J-S49024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ARTHUR BOMAR IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MARJORIE J. FOX, DISTRICT ATTORNEY, 

GREENE COUNTY

Appellee No. 1725 WDA 2016

Appeal from the Order Dated October 13, 2016

In the Court of Common Pleas of Greene County

Criminal Division at No(s): CP-30-MD-0000044-2015

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 12, 2017

Appellant, Arthur Bomar, appeals pro se from the order by the Court of 

Common Pleas of Greene County that denied his petition for review of a 

private criminal complaint that was disapproved by the Greene County 

District Attorney’s Office. We affirm.

The relevant facts and procedural history of this action are as follows:

[Appellant, an inmate at State Correctional Institution (“SCI”) at 

Greene,] alleged that[, on April 22, 2015,] the Capital Case 

Manager, [Stephen] Longstreth, discriminated against him and 

threatened him because of his religious belief in Islam. 

[Appellant] alleged that Longstreth is motivated by racism and a 

hate for Muslims. [Appellant] alleged that this behavior and 

obscene and racial hate speech amount to Official Oppression 

and Intimidation.

The District Attorney’s [] Chief County Detective David Lloyd Jr., 

in a letter dated May 6, 2015, disapproved the Private Criminal 

Complaint, indicating that the “office is exercising its discretion 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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in disapproving your complaint.” An appeal from the denial was 

filed on May 20, 2015.

. . . [The trial c]ourt scheduled [an] evidentiary hearing for 

September 26, 2016 at 1:30 p.m.

* * *

On September 26, 2016, the matter was before the [trial c]ourt 

for an evidentiary hearing. However, [Appellant] requested a 

continuance seeking additional reasons why the Commonwealth 

denied his Private Criminal Complaint. Th[e trial c]ourt granted 

[Appellant]’s request, pending response from the District 

Attorney. The [trial c]ourt further[] directed the Court 

Administrator to set a video conference to resolve the appeal 

upon receipt of the District Attorney’s response.

Further, th[e trial c]ourt granted [Appellant]’s request for a 

transcript of the September 26, 2016 video hearing. Also, by a 

separate Order th[e trial c]ourt admitted the seven-page 

affidavit of Michael John Parrish, [Appellant]’s Witness.3. . .

3 [Appellant] asserts that he was not able to call witnesses at 

his evidentiary hearing. However, the [trial c]ourt does not 

recall denying such a request, but in any event believes that 

the [trial c]ourt did not abuse its discretion in denying the 

relief requested. Furthermore, the [trial c]ourt specifically 

allowed [Appellant] to submit a witness affidavit via US Mail, 

that of Michael John Parrish.

* * *

On September 30, 2016, [Appellant] filed a Motion to Allow Him 

to Submit His Witness Declaration/Affidavit (Relating to Michael 

John Parrish).

On October 6, 2016, the District Attorney filed their 

Memorandum in Response to Court Order. This Memorandum 

informed the [trial c]ourt of the particular reasons for their 

denial, stating unlikely success in the prosecution of the case 

and that the Complaint lacked a sound factual basis for a 

criminal prosecution.

Specifically, the Commonwealth stated that in the continuing 

efforts regarding investigation of the allegations alleged by 
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[Appellant], the Commonwealth was able to obtain specific 

Department of Corrections records from [Appellant]’s Official 

Inmate Grievance related to this incident. The District Attorney 

again, after assessment of the additional information, 

determined “that successful prosecution of the case would be 

very unlikely and therefore rejection of the private criminal 

complaint is still appropriate.”

The matter was scheduled for a video conference to be held on 

October 9, 2016, at 9:00 a.m. By further Order, th[e trial c]ourt 

acknowledged the receipt of the Affidavit of Michael John Parrish 

([Appellant]’s Witness).

* * *

[On October 13, 2016, the trial c]ourt denied [Appellant]’s relief.

Therefore, after a careful review of the totality of the 

circumstances, and after giving deference to the District 

Attorney’s decision and absent a gross abuse of discretion, th[e 

trial c]ourt Affirmed the District Attorney’s decision; th[e trial 

c]ourt vacated the previous Order directing a video conference 

to be scheduled, as now moot.

On October 19, 2016, [Appellant] filed a Memorandum of 

Petitioner’s Reply to the Respondent’s Memorandum, alleging 

various reasons why he is entitled to an evidentiary hearing.

Th[e trial c]ourt Denied Petitioner’s Request for an evidentiary 

hearing, as being unnecessary.

[Appellant] filed his Notice of Appeal, on October 31, 2016, 

appealing th[e trial c]ourt’s October 13, 2016 Order.

Order, 12/14/16, at 8-14 (unpaginated) (some formatting altered; one 

footnote and citations to the record omitted).

Appellant raises the following issues on appeal, which we repeat 

verbatim:

1. The [trial c]ourt improperly, erroneously, and 

unconstitutionally denied claims presented by Petitioner in the 

evidentiary hearing proceeding, including specifically.
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2. The [trial c]ourt committed an error of law and/or abused 

its discretion or violated Petitioner’s constitutional rights to due 

process when it denied him the ability to call witnesses to 

present testimony at his hearing.

3. The [trial c]ourt committed an error of law and/or abused 

its discretion when it determined that there was no averment of 

bad faith to overcome the alleged policy-based decision not to 

prosecute, Manager Stephen Longstreth, and if so, whether a 

gross abuse of discretion had occurred.

4. The [trial c]ourt committed an error of law and/or abused 

its discretion by forcing the Petitioner to prove his case to the 

district attorney beyond a reasonable doubt, where in fact, the 

complaint need only aver evidence sufficient to mount a prim[a] 

facie case.

Appellant’s Brief at 3.1

Our standard of review follows:

Appellate examination of a trial court’s review of the District 

Attorney’s decision to disapprove a private criminal complaint 

implicates the following:

____________________________________________

1 The District Attorney did not respond individually to each issue raised by 

Appellant but instead made one consolidated argument, in which she 

contends that the trial court “properly affirmed the denial of the Appellant’s 

private criminal complaint.” District Attorney’s Brief at 4. The District 

Attorney also maintains that Appellant “has failed to establish that the trial 

court acted improperly or abused its discretion.” Id. at 6. The District 

Attorney further argues that Appellant’s private criminal complaint was 

“rejected,” “because the actions alleged would be better dealt with through 

the Department of Corrections Office of Special Investigations and 

Intelligence and an evaluation of the case determined that it had a low 

chance of successful prosecution.” Id. at 4 (citing N.T., 9/26/16, at 17-18). 

We note, however, that the District Attorney did not raise the argument 

regarding the Office of Special Investigations before the trial court. 

Compare Mem. in Resp. to Ct. Order, 10/6/16, at 1-2 and N.T., 9/26/16, at 

3-18, with District Attorney’s Brief at 4 (citing N.T., 9/26/16, at 17-18). We 

need not address the merits of the District Attorney’s argument as Appellant 

has not established entitlement to relief.
J-S49024-17

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[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.

In re Miles, 170 A.3d 530, 534 (Pa. Super. 2017) (alteration in original and 

citations omitted). But if the district attorney disapproves a private criminal 

complaint based on policy considerations —

the trial court accords deference to the decision and will 

not interfere with it in the absence of bad faith, fraud or 

unconstitutionality. In the event the district attorney 

offers a hybrid of legal and policy reasons for disapproval, 

deference to the district attorney’s decision, rather than de 

novo review is the appropriate standard....

* * *

Although a district attorney’s legal evaluation of the evidence 

standing alone is subject to de novo review, there is no simple 

formula for the trial court to determine what constitutes an 

abuse of prosecutorial discretion.

In re Private Complaint of Wilson, 879 A.2d 199, 212 (Pa. Super. 2005) 

(en banc) (alteration in original and citations omitted). “A determination 

that the case lacks ‘prosecutorial merit’” is an example of a policy 

consideration. Commonwealth v. Metzker, 658 A.2d 800, 801 (Pa. Super. 

1995). “Courts will not disturb that decision unless there is a gross abuse of 

discretion.” Id.

In support of his first issue, Appellant contends that after “the affiant 

has Petitioned the trial [c]ourt to grant independent review, the trial [c]ourt 

must conduct a de nov[o] review of the complaint and determine whether its 
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evidence satisfies a prima facie cause of action. Appellant’s Brief at 8 (citing

In re Private Complaint of Adams, 764 A.2d 577 (Pa. Super. 2000)). We 

disagree. 

Here, the district attorney’s denial was based on the lack of “a sound 

factual basis for a criminal prosecution” and the “unlikely success in the 

prosecution of the case,” Order, 12/14/16, at 12,2 which are a “legal 

evaluation of the evidence” and a “policy consideration[],” respectively. 

Wilson, 879 A.2d at 212; Metzker, 658 A.2d at 801. Therefore, the trial 

court was required to defer to the District Attorney’s decision, rather than to 

conduct a de novo review of the complaint. Appellant’s first challenge 

therefore is meritless.

Appellant’s next claim is that the trial court “committed an error of law 

and/or abused its discretion or violated [Appellant]’s constitutional rights to 

____________________________________________

2

In Miles, we stated:

A private criminal complaint must at the outset set forth a prima 

facie case of criminal conduct.

* * *

[E]ven 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.

170 A.3d at 535 (alteration in original and citations omitted).
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due process when it denied him the ability to call witnesses to present 

testimony at his hearing.” Appellant’s Brief at 9. Relying on our decision in 

Metzker, he argues:

[W]hen the district attorney refuses to file the criminal complaint 

and the matter is appealed, the court is placed on the position of 

addressing the decision of the district attorney. It cannot 

properly and thoroughly do so as if it only focuses on the four 

corners of a complaint to the exclusion of the district attorney’s 

investigation of other material she considered.

Appellant’s Brief at 9.

The trial court stated that it “does not recall denying” a request by 

Appellant to call witnesses. Order, 12/14/16, at 11 n.3. Our review of the 

certified record discloses no evidence that the trial court denied such a 

request. Indeed, the trial court allowed Appellant to submit an affidavit by a 

witness, Michael John Parrish, by mail. Order, 12/14/16, at 11 n.3 & 12 

(citing Order, 10/13/16). Accordingly, Parrish’s evidence was before the 

trial court when it made its decision to deny Appellant relief. Therefore, no 

relief is due on this issue.

To the extent that Appellant’s second issue could be construed as 

alleging that the trial court did not consider the district attorney’s 

investigation, as suggested by Appellant’s citation to Metzker, 658 A.2d 

800, such a claim is likewise contradicted by the record. The trial court 

specifically referenced the Commonwealth’s “continuing efforts regarding 

investigation of the allegations alleged by [Appellant],” including that “the 

Commonwealth was able to obtain specific Department of Corrections 
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records from [Appellant]’s Official Inmate Grievance related to [the] 

incident” on April 22, 2015 involving Longstreth. Order, 12/14/16, at 12 

(citing Commonwealth’s Mem. in Resp. to Ct. Order, 10/6/16). Because the 

trial court did consider “the district attorney’s investigation of other 

material,” Appellant’s Brief at 9, Appellant is not due relief.

Next, Appellant contends that the trial court “committed an error of 

law and/or abused its discretion when it determined that there was no 

averment of bad faith to overcome the alleged policy-based decision not to 

prosecute, Manager Stephen Longstreth, and if so, whether a gross abuse of 

discretion had occurred.” Appellant’s Brief at 10. He continues that, “[b]y 

the trial [c]ourt vacating the hearing that was scheduled for October []9, 

2016, it placed [Appellant] in a position that he could not show the facts of 

the case.” Id. Appellant concludes that “a De Novo hearing is needed if the 

disapproval is based on legal reasons, and the [trial c]ourt is to apply an 

‘abuse of discretion standard’ when the decision is a discretionary policy 

consideration.” Id.

Appellant appears to be arguing that the trial court should have made 

specific findings that the district attorney’s disapproval was made “in the 

absence of bad faith, fraud or unconstitutionality.” Wilson, 879 A.2d at 

212. Nevertheless, Appellant does not allege what acts of “bad faith, fraud 

or unconstitutionality” the trial court should have found or on what basis it 

should have made such a finding; he merely makes a bald accusation. By 

failing to appropriately develop his argument, he has not established 
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entitlement to relief. See Zator v. Coachi, 939 A.2d 349, 351 (Pa. Super. 

2007) (appellant’s undeveloped argument “failed to carry his burden of 

persuasion on this point”), appeal denied, 961 A.2d 859 (Pa. 2008) & 961 

A.2d 860 (Pa. 2008); Commonwealth v. Genovese, 675 A.2d 331, 334 

(Pa. Super. 1996) (same).

Appellant’s final issue is that the trial court “committed an error of law 

and/or abused its discretion by forcing [Appellant] to prove his case to the 

district attorney beyond a reasonable doubt, where in fact, the complaint 

need only aver evidence sufficient to mount a prima[]facie case.” 

Appellant’s Brief at 11. Upon a thorough review of the record, we find no 

support for Appellant’s claim that the trial court required him to prove his 

case beyond a reasonable doubt. This claim therefore is meritless.

Appellant also states:

In the event the district attorney offers a hybrid of legal and 

policy reasons for disapproval, deference to the district 

attorney’s decision, rather than de novo review, is the 

appropriate stand to be employed.

Further[, “]if the prosecutor’s decision was based upon a policy 

determination that it would not be in the best interest of the 

Commonwealth to prosecute, the trial Court Must defer to the 

prosecutor’s discretion absent a gross abuse of discretion”. In 

re Private Complaint of Owens Against Coker, [810 A.2d 

172,] 175 [(Pa. Super. 2002), appeal denied, 821 A.2d 587 

(Pa. 2003) (]citing Michaels v. Barrasse, [681 A.2d 1362,] 

1364-1365 [(Pa. Super. 1996)].

Lastly, See Commonwealth v. Jury, 431 Pa.Super, 129, 636 

A.2d 164 (1993). . . . [T]he rule of Jury is that a private 

complainant’s duty is limited to presenting the district attorney 

with a prima facie case.
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Id. at 11 (some formatting altered; emphasis in original). We fail to see 

how the case law Appellant cites entitles him to relief. Even if a complainant 

has established a prima facie case in his private criminal complaint, the 

district attorney is still under no obligation to bring criminal charges: a 

prima facie case does not guarantee that a prosecution must occur. See 

Miles, 170 A.3d at 535.

For all of these reasons, we conclude that the trial court did not err by 

affirming the District Attorney’s refusal to prosecute the charges made in 

Appellant’s private criminal complaint.

Order affirmed.

Judge Dubow joins the memorandum. 

Justice Fitzgerald concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2017