J-S03001-17

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 902 WDA 2015

Appeal from the Order Dated May 11, 2015

In the Court of Common Pleas of Greene County

Criminal Division at No(s): 34 Misc. 2014

BEFORE: OLSON, SOLANO and STRASSBURGER*, JJ.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2017

Appellant, Arthur Bomar, appeals from the order entered on May 11, 

2015 in the Criminal Division of the Court of Common Pleas of Greene 

County that affirmed the district attorney’s denial of Appellant’s private 

criminal complaint. We affirm.

Appellant is currently incarcerated as a capital offender at the State 

Correctional Institute in Greene County (SCI-Greene). In March 2016, 

Appellant filed a private criminal complaint with the office of the district 

attorney of Greene County. The complaint alleged that on March 11, 2015, 

Appellant submitted a telephone slip to prison officials allowing him to 

telephone his attorney. As the pre-arranged time for the call approached, 

Appellant asked a corrections officer to allow him to use the telephone. 

Appellant, who is an African-American and practicing Muslim, alleged that 
J-S03001-17

- 2 -

the corrections officer, a Caucasian, refused to allow Appellant to make the 

call and directed racial epithets toward Appellant. 

Based upon this incident, Appellant asked the district attorney’s office 

to charge the corrections officer with various offenses, including official 

oppression (18 Pa.C.S.A. § 5301), ethnic intimidation (18 Pa.C.S.A. § 2710), 

and harassment (18 Pa.C.S.a. § 2709). On April 1, 2015, the district 

attorney’s office forwarded a letter to Appellant advising that, in its 

discretion, the office had disapproved Appellant’s complaint. The letter also 

suggested that Appellant contact the Department of Corrections’ Office of 

Special Investigations and Intelligence, which was established to investigate 

inmate complaints, regarding his grievance.1 On or about April 17, 2015, 

Appellant filed a petition asking the trial court to review the district 

attorney’s disapproval of the complaint pursuant to Pa.R.Crim.P. 506. 

Finding no prosecutorial abuse of discretion, the trial court affirmed the 

district attorney’s action by order dated May 11, 2015. Appellant lodged this 

appeal from that order.

Appellant challenges an order affirming the district attorney’s denial of 

a private criminal complaint. In such cases, we determine whether the trial 

court abused its discretion or committed an error of law. In re: Private 

____________________________________________

1

In his appellate brief, Appellant alleges that he filed a complaint with the 

Office of Special Investigations and Intelligence “immediately after the 

incident.” Appellant’s Brief at 5.
J-S03001-17

- 3 -

Complaint of Owens, 810 A.2d 172, 175 (Pa. Super. 2002), appeal denied, 

821 A.2d 587 (Pa. 2003). The trial court's obligations in addressing a 

district attorney's disapproval of a private criminal complaint are as follows.

Where the district attorney's denial is based on a legal 

evaluation of the evidence, the trial court undertakes a de novo

review of the matter. Where the district attorney's disapproval 

is 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 to be 

employed. On appeal, this [C]ourt is limited to determining 

whether the trial court abused its discretion.

In re: Private Complaint of Owens, 810 A.2d at 175-176 (internal 

citations omitted).

Appellant raises three issues in support of his claim. In his first issue, 

Appellant asserts that the trial court erred in failing to undertake de novo

review since Appellant’s rendition of the evidence was legally sufficient to 

establish prima facie causes of action. See Appellant’s Brief at 8. We 

disagree with Appellant’s position. The April 1, 2015 letter from the 

prosecutor neither discussed nor assessed the evidence set forth in 

Appellant’s complaint. Instead, the letter referred Appellant to the Office of 

Special Investigations and Intelligence, if he sought further investigation. 

This suggestion is substantially inconsistent with Appellant’s assertion that 

the district attorney’s office concluded that Appellant’s evidence was 

insufficient. Moreover, the trial court affirmed the prosecutor’s disapproval 
J-S03001-17

- 4 -

of Appellant’s complaint after finding that “[t]he Commonwealth did not 

abuse its discretion[.]” Trial Court Opinion, 5/11/15, at 2. This finding 

strongly suggests that the trial court believed that the district attorney 

offered a policy-based determination that it would not be in the best interest 

of the Commonwealth to prosecute the alleged offenses. Since de novo 

review is appropriate only where the trial court determines that the 

prosecutor’s decision is solely the product of a legal conclusion, there is no 

merit to Appellant’s first issue. See Commonwealth v. Cooper, 710 A.2d 

76, 80 (Pa. Super. 1998).

In his second issue, Appellant asserts that the trial court erred in 

denying independent review since the prosecutor’s letter failed to articulate 

a clear statement of the policy upon which the disapproval decision was 

based. See Appellant’s Brief at 10. Again, we disagree. Here, the district 

attorney exercised her discretion in declining to pursue charges against the 

corrections officer. Instead, without passing upon the substantive merit of 

Appellant’s accusations, the prosecutor referred Appellant to the Office of 

Special Investigations and Intelligence, an agency within the Department of 

Corrections established to investigate inmate complaints. The underlying 

policy premise of the district attorney’s actions is that the Office of Special 

Investigations and Intelligence may be better situated than the county 

district attorney’s office to investigate and pursue complaints from inmates 
J-S03001-17

- 5 -

concerning offenses committed within our state correctional facilities.2 This 

is a valid policy reason for the district attorney's decision. See Cooper, 710 

A.2d at 81 (availability of adequate civil remedy represents valid policy 

reason for rejecting private criminal complaint). There is no evidence of bad 

faith, fraud, or unconstitutionality. Accordingly, the trial court did not abuse 

its discretion in affirming the denial of prosecution.

Appellant’s final issue alleges that the office of the district attorney 

harbored an adverse bias against Appellant and his claims because of his 

race and his status as an inmate. Appellant, however, fails to develop these 

claims with appropriate citation to the record or pertinent authorities. See 

Pa.R.A.P. 2119(a) (requiring appellant to support his or her argument with 

pertinent analysis, including citation to and discussion of relevant authority 

and facts of record). Hence, we constrained to find that Appellant has 

waived appellate review of these issues.3 See Pa.R.A.P. 2101 (allowing 

quashal or dismissal where defects in brief are substantial).

Order affirmed.

____________________________________________

2

In this connection, we note that Appellant’s criminal complaint alleged that 

the corrections officer’s conduct was in violation of, among other things, the 

Department of Corrections’ Code of Ethics and applicable sections of 

departmental regulations. See Appellant’s Criminal Complaint, 3/16/15.

3

For similar reasons, we find Appellant has waived review of the due 

process claim he raises in his reply brief.
J-S03001-17

- 6 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2017