### J-S53011-16

NON

### -PRECEDENTIAL DECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 IN RE: OLIVER ELLIS

v. APPEAL OF: OLIVER ELLIS INTHE SUPERIORCOURT OF PENNSYLVANIA

No. 2201 MDA2015 Appeal

### from theOrder Entered November 17, 2015 In the CourtofCommon Pleas 

### of Dauphin County Criminal Division at No(s): CP-22-MD-

### 0001520-2015
BEFORE: BOWES, SHOGANAND FITZGERALD,* JJ. MEMORANDUM BY BOWES, J.: 

### FILED OCTOBER

### 24, 

### 2016 Oliver Ellis appeals 

### from the order affirming the disapproval of his 

### private criminal complaint by the Office 

### of the 

### District 

### Attorney of Dauphin County (

### "DistrictAttorney"). We

### affirm. This case involves 

### the District 

### Attorney's denial 

### ofAppellant's private complaint wherein Appellant sought to file assault charges against John Sanks, 

### III. The 

### pertinent factual background is taken from the certified record. On June 1, 2013, Harrisburg City Police responded to the intersection of Harris and North 6th 

### Streets 

### for a reported 

### motor vehicle accident. 

### Appellant was located on 

### the sidewalk near the 

### intersection, and told police he did not know

### what had happened. The 

### officers observed 

### that Appellant was 

### disoriented, displayed 

### slurring of his speech, and had


### * FormerJusticespeciallyassignedtothe 

### Superior Court.

### J-S53011-16

bloodshot eyes. 

### Appellant was taken to Harrisburg Hospital, where he consented to a blood draw. Subsequent 

### testing revealed 

### that Appellant's blood alcohol level was 

### 0.194, and he was 

### later charged 

### with driving under the influence. The police learned 

### thatAppellantstruck a 

### motorcyclist, Brian Sanks,when

### Appellant enteredthe 

### motorcycle's lane of

### travel. Appellantdid not 

### mention anyassaultwhen speaking toofficers atthe hospital. In May 2015, 

### almosttwoyears 

### afterthe incident, 

### Appellant contacted the Harrisburg City Policeto file charges, claiming 

### that John Sanks, 

### III, the 

### brother of the injured 

### motorcyclist, punched 

### Appellant in the back of the head 

### shortly afterthe crash. He named two witnesses to the assault: Eric 

### Tarter and George Waters, whom the police then 

### interviewed. Mr. 

### Tarter confirmed he was at the scene of the 

### incident, but said he 

### arrived 

### after Appellant was on 

### the sidewalk and did not see the alleged 

### attack. Mr. Waters confirmed 

### that a male had punched 

### Appellant, but was unable to 

### identify the assailant. The police closed the case 

### for lack of evidence. 

### Letter, 

### 10/20/15 (Exhibit to Petition 

### for Review of Decision to Disapprove Private Criminal 

### Complaint, 

### 11/2/15). Rebuffed by the police, 

### Appellant submitted a 

### private complaint on October 3, 2015, 

### for

### districtattorney approval 

### pursuantto Pa.R.Crim.P. 506. The 

### rendition ofthe facts in 

### thecomplaintwas as

### follows: On the 

### aforementioned date, the Defendant, following a 

### motor vehicle accident involving the Defendant, the Defendant's 

### brother, Brian, and 

### myself, punched me inthe back of my head, 

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### J-S53011-16
causing me to lose consciousness and as a 

### result, sustain a concussion. I do not 

### remember anything following the punch, but Mr. George Waters witnessed the 

### entire incident. Other injuries sustained include burns to my head and 

### right arm as well as a blackeye. Private 

### Complaint, 

### 10/03/15. The 

### District

### Attorneydenied the 

### complaint on October20, 2015,

### with a corresponding 

### letter explaining its reasons. The 

### letter informed 

### Appellant 

### that its office had reviewed the Harrisburg City Police files and 

### highlighted the fact 

### that the witnesses could not 

### identify the alleged 

### culprit. Additionally, the reviewing prosecutor set 

### forth her opinion 

### that Appellant's 

### testimony was 

### unlikely to be 

### credited, since he told police at the 

### time 

### that he could not recall

### what had happened andwaited 

### almosttwoyears to make his 

### allegations. On November 2, 2015, Appellant filed a 

### petition 

### for review 

### with the Court of Common Pleas of Dauphin County 

### pursuant to 

### Rule.' The 

### court ordered the 

### District 

### Attorney to file a response, and 

### the Commonwealth



### ' (B)

### Ifthe

### attorneyforthe Commonwealth: (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 reviewofthe decision. Pa. R.Crim.P

### 506(B)(2).


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### J-S53011-16
complied on November 13. The 

### court denied the 

### petition 

### four days later. 

### Appellant filed a 

### timely notice 

### of appeal. 

### Appellant and the 

### trial court complied 

### with the 

### requirements of Pa.R.A.P. 1925, and the 

### matter is now ready

### forourreview. 

### Appellantpresentstwo issues: I. 

### Whether the 

### [t]rial [c]ourt committed an 

### error of law when it denied 

### [Appellant's] Petition 

### for Review 

### from the 

### [d]enial of his Private Criminal Complaint, where the 

### District

### Attorney based its denial on legal conclusions, and where the 

### private criminal complaint set 

### forth a 

### prima facie case 

### of criminal conduct which was 

### supported by 

### factual assertions which were 

### corroborated by its 

### investigation? 

### II. Whether the 

### [t]rial [c]ourt committed an abuse 

### of discretion when it denied 

### [Appellant's] Petition 

### for Review 

### from the 

### [d]enial of his Private Criminal Complaint, where the 

### District

### Attorney based its denial on policy, or a hybrid of policy and legal reasoning, and 

### where the denial was done

### with bad 

### faith, fraud, or 

### unconstitutionality? Appellant's briefat 4. Our review is confined to the 

### trial court's review of the 

### District Attorney's decision. When an appeal is 

### broughtfrom a common pleas

### court's decision regarding the approval or disapproval of a 

### private criminal complaint, an 

### appellate 

### court is 

### limited to 

### ascertaining the 

### propriety of the 

### trialcourt's actions. Thus, our review is limited to 

### determining whether the 

### trial court abused its 

### discretion or committed an 

### errorof law. 

### Commonwealthv. 

### Brown, 669A.2d 984, 990 (Pa.Super. 1995) (en banc) (emphasis in 

### original). The 

### trial court itself applies 

### different standards depending on the prosecution's reasons 

### for denying the 

### complaint. "The 

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### J-S53011-16

trial court must 

### first correctly identify the nature of the 

### district attorney's reason(s)

### fordenying a 

### private criminal

### complaint." 

## InreWilson, 879A.2d 199, 212 (Pa.Super. 

### 2005) (en banc). The 

### determinative factor is 

### whether the Commonwealth decision was based solely on legal grounds, or

### whether a policy

### consideration played a role. When the Commonwealth's disapproval is based 

### wholly on legal 

### considerations, the 

### court employs a de novo review. Where the decision includes or is 

### entirely based on policy 

### considerations, the 

### trial court reviews the 

### Commonwealth's 

### determination under an abuse of

### discretion standard. 

### Braman v. 

### Corbett, 9 A.3d 1151, 1157

### -58 (Pa.Super. 

### 2011) 

### (citations 

### omitted). The

### trial court'sselection ofstandard is 

### itself subjectto an abuse of 

### discretion review. 

### Commonwealth v. 

### Cooper, 710 A.2d 76, 80 (Pa.Super. 1998) ("Regarding 

### appellant's second 

### argument, 

### thatthe 

### district attorney's decision was solely a legal conclusion, we find no abuse of 

### discretion in the 

### trial court's 

### determination 

### that the decision was based on policy

### considerations. "). 

### Instantly, the 

### trial court applied an abuse 

### of discretion standard, finding 

### thatthe 

### complaintwas denied, in 

### part, 

### for policy reasons. 

### Appellant maintains

### thatthe 

### courtshould have applied a denovostandard. Despite 

### admitting 

### that the disapproval of the Private Criminal 

### Complaintwas based solely upon legal reasons, in its Response, the Commonwealth makes several claims 

### that could be considered policy 

### justifications for its denial. However, it is 

### importantto 

### pointout

### thatthis was 

### not raised when the 

### District Attorney denied 

### the Private Criminal Complaint, but was 

### only raised when this decisionwas questioned beforetheTrial Court. 

# -5-

### J-S53011-16

Appellant's brief at 13 (emphasis in 

### original). We disagree. The

### trial court's opinionstates, in 

### pertinent part: In the 

### instant matter, the Commonwealth 

### articulated a hybrid of legal and policy 

### rationale in 

### support of its denial. The Deputy 

### District Attorney cited the unlikelihood of successfully prosecuting Mr. Sanks where the alleged 

### conduct could not be 

### corroborated by any witnesses and the alleged assailant could not be 

### positively identified. Trial CourtOpinion, 

### 3/7/16, at 5. The 

### trial court clearly did not abuse its 

### discretion in 

### finding 

### that the 

### district attorney articulated a hybrid rationale. We recognize 

### Appellant's 

### argument 

### that the 

### District 

### Attorney relied solely upon a legal reason in denying the 

### complaint. As 

### Appellant points out, the 

### letter appended to the disapproval states, 

### "[B]ased upon the lackofevidence, and 

### thus an 

### inability to prove the case beyond a reasonable 

### doubt, 

### your Private Criminal Complaint has been 

### disapproved." Letter, 

### 10/20/15, at 3 

### (Exhibitto Petition 

### for Review of Decision to Disapprove Private Criminal Complaint, 

### 11/2/15). We agree 

### that the phrase 

### "inability to prove the case beyond a reasonable 

### doubt" is a legal conclusion 

### evaluating the sufficiency of the evidence. Nevertheless, we find it is 

### abundantly clear

### from the

### context ofthe 

### letter as

a whole 

### that the prosecutor believed 

### the likelihood of securing a 

### conviction
was 

### minimal. To the 

### extent 

### that notion is in 

### dispute, the Commonwealth's



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### J-S53011-16

response to the 

### trial court's order dispels it.2 

### "In reviewing the 

### information submitted from the police, as well as Mr. Ellis, it would be 

### highly unlikely 

### that the case could be proven beyond a reasonable 

### doubt to a 

### jury." Commonwealth Response, 

### 11/13/15, at 

### unnumbered 4. We have held 

### that

a

### statement declaring a 

### minimal likelihood ofconviction implicates policyand is

### subjecttothe abuse

### ofdiscretionstandard: Here, the 

### District 

### Attorney disapproved Appellant's 

### private criminal complaint for mixed reasons of law and policy. The

### trial court correctly applied due deference to 

### that decision, in 

### recognition of the District 

### Attorney's duty to conserve and devote the resources 

### of his office to cases in which 

### there is a likelihood of a 

### conviction. 

## In re Wilson,

### supra at 218. 

### Therefore,the 

### trial court properly applied the abuse of

### discretion standard.

2 

### Appellant recognizes 

### that the Commonwealth's response 

### articulates a policy 

### rationale. "Despite 

### admitting 

### that the disapproval of the Private Criminal Complaint was based solely upon legal reasons, in its Response, the Commonwealth makes several claims 

### that could be considered policy 

### justifications for its 

### denial." Appellant's brief at 13. We discern 

### Appellant's 

### argument to be 

### that the 

### trial court erred in its scope 

### of review by consideringthe 

### Commonwealth's November 13, 2015 response. However, the

### trial court is

### clearly permitted to considerthe Commonwealth's response. 

### See

### Commonwealthex rel. 

### Guarrasiv. 

### Carroll, 979A.2d 383 (Pa.Super. 

### 2009) (recordwas not clear asto 

### whether prosecutordeclined to prosecute 

### for legal reasons, policy reasons, or hybrid of 

### both; remanded for 

### evidentiary hearing on

### that issue). 

## -7

### J-S53011-16
Having 

### determined the

### trial court appliedthe 

### correctstandard, we now proceed to review the 

### trial court's denial 

### of the petition. Appellant must show

### that the decision not to prosecute was 

### "patently discriminatory, arbitrary or 

### pretextual, and 

### therefore not in 

### the public 

### interest." We will not 

### disturb the 

### trial court's ruling unless 

### "there are no reasonable grounds 

### for the 

### court's decision, or the 

### court relied on rules of law

### thatwere palpablywrong or 

### inapplicable." 

### Braman v. Corbett, 19A.3d 1151, 1158 (Pa.Super. 

### 2011). Appellant does not 

### attempt to show 

### the District 

### Attorney decision was 

### discriminatory, 

### arbitrary, or 

### pretextual. Nor does 

### Appellant dispute the accuracyof the facts as revealed by the 

### DistrictAttorney's investigation of the police 

### reports. Instead, Appellant merely repeats his 

### argument, which
we have 

### rejected, 

### that the 

### trial court

### "suppl[ied] its own policy

### justification for the 

### District Attorney's disapproval, and 

### thereby appl[ied] the incorrect, and 

### notablymoredeferential, 

### standard." Appellant's briefat 15. As the Commonwealth 

### correctly notes, its 

### investigation failed to produce any

### corroborating evidence 

### whatsoever

### that Mr. Sanks punched him in the back

### ofthe head. At best, 

### theeyewitnesses supplied by

### Appellant can 

### testify only 

### that 

### someone punched 

### Appellant. The reviewing prosecutor pointed out 

### that Appellant did not 

### mention to the police any assault at the 

### time of the incident, and did not press charges 

### for over two years. Those
reasons alone 

### justify the 

### trial court's deference to the Commonwealth's decision notto prosecute. Aswestated in Braman: 

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### J-S53011-16

Even ifthefacts 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 

### onlythose 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. 

### Id. at 1159 

### (citing 

## In re Ullman, 995 A.2d 1207, 1213

### -14 (Pa.Super. 

### 2010)). The

### only

### argument marshaled 

### againsttheCommonwealth's exerciseof discretion is a 

### cursory 

### statement

### that the 

### "denial was done 

### with bad 

### faith, fraud, or 

### unconstitutionality." Appellant's brief at 13. Moreover, 

### Appellant claims the office failed to set 

### forth any established policy 

### justifying the disapproval. However, the Commonwealth is not required to do so. 

### See 

### Braman, supra at 1162 

### (prosecution not required to 

### submit evidence of a policy when 

### rejecting complaint on basis 

### that a 

### conviction is 

### unlikely). The 

### District

### Attorney is 

### permitted to conserve and devote resources ofthe office to cases in which

### there is a likelihood of

### conviction. 

## In re Wilson,

### supra at 218. 

### Accordingly, reasonable grounds 

### exist

### forthe 

### trial court's decision and
we

### thereforefind no abuse of

### discretion. Order

### affirmed.



## -9

### J-S53011-16
Judgment Entered.

J seph D. 

### Seletyn, Prothonotary
Date: 

### 10/24/2016

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