that time. Thereafter on 

July 1[4], 2021, this Court issued an Order denying 

the petition and sustaining the disapproval of the

complaint. 

Id. at 1.

On July 28, 2021, Appellant filed a timely notice of appeal. On August 

4, 2021, the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal, in accordance with Pa.R.A.P. 1925(b). Appellant 

filed a timely Rule 1925(b) statement on August 16, 2021, and the trial court 

filed its Rule 1925(a) opinion on September 14, 2021.

Appellant raises the following issue for our review:

1. Did the [t]rial [c]ourt abuse its discretion in 

sustaining the disapproval of the Dauphin 

County District Attorney’s Office refusal to file 

Appellant’s Private Criminal Complaint against 

[Officer] McGowan, which established more 
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than a prima facie showing, and without 

making any attempt to investigate the evidence 

presented in support of the [a]sserted charges?

Appellant’s brief at 1 (edited for clarity).

Our standard of review of a trial court’s decision to sustain a district 

attorney’s disapproval of a private criminal complaint is as follows:

[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. As with all questions of law, the appellate 

standard of review is de novo and the appellate 

scope of review is plenary.

. . . .

[W]hen 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.

In re Ullman, 995 A.2d 1207, 1213 (Pa.Super. 2010) (citations 

omitted), appeal denied, 20 A.3d 489 (Pa 2011).

This court has long recognized that “a private criminal complaint must 

at the outset set forth a prima facie case of criminal conduct. Nevertheless, 

a well-crafted private criminal complaint cannot be the end of the inquiry for 

the prosecutor. The district attorney must investigate the allegations of a 

properly drafted complaint to permit a proper decision on whether to approve 
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or disapprove the complaint.” In re Hamelly, 200 A.3d 97, 101 (Pa.Super. 

2018) (citations and internal quotation marks omitted), appeal denied, 216 

A.3d 221 (Pa. 2019).

Furthermore,

even if the facts recited in the complaint make out 

a prima facie case, the district attorney cannot 

blindly bring charges, particularly where an 

investigation may cause him to question their validity. 

Forcing the prosecutor to bring charges in every 

instance where a complaint sets out a prima 

facie case would compel the district attorney to bring 

cases he suspects, or has concluded via investigation, 

are meritless. The public prosecutor is duty bound to 

bring only those cases that are appropriate for 

prosecution. This duty continues throughout a

criminal proceeding and obligates the district attorney 

to withdraw charges when he concludes, after 

investigation, that the prosecution lacks a legal basis.

In re Miles, 170 A.3d 530, 535 (Pa.Super. 2017) (citation omitted).

“The district attorney is permitted to exercise sound discretion to refrain 

from proceeding in a criminal case whenever he, in good faith, thinks that the 

prosecution would not serve the best interests of the state. This decision not 

to prosecute may be implemented by the district attorney’s refusal to approve 

the private criminal complaint at the outset.” In re Ullman, 995 A.2d at 1214 

(citation omitted).

Private criminal complaints are governed by Rule 506 of the 

Pennsylvania Rules of Criminal Procedure, which provides, in relevant part, as 

follows: 

Rule 506. Approval of Private Complaints
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(A) When the affiant is not a law enforcement 

officer, the complaint shall be submitted to an 

attorney for the Commonwealth, who shall 

approve or disapprove it without unreasonable 

delay.

(B) If the attorney for the Commonwealth:

(1) approves the complaint, the attorney shall 

indicate this decision on the complaint 

form and transmit it to the issuing 

authority;

(2) 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(A)-(B). 

“If the [district attorney] disapproves a private criminal complaint, the 

complainant can petition the Court of Common Pleas for review[,]” as is the 

case here. In re Priv. Crim. Complaints of Rafferty, 969 A.2d 578, 581 

(Pa.Super. 2009) (citation omitted).

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 
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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.

In re Private Criminal Complaint of Wilson, 879 A.2d 199, 215 (Pa.Super. 

2005) (en banc) (citation omitted; emphasis added).

Instantly, the district attorney set forth the following reasons for 

disapproving Appellant’s private criminal complaint:

First, as a matter of law, the facts alleged in the 

criminal complaints and affidavit are insufficient to 

support those criminal charges. Additionally, you 

failed to sign the criminal complaint. Also, you failed 

to include the magisterial district office where you

intended to file your complaint.

As a matter of policy, I have determined that the 

public interest would not be served by pursuing this 

prosecution in this matter. As such, I have 

determined that the use of limited resources to 

support criminal prosecution would not be in the 

Commonwealth’s best interest.

Trial court opinion, 9/14/21 at 3-4, quoting “Appellant’s Petition for Review of 

the Disapproval of Private Criminal Complaint, Exhibit B.”

The trial court found that Appellant failed to satisfy his burden that the 

district attorney abused his discretion in disapproving the private criminal 

complaint. The trial court noted that Appellant’s petition failed to show how 
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the district attorney’s determination that the facts were insufficient to support 

the criminal charges constituted an abuse of prosecutorial discretion. Id. at 

5. The trial court reasoned that Appellant’s petition merely includes blanket 

statements that the evidence he provided established a prima facie showing 

of criminal conduct and “fails to establish that the district attorney acted in 

bad faith, fraud, or unconstitutionality when disapproving the complaint.” Id. 

The trial court further noted that Appellant failed to sign the criminal 

complaint and failed to include the magisterial district office where he intended 

to file the complaint. The trial court reasoned that “[i]t is the petitioner’s duty 

to make sure the relevant portions of his petition are completed correctly.” 

Id.

Additionally, the trial court noted that the district attorney’s 

investigation of the allegations led him to conclude “that the public interest 

would not be served by pursuing this prosecution in this matter.” Id. at 5-6.

Here, the district attorney’s decision to disapprove of Appellant’s private 

criminal complaint was clearly a hybrid of legal and policy considerations. 

Therefore, the trial court’s standard of review of the district attorney’s decision 

was abuse of discretion. See In re Ullman, 995 A.2d at 1213. Our 

appropriate standard of review of the trial court’s decision is likewise an abuse 

of discretion. See In re Private Criminal Complaint of Wilson, 879 A.2d 

at 215.
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Applying the proper standard and scope of appellate review as 

enunciated in this case, and following our own independent review of the 

certified record, we conclude that Appellant failed to demonstrate an abuse of 

discretion by the trial court when it deferred to the district attorney’s decision 

to disapprove of Appellant’s private criminal complaint. Accordingly, we affirm

the trial court’s July 14, 2021 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2022