J. A25006/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: NIKHIL S. GOKLANEY :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: NIKHIL S. GOKLANEY :

: No. 86 MDA 2016

Appeal from the Order Entered October 8, 2015,

in the Court of Common Pleas of Dauphin County

Criminal Division at No. CP-22-MD-0001376-2015

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 17, 2016

Nikhil S. Goklaney appeals pro se from the October 8, 2015 order 

entered in the Court of Common Pleas of Dauphin County that denied his 

petition for review from the denial of his private criminal complaint. We 

affirm.

The trial court set forth the following:

The instant appeal arises from the Trial Court’s 

denial of a Petition for Review of Private Criminal 

Complaint. [Appellant] requested that the Dauphin 

County District Attorney’s Office (“District Attorney’s 

Office”) pursue a private criminal complaint to 

prosecute Vincent Ortega for alleged harassment. 

On March 18, 2015, [appellant] submitted a private 

criminal complaint which requested that the 

Commonwealth file charges of Harassment and False 

Reports to Law Enforcement Authorities against 

Vincent Ortega. The District Attorney’s Office by 

Kristyne M. Sharpe, Esq., Deputy District Attorney 

responded by letter dated April 29, 2015, that, based 

upon their investigation, the requested criminal 

 

* Former Justice specially assigned to the Superior Court.
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charges would be inappropriate and a successful 

prosecution highly unlikely. Assistant District 

Attorney Sharp [sic] found that the requested 

charges related to [appellant’s] repeated attempts to 

engage his former wife and Mr. Ortega were related 

to a custody dispute properly addressed as a civil 

matter. Attorney Sharpe further noted that 

[appellant,] in fact, had been charged with 

harassment arising out of his repeated calls and text 

messages to Mr. Ortega. Attorney Sharpe apprised 

[appellant] of the decision of the District Attorney’s 

Office as follows:

Ultimately, your Private Criminal 

Complaint has been disapproved. I have 

determined that the use of limited 

resources to support a criminal 

prosecution in this matter would not be 

in the Commonwealth’s best interest. 

Further, I feel that proving to a jury that 

Mr. Ortega committed the crime of 

harassment, beyond a reasonable doubt, 

would be highly unlikely.

On June 19, 2015, [appellant] filed a second 

Private Criminal Complaint in which he requested 

that the Commonwealth file charges based upon the 

same facts. Again, Assistant District Attorney 

Sharpe apprised [appellant] that the District 

Attorney’s Office would not file charges against 

Mr. Ortega. Attorney Sharpe apprised [appellant] of 

the decision of the District Attorney’s Office as 

follows:

. . . After my investigation, which 

included review of the paperwork you 

submitted and review of the police 

reports from Derry township, I have 

again concluded that criminal charges 

are inappropriate via a Private Criminal 

Complaint and that a successful criminal 

prosecution, proving the charges beyond 

a reasonable doubt, is highly unlikely.
J. A25006/16

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I am confident the police are aware 

of your situation and are handling said 

matters appropriately. Should you have 

any questions regarding follow-up, I 

recommend contacting the police 

departments directly.

It is my understanding that there is 

ongoing litigation regarding custody. 

Said litigation should be able to address 

any such matters between you and Mr. 

[a]nd Mrs. Ortega. As such, I have 

determined that the use of limited 

resources to support criminal prosecution 

in this matter would not be in the 

Commonwealth’s interest.

On October 2, 2015, [a]ppellant filed a Petition 

to Review the decision of the Dauphin County District 

Attorney’s Office which denied his request to 

prosecute Vincent Ortega of alleged “harassment, 

falsely incriminating another and filing fictitious 

reports under [Sections] 2709(a)(2), 4906(a) and 

4906(b) of the Pa. Crimes Code.” On October 6, 

2015, the Commonwealth filed a Response to the 

Petition for Review from Denial of [Appellant’s] 

Private Criminal Complaint. We denied the Petition 

on October 7, 2015. [Appellant] filed a Notice of 

Appeal on November 6, 2015. [Appellant] then filed 

a Petition for Reconsideration which we denied on 

November 9, 2015.

Trial court opinion, 3/3/16 at 1-3 (record citations and asterisks omitted).

We note that in its opinion, the trial court stated that although it did 

not direct appellant to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal, appellant did so on December 7, 2015. (Id. at 3.) 

The record, however, reflects that on November 17, 2015, the trial court did, 

in fact, order appellant to file a Pa.R.A.P. 1925(b) statement within 21 days. 
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(Order of court, 11/17/15; Docket #14.) The order provided, among other 

things, that “[a]ny issue not properly included in the Statement timely filed 

and served pursuant to Pa.R.A.P. 1925(b)(1) shall be deemed waived.” 

(Id.) Appellant filed a timely Rule 1925(b) statement that raised the 

following issues:

1. The Court denied [appellant’s] petition for 

review even though Vincent and Christina 

Ortega stalked/followed [appellant] on 

December 25, 2014 with the intent to harass, 

annoy and alarm him and there is evidence of 

this available by way of a Derry Township 

Police Department incident report.

2. “Limited resources” cited by the Dauphin 

County District Attorney as the reason for not 

prosecuting is not a valid reason for not 

prosecuting a crime.

Concise statement of errors, 12/7/15 at 1.

In this appeal, appellant raises the following issue:

Did [the] trial court judge correctly deny 

[a]ppellant’s Petition for Review of private criminal 

complaint to prosecute Vincent Ortega for 

harassment?

Appellant’s brief at 6.

In his brief, appellant argues that the trial court abused its discretion 

for failing to review his petition de novo; specifically, that:

[s]ince the District Attorney has stated in its 

response to [a]ppellant’s petition for review that 

they denied [a]ppellant’s complaints since they 

“failed to establish a prima facie case of criminal 

conduct” which must be based upon a legal 
J. A25006/16

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evaluation of the evidence the trial court judge must 

undertake a de novo review.

Appellant’s brief at 18-19. Appellant failed to raise this issue in his 1925(b) 

statement and, therefore, waives it on appeal. Pa.R.A.P. 1925(b)(4)(vii) 

(issues not included in the statement are waived).

Nevertheless, we note that appellant cites to In re Rafferty, 969 A.2d 

578 (Pa.Super. 2009), to support his contention that he was entitled to a 

de novo review. (Appellant’s brief at 19.) Appellant, however, 

misconstrues Rafferty and also ignores that part of the opinion that 

reaffirms a trial court’s standard of review of a district attorney’s decision to 

disapprove a private criminal complaint on wholly policy considerations, or 

on a hybrid of legal and policy considerations, as an abuse of discretion. Id.

at 581. Here, as noted by the trial court and as supported by the record:

[T]he Commonwealth articulated a hybrid of legal 

and policy rationale in support of its denial. The 

Assistant District Attorney cited the unlikelihood of 

successfully prosecuting Mr. Ortega where the 

alleged conduct related to a civil matter. The District 

Attorney’s Office further based its decision upon the 

existence of charges against [appellant] for 

harassment for repeated contact with Mr. Ortega. 

The Commonwealth concluded, as a matter of policy, 

that pursuit of the dubious claim would be contrary 

to the Commonwealth’s interest in appropriate use of 

its limited resources.

Trial court opinion, 3/3/16 at 5.

Therefore, even if appellant had not waived his issue on appeal for 

failure to include it in his Rule 1925(b) statement, it would nevertheless lack 
J. A25006/16

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merit because the district attorney cited policy reasons for disapproving 

appellant’s private criminal complaints and the trial court, therefore, 

properly reviewed that decision for an abuse of discretion. See, e.g., 

Rafferty, 969 A.2d at 581 (reaffirming that a trial court’s standard of review 

when reviewing a district attorney’s decision to disapprove a private criminal 

complaint on wholly policy considerations, or on a hybrid of legal and policy 

considerations, is an abuse of discretion); see also In re Wilson, 879 A.2d 

199, 215 (Pa.Super. 2005) (en banc) (indicating that the district attorney’s 

disapproval of a private complaint based on its determination that a 

conviction is unlikely constitutes a policy reason for that disapproval); see 

also Commonwealth v. Cooper, 710 A.2d 86, 81 (Pa.Super. 1998) 

(holding that a district attorney’s assertion that a complainant has an 

available civil remedy constitutes a policy reason for the disapproval of a 

private criminal complaint).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016