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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: EMIL SFEDU

APPEAL OF: EMIL SFEDU

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3847 EDA 2016

Appeal from the Order Dated October 20, 2016

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

No(s): CP-51-MD-0004757-2016

BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 17, 2017

Emil Sfedu, Appellant, appeals from the order entered in the Court of 

Common Pleas of Philadelphia County denying his petition for review of his 

private criminal complaint. We affirm.

The lower court sets forth the underlying facts and procedural history:

Petitioner [hereinafter “Appellant”] filed a Private Criminal 

Complaint (“PCC”) with the Philadelphia District Attorney’s Office 

against [his brother] George Sfedu for, inter alia, Theft by 

Deception. The basis for Appellant’s allegation is that George 

Sfedu received unclaimed property [not included within their 

father’s estate] in the amounts of $3,184.48 and $548.91, half of 

which was allegedly required to be distributed to Appellant. 

Further, Appellant alleged that George Sfedu violated the 

following statutes: 20 Pa.C.S.A. § 3101(e)(1), (2) and (3)—

Payments to family and funeral directors—Unclaimed Property; 18 

Pa.C.S.A. § 3922, Theft by Deception; 18 Pa.C.S.A § 3921, Theft 

by Unlawful Taking; 18 Pa.C.S.A. § 3927, Theft by Failure to Make 

Required Disposition of Funds Received; and 18 Pa.C.S.A. § 3924, 

Theft by Property Lost, Mislaid or Delivered by Mistake.
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In support of his PCC, Appellant alleged that he was the executor 

of his parents’ estate and distributed the estate proceeds pursuant 

to their will, which bequeathed an equitable division between 

Appellant and George Sfedu. Appellant claimed that, 

unbeknownst to him, George Sfedu contacted the Pennsylvania 

Treasury’s Bureau of Unclaimed Property and submitted a claim 

on behalf of Appellant’s parents. Appellant asserted that George 

Sfedu executed a document, a copy of which was attached to his 

petition, indicating that Appellant was also entitled to claim the 

property. However, Appellant asserts that George Sfedu never 

made this distribution to him. Appellant then filed the PCC at issue 

in this appeal.

The Philadelphia District Attorney’s Office declined to adopt the 

PCC and prosecute George Sfedu. Appellant, through the District 

Attorney’s Office’s internal procedures, requested a review/appeal 

of the PCC, which was again declined. Appellant appealed this 

decision, which was reviewed and denied by the Municipal Court, 

on August 15, 2016. Appellant then appealed that decision to [the 

Court of Common Pleas.]

Trial Court Opinion, filed February 13, 2017, at 1-2.

By Order of October 20, 2016, the lower court denied Appellant’s 

petition, determining that Appellant failed to establish as a matter of law that 

George Sfedu acted intentionally, knowingly, or recklessly with respect to the 

property. This timely appeal followed.

Appellant presents the following question for our review:

DID THE COMMONWEALTH ABUSE ITS DISCRETION BY 

DISALLOWING EMIL SFEDU’S PRIVATE CRIMINAL COMPLAINT 

WITHOUT ARTICULATING ANY VALID POLICY REASONS FOR 

DOING SO?

Appellant’s brief at 5.

Our standard of review for a trial court’s denial of review of the 

Commonwealth’s approval or disapproval of a private criminal complaint is 

well-settled:
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Consistent with established Pennsylvania law in general, we now 

hold that when 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.

When 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.

The private criminal complainant has the burden to prove the 

district attorney abused his discretion, and that burden is a heavy 

one.... [T]he 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

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. See Commonwealth 

v. Hunt, 858 A.2d 1234 (Pa.Super. 2004) (en banc) (citing 

Commonwealth v. Jones, 826 A.2d 900, 907 (Pa.Super. 2003) 

(en banc)) (stating: “An abuse of discretion is not merely an error 

of judgment, but if in reaching a conclusion the law is overridden 

or misapplied or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill will, 

as shown by the evidence or the record, discretion is abused”). 

See also Commonwealth v. Ruby, 838 A.2d 786 (Pa.Super.

2003).
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The district attorney’s decision not to prosecute a private criminal 

complaint for reasons including policy matters carries a 

presumption of good faith and soundness. See [Commonwealth 

v.] McGinley, [673 A.2d 343 (1996) (en banc) (plurality)]. The 

complainant must create a record that demonstrates the contrary. 

Thus, the appropriate scope of review in policy-declination cases 

is limited to whether the trial court misapprehended or 

misinterpreted the district attorney's decision and/or, without 

legitimate basis in the record, substituted its own judgment for 

that of the district attorney. We will not disturb the trial court's 

decision unless the record contains no reasonable grounds for the 

court's decision, or the court relied on rules of law that were 

palpably wrong or inapplicable. Otherwise, the trial court's 

decision must stand, even if the appellate court would be inclined 

to decide the case differently.

In re Wilson, 879 A.2d 199, 214-215 (Pa.Super. 2005) (en banc).

At the October 6, 2016 hearing on Appellant’s motion, both Appellant 

and the trial court agreed that if Appellant’s case implicated any of the abovecited offenses alleged it was 18 Pa.C.S.A. § 3927, Theft By Failure to Make 

Required Disposition of Funds Received. N.T. 10/6/16 at 9-10. Section 3927 

provides as follows:

§ 3927. Theft by failure to make required disposition of 

funds received

(a) Offfense defined.—A person who obtains property upon 

agreement, or subject to a known legal obligation, to make 

specified payments or other disposition, whether from such 

property or its proceeds or from his own property to be reserved 

in equivalent amount, is guilty of theft if he intentionally deals with 

the property obtained as his own and fails to make the required 

payment or disposition. The foregoing applies notwithstanding 

that it may be impossible to identify particular property as 

belonging to the victim at the time of the failure of the actor to 

make the required payment or disposition.

18 Pa.C.S.A. 3927.
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The trial court determined that even if the district attorney disapproved 

Appellant’s complaint for strictly legal reasons,1the allegations against George 

Sfedu failed to establish a prima facie case of a Section 3927 offense, as was 

Appellant’s burden from the outset. This was so, opined the court, where 

nowhere in either the complaint or at the hearing did Appellant address how 

George Sfedu intentionally, knowingly, or recklessly failed to make the 

required payments or disposition of the property. 

Indeed, the court observed, George Sfedu acknowledged on the claim 

form that Appellant was entitled to a share of the unclaimed property, and 

Appellant never alleged that he asked for the money or that George Sfedu 

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1 We note, additionally, that both parties and the court acknowledged, at the 

hearing, a policy component to the district attorney’s explanation for 

disapproving Appellant’s private criminal complaint. Specifically, the district 

attorney’s office advised the court of its position that a family matter involving 

an allegedly improper distribution of a decedent’s property was more a civil 

law concern better left to the orphan’s court, where Appellant could 

appropriately seek redress. N.T. 10/6/16 at 6-7, 13-14, 15. 

Given the familial nature of the dispute and the availability of a civil remedy, 

the district attorney’s position reflected the exercise of sound discretion, even 

if the alleged facts could have made out a prima facie case under Section 

3927. See In re Wilson, 879 A.2d at 211-212 (recognizing district attorney 

not obligated to bring private criminal complaint simply because facts recited 

in complaint make out prima facie case, and may exercise sound discretion to 

refrain from prosecution in good faith belief that prosecution would not serve 

best interests of state). The trial court, therefore, could have properly applied 

a deferential abuse of discretion standard of review to the district attorney’s 

decision. In turn, our appellate review of the trial court’s decision would also 

be for abuse of discretion, which we would find to be absent for the foregoing 

reasons. 
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refused the request. “[A]ppellant’s only contention is that he did not receive 

the money. There are many possible reasons that this occurred, and Appellant 

has not, even at a prima facie level, established the criminal intent required 

to meet the elements in the statute.” Trial Court Opinion, at 4-5.

We discern no error of law with the trial court’s assessment of the 

sufficiency of Appellant’s case under Section 3927, supported as it was by the 

court’s thorough inquiry undertaken at the October 6, 2016, hearing on 

Appellant’s motion. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2017

 
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