J-A21032-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: MARK E. CAPPER

APPEAL OF: MARK E. CAPPER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 293 EDA 2023

Appeal from the Order Entered December 22, 2022

In the Court of Common Pleas of Chester County

Criminal Division at CP-15-MD-0003142-2022

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 27, 2024

Mark E. Capper (Appellant) appeals from the order denying his petition 

to review the Commonwealth’s disapproval of his private criminal complaint.1 

We affirm.

The trial court explained:

In October 2022, Appellant presented a private criminal 

complaint (“Complaint”") to the Chester County District Attorney’s 

Office (“Commonwealth”) for approval. Appellant was the affiant 

on the Complaint. The summary of facts section in the 

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1 Pennsylvania Rule of Criminal Procedure 506 “authorizes private citizens to 

file criminal complaints against other persons before the appropriate issuing 

authority. Before doing so, however, the private criminal complaint must first 

be submitted to an attorney for the Commonwealth for approval or 

disapproval. If the attorney for the Commonwealth disapproves the filing of 

the private criminal complaint with the issuing authority, Rule 506 thereafter 

permits the private complainant to petition the court of common pleas to 

review the disapproval decision.” In re Ajaj, 288 A.3d 94, 96 (Pa. 2023)

(footnotes omitted).
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Complaint reads in its entirety: “[o]n the morning of May 

26, 2022, at approximately 11[:]00, Chester County 

Sheriff’s Corporal Lawson and Deputy Schuibbeo 

unlawfully removed me from a public meeting in a public 

venue against my will.”

Appellant claimed, without more, that the behavior was a 

violation of the Pennsylvania Crimes Code at 18 Pa.C.S. § 5301[, 

Official Oppression]. [O]n November 7, 2022, the Commonwealth 

disapproved the Complaint due to “insufficient probable cause.” 

Thereafter, on or about November 22, 2022, Appellant filed his

Petition for Review of the Commonwealth’s Disapproval of the 

Complaint citing Pa.R.Crim.P. 506 entitled “Approval of Private 

Complaints.”

... A hearing on the matter was scheduled for December 20, 

2022. Appellant argued that on May 26, 2022, while at the 

Chester County Library in Exton, Pennsylvania, Chester County 

Sheriff Corporal Lawson and Deputy Schuibbeo unlawfully

removed him from a public “town hall” meeting held by United 

States Representative Chrissy Houlahan. See N.T., 12/20/2022, 

[at] ... 5. The Commonwealth responded by reiterating its original 

position that Appellant’s Complaint lacked sufficient probable 

cause. The Commonwealth argued that an official’s knowledge 

that their conduct is illegal is a statutory requirement of the charge 

of Official Oppression. Id. at 7. The Commonwealth further 

stated that Appellant’s Complaint did not assert sufficient facts to 

allege that the deputies knew that their actions were illegal. Id.

at 7-8. [T]herefore, the Commonwealth denied the Complaint.

Appellant, however, pointed out that he submitted a five (5) 

minute video to the Commonwealth to support his Complaint. 

Appellant stated that he informed Corporal Lawson that Appellant 

“could sue [Lawson] personally for what he was doing.” Id.

Importantly, the Commonwealth did not consider the video 

when evaluating Appellant’s Complaint. Id. Yet Appellant asked 

that this court review the video to determine if the Complaint 

should have been denied. Id. This court declined to review the 

video because the Commonwealth rejected the Complaint for 

insufficient probable cause. Stated another way, the Complaint 

did not contain sufficient material facts to support the allegation 

of Official Oppression, 18 Pa.C.S. § 5301.
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After the hearing and a review of the relevant case law, this 

court denied Appellant’s petition. This court agreed the Complaint 

failed to set forth sufficient probable cause for the charge of 

Official Oppression under 18 Pa.C.S. § 5301.

Trial Court Opinion (TCO), 3/27/23, at 1-3 (emphasis added; some spacing 

altered).

Appellant proceeded pro se before the trial court.

2

 Appellant

subsequently obtained counsel, who filed Appellant’s notice of appeal on 

January 20, 2023. On February 13, 2023, Appellant filed a counseled, courtordered “Concise Statement of Issues” pursuant to Pa.R.A.P. 1925(b). 

Appellant asserted he could not “readily discern the basis for th[e trial c]ourt’s 

decision as the [c]ourt made no statements on the record regarding 

[Appellant’s] appeal, and the Order denying his appeal contained no further 

information.” Rule 1925(b) Statement, 2/13/23, at 1. Appellant continued:

Therefore, the following statement of errors can be averred only 

in general terms:

1. The [c]ourt erred in denying [Appellant’s] appeal of the Chester 

County District Attorney’s disapproval of [Appellant’s] Private 

Criminal Complaint.

2. The [c]ourt erred in failing to conduct the required de novo

review of the Chester County District Attorney’s disapproval of 

[Appellant’s] Private Criminal Complaint.

3. The [c]ourt erred by failing to accept evidence and testimony 

from [Appellant], a pro se litigant, when he both attempted to 

offer it and suggested it was necessary.

Id. at 1-2.

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2 Appellant declined the trial court’s offer for additional time to obtain counsel 

and stated that he wanted to proceed pro se. N.T., 12/20/22, at 4.
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The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a). 

Pertinently, the court recognized the Pennsylvania Supreme Court’s

intervening pronouncement of new law in In re Ajaj. See TCO at 5.3 The

Supreme Court held that, “when reviewing a prosecutor’s decision 

disapproving a private criminal complaint under Rule 506, a court of common 

pleas may only overturn that decision if the private complainant demonstrates 

that the disapproval decision amounted to bad faith, occurred due to fraud, or 

was unconstitutional.” Ajaj, 288 A.3d at 109. Ajaj was decided on January 

19, 2023. The “general rule is that the decision announcing a new rule of law

is applied retroactively so that a party whose case is pending on direct appeal

is entitled to the benefit of the changes in the law.” Commonwealth v. Hays, 

218 A.3d 1260, 1264-65 (Pa. 2019). Here, the trial court opined that its preAjaj rationale was “sufficient to support its December 22, 2022 Order,” but 

given the “recent change of law ... the court [conducted] further analysis ... to 

further support why its December 22, 2022 Order should be affirmed.” TCO 

at 5.

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3 “When th[e Pennsylvania Supreme] Court issues a ruling that overrules prior 

law, expresses a fundamental break from precedent, upon which litigants may 

have relied, or decides an issue of first impression not clearly foreshadowed 

by precedent, this Court announces a new rule of law. One of the hallmarks 

of whether this Court has issued a new rule of law is if the decision overrules, 

modifies, or limits any previous opinions of this Court.” In re L.J., 79 A.3d 

1073, 1087 (Pa. 2013) (citations omitted).
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On appeal, Appellant deviates from his concise statement in presenting

the following issues:

1. Where the intervening law changed during the pendency of an

appeal of disapproval of a private criminal complaint, and the 

appellee-complainant [sic] was appealing a disapproval for legal 

reasons and was therefore not required to previously show bad 

faith, fraud, or unconstitutionality of the district attorney’s 

disapproval, should this Court vacate the trial court’s denial of the 

complainant’s appeal to allow him a hearing on the new legal 

standard?

2. Where a district attorney denied a complainant’s private 

criminal complaint solely for ‘insufficient probable cause’, was it 

an error of law for the trial court to refuse to accept the video 

evidence a pro se complainant attempted to offer to refute that 

disapproval?

3. Where the rules require a district attorney to provide all the

reasons for disapproval of a private criminal complaint, the district 

attorney asserts a sole reason—insufficient probable cause—was 

it error and a violation of the complainant’s constitutional due 

process protections for the [trial c]ourt to hold a hearing on an 

entirely different issue without giv[ing] the complainant any notice 

of the purpose of the new hearing—even during the pendency of 

the hearing itself?

Appellant’s Brief at 4-5.

In his first issue, Appellant cites Ajaj, and asks us to vacate the trial 

court’s order and remand the case for Appellant to “establish the District 

Attorney’s disapproval was improper under the new standard.” Id. at 7-8. 

The Commonwealth argues Appellant waived this issue because his concise 

statement “made no mention of a change in standard or how the [trial c]ourt’s 

review was a failure.” Commonwealth’s Brief at 7 (citing Pa.R.A.P. 

1925(b)(3)(iv)). We agree.
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Ajaj was decided on January 19, 2023, but Appellant did not raise or 

acknowledge the decision in his concise statement filed on February 13, 2023. 

When the trial court ordered Appellant to file a concise statement, it 

specifically advised that any issue “not properly included in the Statement 

timely filed and served pursuant to Pa.R.A.P. No. 1925(b) shall be deemed 

waived. Attention is directed to Pa.R.A.P. No. 1925(b)(4) which sets forth 

requirements for the Statement.” See Order, 1/26/23; see also Greater 

Erie Indus. Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 

222, 225 (Pa. Super. 2014) (“In determining whether an appellant has waived 

his issues on appeal based on non-compliance with Pa.R.A.P. 1925, it is the 

trial court’s order that triggers an appellant’s obligation[.] ... [T]herefore, we 

look first to the language of that order.”) (cleaned up).

It is well-settled that “issues not raised in a Rule 1925(b) statement are 

deemed waived.” Ruff v. York Hosp., 257 A.3d 43, 52 (Pa. Super. 2021)

(citing U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund

v. Hua, 193 A.3d 994, 997 (Pa. Super. 2018); Pa.R.A.P. 1925(b)(4)(vii)). 

Thus, Appellant waived his first issue invoking Ajaj. We nonetheless review

Appellant’s remaining issues mindful of Ajaj’s significance.

In Ajaj, the Pennsylvania Supreme Court explained:

While this Court has previously weighed in on the standard of 

review applicable to a prosecutor’s disapproval decision under 

Rule 506(B), we have not offered any definitive guidance by 

majority consensus on the subject—except to conclude that “a 

[court of common pleas] should not interfere with a prosecutor’s 

policy-based decision to disapprove a private [criminal] complaint 

absent a showing of bad faith, fraud, or unconstitutionality.” 
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Thus, we begin by establishing the standard of review that a court 

of common pleas must apply when reviewing a prosecutor’s 

disapproval determination. We hold that, when reviewing a 

prosecutor’s decision disapproving a private criminal complaint 

under Rule 506, a court of common pleas may only overturn that 

decision if the private complainant demonstrates that the 

disapproval decision amounted to bad faith, occurred due to fraud, 

or was unconstitutional. In so holding, we denounce the prior 

rubric, where the applicable standard of review depended on the 

asserted basis for the prosecutor’s disapproval decision. In 

addition, for purposes of determining whether the prosecutor’s 

disapproval decision amounted to bad faith, we ... hold that bad 

faith is demonstrated when the prosecutor acted with a 

fraudulent, dishonest, or corrupt purpose. We note that the 

adoption of the foregoing standard of review ensures that a court 

of common pleas will afford proper deference to the discretionary 

decision of the prosecutor—a member of the executive branch of 

the Commonwealth’s government.

Ajaj, 288 A.3d at 109–10 (citations omitted).

The Supreme Court proceeded to review the merits of the parties’ 

dispute in Ajaj. The Court recognized “the trial court could not have applied 

th[e newly-created] standard of review when it reviewed and overturned the 

[District Attorney’s (DA)] decision disapproving the Complaint.” Id. at 110. 

“In the interests of judicial economy, however, rather than remanding the 

matter to the trial court ... to apply the above-stated standard of review,” the 

Supreme Court reviewed “the DA’s disapproval decision to determine whether 

such decision amounted to bad faith, occurred due to fraud, or was 

unconstitutional.” Id.

Like the Supreme Court in Ajaj, the trial court in Appellant’s case 

“appl[ied] the current standard of review, [and in its opinion,] note[d] that

Appellant also failed to demonstrate that the denial of the proposed complaint
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‘amounted to bad faith, occurred due to fraud, or was unconstitutional.’” TCO 

at 8.

Mindful of the foregoing, we consider Appellant’s two remaining issues. 

The issues are related; Appellant impugns the DA’s determination that his 

complaint failed to establish probable cause; the trial court’s failure to view 

Appellant’s video recording; and the trial court’s conclusion that the complaint 

lacked a “prima facie showing.” Appellant’s Brief at 8-9. Appellant claims:

[T]he [DA’s] disapproval notice and the trial court’s hearing did 

not meet the basic requirements of constitutional due process. 

[Appellant] was not given a fair opportunity to understand the 

claims against him. Neither the [DA’s] notice nor argument before 

the court adequately informed him that the prima facie showing 

of his complaint was at issue.

The [DA] was required to notify [Appellant] of the “reasons” for 

his disapproval. Pa.R.Crim.P. 506(B). It notified him of only one

reason—insufficient probable cause—which [Appellant] appealed.

At the hearing, the [DA] continued to assert that one evidentiary 

basis for disapproval, and [Appellant] attempted to contest that 

reason by offering evidence to show the adequacy of his probable 

cause. The [c]ourt refused to accept that evidence.

Instead, the [c]ourt ruled on a different issue—one that was not 

directly raised by the [DA] in argument or noticed in its 

disapproval: the prima facie showing of [Appellant’s] complaint. 

Every litigant is entitled to a reasonable opportunity to know the 

claims of his opponent, and [Appellant] was denied this right. It 

was [Appellant’s] (and seemingly the [DA’s]) reasonable belief 

that this issue had been previously settled by [the court], and was 

not at issue in the hearing.

At no point did either the trial court or the [DA] signal that the 

question of his prima facie showing was at issue in the hearing. 

However, this is the sole basis for the trial court’s denial of 

[Appellant’s] appeal.
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As [Appellant] was not given proper notice prior to – or even 

during – the hearing of the claims actually at issue, this amounts 

to a violation of his constitutional due process rights, and 

therefore the [c]ourt’s decision should be vacated.

Id.

This argument is flawed. Appellant cites no authority for his claim that 

he was denied due process because the DA and trial court failed to “adequately

inform him that the prima facie showing of his complaint was at issue.” Id.; 

see also Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa. 

Super. 2015) (en banc) (“When an appellant cites no authority supporting an 

argument, this Court is inclined to believe there is none.”).4

The trial court explained that the Commonwealth rejected Appellant’s 

complaint “because of the lack of sufficient evidence or probable cause to 

make out a prima faci[e] case against the deputies.” TCO at 8. A private 

criminal complaint must “set forth a prima facie case of criminal conduct.” 

See Ajaj, 288 A.3d at 97 (citation omitted). A prosecutor is duty bound to 

bring only those cases that are appropriate for prosecution. In re Miles, 170 

A.3d 530, 535 (Pa. Super. 2017) (citation omitted). Further, if a prosecutor 

“has decided that criminal charges were not warranted[, t]he judicial branch 

must tread lightly when interfering with that judgment call.” Commonwealth

v. Harrison, --- A.3d ----, 2023 PA Super 244 (filed Nov. 28, 2023). 

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4 Noting it had advised Appellant he could have a continuance “to obtain

counsel,” the trial court observed that his “claim now that [he] was somehow 

disenfranchised because he was acting pro se is disingenuous.” TCO at 9.
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Appellant accused the sheriff deputies of official oppression, which 

occurs when:

A person acting or purporting to act in an official capacity or taking 

advantage of such actual or purported capacity commits a 

misdemeanor of the second degree if, knowing that his conduct is 

illegal, he:

(1) subjects another to arrest, detention, search, seizure, 

mistreatment, dispossession, assessment, lien or other 

infringement of personal or property rights; or

(2) denies or impedes another in the exercise or enjoyment of any 

right, privilege, power or immunity.

18 Pa.C.S. § 5301.

Appellant alleged simply that the deputies “unlawfully removed me from 

a public meeting in a public venue against my will.” Complaint, 10/26/22, at 

2.

5

 Appellant composed his complaint on form AOPC 411A, which the Unified 

Judicial System provides to the public. The form provides the following 

prompt:

Set forth a summary of the facts sufficient to advise the defendant 

of the nature of the offense charged. A citation to the statute 

allegedly violated, without more, is not sufficient.

See Complaint, 10/26/22, at 2.

On November 7, 2022, Assistant District Attorney (ADA) Madeline 

Troutman disapproved the complaint. Id. In the section designated for “the 

Attorney for the Commonwealth,” she wrote “insufficient probable cause” as 

the reason for disapproval. Id. She also memorialized the disapproval in a 

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5 According to Appellant, he was “ejected ... for having a firearm[.]” 

Appellant’s Brief at 5.
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letter to Appellant which stated, the “private criminal complaint you have filed 

has been disapproved by the [DA’s] Office due to insufficient probable cause.” 

Correspondence, 11/9/22.

At the trial court hearing, Appellant acknowledged, “the [DA] states 

there’s insufficient probable cause.” N.T., 12/20/22, at 5. Appellant stated:

I totally don’t understand this because I filled the form out that I 

got from the [DA’s] website.

It’s filled out in its completion and it states -- the rules clearly 

state that in a court case a summary of the facts to advise the 

defendant of the nature of the offense charged, but neither the 

evidence nor the statute allegedly violated need to be cited in the 

complaint. However, a citation of the statute allegedly violated 

by itself shall not be sufficient for compliance with this subsection.

Well, I have stated the section, the subsections that were violated.

Id. at 5-6.

ADA Kaitlyn Michalek appeared on behalf of the Commonwealth. She 

stated,

the crime that is alleged ... is official oppression[,] which reads, 

plainly, that a person acting in official capacity commits the

misdemeanor of the second degree if[,] knowing his conduct is 

illegal[,] he subjects another to arrest, detention, et cetera or 

denies a person their rights.

As far as [Appellant’s] submission goes, there is nothing to allege 

that the deputies – Corporal Lawson or Deputy Schuibbeo – knew 

that their actions were illegal or even that their actions were 

illegal.

It’s only two sentences that says - makes the statement that 

[Appellant] was unlawfully removed without any description of the 

scenario of the situation or what occurred in order to obtain the 

removal itself.
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So we denied, based on the lack of probable cause and sufficient 

facts to be able to establish a crime was even committed at all.

Id. at 7-8.

Appellant then addressed the trial court:

Now, there’s a full five minute video of this event, which I am 

confident that the [DA’s] Office and those deputies have seen, and 

it states I have told them throughout that video, your Honor, from 

the second they approached me to the second they ejected me 

from the library property that they were violating my civil rights 

and that they were waiving their right to qualified immunity by 

violating my civil rights.

I notified Corporal Lawson, who can be viewed in the video with 

me telling him, you know, that he was going to lose his qualified 

immunity and that I could sue him personally for what he was 

doing.

Id. at 8. Appellant offered the trial court a thumb drive of the video, and 

advised “it’s available on the internet for your perusal.” Id. at 9. At that 

point, ADA Michalek stated:

I would just like to put on the record that I ... have not seen any 

video. So this denial was not based on a video or anything of the 

sort.

The only thing that we look at which is what we are required to 

look at[,] the factual averments that we received from the private 

criminal complaint. And here there were no – it’s not a matter of 

whether he submitted evidence. It’s a matter of whether or not

there w[ere] any facts within this private criminal complaint to 

substantiate the crime that he’s alleging occurred[,] and in the 

scenario that if his civil rights may have been violated, that’s not 

necessarily a criminal act. I don’t have information on that, but 

as far as the crime that was accused and the facts that were 

alleged within the private criminal complaint[, that] is what we 

based [the disapproval] on and that’s all we based [the 

disapproval] on.
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So given the circumstance and what we were provided there would 

be no way for us to approve this based on the standard that a 

private criminal complaint needs.

Id.

The trial court did not view the video, and asked ADA Michalek if the 

Commonwealth was asserting that “what’s alleged doesn’t fit the crime of 

official oppression?” Id. at 10. ADA Michalek answered:

Yes, your Honor, absolutely. I mean, the facts that we have 

available to us were very minimal. Like I said, none of us have 

seen the video. I certainly have not. So I can certainly speak for

myself.

I ha[d] no knowledge of what [Appellant] is referring to in a video 

until this very moment. So based on the crime itself that’s alleged 

and the facts that are available to us is why we denied it, and that 

[] a crime [did] not occur[]. That was assessed ... by two different 

[ADAs].

Id.

The trial court took the matter under advisement before issuing its order 

denying Appellant’s petition for review on December 22, 2022. Our review 

reveals no basis for disturbing the order.

Appellant did not demonstrate that the DA’s decision to disapprove his 

complaint “amounted to bad faith, occurred due to fraud, or was 

unconstitutional.” Ajaj, 288 A.3d at 110. Conversely, the record supports 

the trial court’s conclusion that “the complaint did not contain enough material 

facts to establish a case of official oppression as drafted.” TCO at 4-5; id. at 

6 (finding “Appellant failed to set forth sufficient probable cause in the 
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Complaint to make out a prima facie allegation of Official Oppression against 

the two deputies”).

The trial court explained:

In the instant matter, the complaint merely alleges that on May 

26, 2022, the aforementioned deputies “unlawfully removed me 

from a public meeting in a public venue against my will.” Compl.

¶ 2, 10/22/2022. Appellant asserted no other written facts in the 

Complaint to support his allegations, not even the name of the 

public meeting. Simply stated, the allegations as set forth in the 

proposed Complaint just do not set out a prima faci[e] case.

Taking it a step further now as a result of the recent holding in In 

re Ajaj, supra, and applying the current standard of review, it is 

important to note that Appellant also failed to demonstrate that 

the denial of the proposed complaint “amounted to bad faith, 

occurred due to fraud, or was unconstitutional.”

Rather[,] in the instant matter, the record reflects that the sole 

reason the Commonwealth rejected the complaint was because of 

the lack of sufficient evidence or probable cause to make out a 

prima faci[e] case against the deputies. Appellant did not allege 

sufficient facts to demonstrate that the two deputies acted in a 

knowingly illegal manner—a critical element of the alleged crime. 

Further, Appellant did not allege any facts to demonstrate that the

Commonwealth acted in bad faith when disapproving the 

Appellant’s Complaint. Accordingly, the Commonwealth 

appropriately rejected the Complaint.

Id. at 8.

The trial court afforded “proper deference to the discretionary decision 

of the prosecutor.” Ajaj, 288 A.3d at 109. Appellant’s issues do not merit 

relief.

Order affirmed.
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Date: 2/27/2024