J-S38013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: MISCELLANEOUS ORDERS                      IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


APPEAL OF: NICHOLAS DRUST

                                                      No.  1931 MDA 2014


              Appeal from the Order Entered on October 20, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No.:  CP-40-MD-0000931-2014


BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                             FILED AUGUST 12, 2015

       Nicholas Drust appeals the October 20, 2014, order affirming the

Luzerne County District Attorney’s Office’s disapproval of Drust’s private

criminal complaint.  We affirm. 

       The trial court recited the procedural and factual history of this case as

follows:

       On July 3, 2013, at approximately 8:00 pm, an altercation
       occurred on Heslop Road, Rice Township, Luzerne County.  Four
       individuals were involved in the altercation, shots were fired, and
       two individuals were injured. 

       As a result of the incident, charges were filed against Robert
       Drust and [Nicholas Drust]. [ Drust1] was charged with criminal
       attempt to commit criminal homicide, aggravated assault and
       recklessly endangering another person.        Robert Drust was
       charged with possession of a controlled substance, possession of
       a small amount of marijuana, possession of drug paraphernalia,
____________________________________________


1
     For clarity, “Drust” will refer to Nicholas Drust and not his father,
Robert Drust. 
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     simple assault, harassment and disorderly conduct.  No charges
     were filed by law enforcement against the other two individuals,
     Larry Papach and Harry Kemmerer. 

     A preliminary hearing was scheduled for August 14, 2013 before
     Magisterial District Judge Ronald W. Swank on the charges filed
     against [Drust] and Robert Drust.  At the time of the hearing,
     counsel for [Drust] advised the [trial court] that [Drust] intended
     to file a private criminal complaint against Larry Papach and
     Harry Kemmerer.         This resulted in a continuance of the
     preliminary hearing. 

     On September 18, 2013, [Drust] filed two private criminal
     complaints with Magisterial District Judge Swank.  One complaint
     charged Larry Papach with false imprisonment, criminal
     conspiracy to commit false imprisonment, attempted criminal
     homicide, four counts of aggravated assault and two counts of
     recklessly endangering another person.  The second complaint
     charged Harry Kemmerer with false imprisonment and criminal
     conspiracy to commit false imprisonment. 

     Both complaints were forwarded to the Office of the Luzerne
     County District Attorney for review in accordance with
     Pa.R.Crim. P. 506(A).  By letter dated July 7, 2014[,] counsel for
     [Drust] was notified that the private criminal complaints against
     Larry Papach and Harry Kemmerer were disapproved.  With
     regard to the reason for the disapprovals, the Luzerne County
     District Attorney stated[,] “[b]ased upon the totality of the
     investigation of the incident in question, and the controlling legal
     principles, the charges proposed on these Private Criminal
     Complaints are disapproved.  The Commonwealth believes that
     these charges filed against Mr. Nicholas Drust were appropriately
     filed and will be pursued.” 

     On September 18, 2014, [Drust] filed a petition pursuant to
     Pa.R.Crim. P. 506(B)(2) to Review and Reverse District Attorney’s
     Disapproval of two Private Criminal Complaints.  On October 6,
     2014, [the trial court] heard argument from counsel for [Drust]
     as well as for the Commonwealth. 

Trial Court Opinion (“T.C.O.”), 10/20/2014, at pages 1-2 (unpaginated)

(some capitalization modified). 




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        The trial court considered and denied that petition in an order dated

October 20, 2014.        Drust filed a timely notice of appeal on October 30,

2014. 

        Drust raises two issues for this Court’s consideration:

              1.  Did the Common Pleas Court commit an error of law
                 in affirming the district attorney’s declination
                 decisions where de novo review of the private
                 criminal complaints revealed prima facie cases with
                 evidentiary merit? 

              2.  Did the Common Pleas Court misinterpret the district
                 attorney’s    decisions as being    policy   based
                 declinations? 

Brief for Drust at 2 (some capitalization modified). 

        To proceed with a private criminal complaint, a complainant must

secure the approval of an attorney for the Commonwealth.           Pa.R.Crim. P.

506(A).     A prosecutor’s office is required to investigate a private criminal

complaint after it is filed.    In re Wilson, 879 A.2d 199, 211 (Pa. Super. 

2005).     In deciding whether a prima facie case has been established, the

prosecutor must consider both the content of the complaint, and the result

of the investigation of the case.  Id.

        [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.  The public prosecutor
        is duty bound to bring only those cases that are appropriate for
        prosecution.      This duty continues throughout a criminal
        proceeding and obligates the district attorney to withdraw

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      charges when [he] concludes, after investigation, that the
      prosecution lacks a legal basis. 

Id. at 211-212 (citations omitted; brackets in original).  If the attorney for

the Commonwealth disapproves the complaint, the district attorney must

notify the complainant of the reasons for the disapproval.       Pa.R.Crim. P.

506(B)(2).     A private criminal complainant is permitted to seek judicial

review of the denial of his or her complaint by the district attorney. 

Pa.R.Crim. P. 506. 

      The trial court’s standard of review is dependent upon the reasons

provided by the district attorney for the disapproval.    Commonwealth v.

Cooper, 710 A.2d 76, 80 (Pa. Super.  1998).  Where the district attorney’s

denial is based upon a legal evaluation of the evidence, the trial court

undertakes de novo review of the matter.  Id. Where the district attorney’s

disapproval is based upon policy considerations, the trial court accords

deference to the decision and will not interfere in the absence of bad faith,

fraud, or unconstitutionality.  Id. at 79, 80.  In the event that 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 correct standard to be employed.  Id.

      When seeking review in the trial court, a private criminal complainant

bears the heavy burden of proving that the district attorney abused his

discretion.  In a Rule 506 petition for review:

      the private criminal complainant must demonstrate the district
      attorney’s decision amounted to bad faith, fraud or

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      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. 

In re Wilson, 879 A.2d at 215. 

      Our standard of review also depends upon the district attorney’s

rationale for the disapproval.  Where the district attorney’s decision is based

solely upon legal conclusions, and the trial court’s standard of review is de

novo, “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.”             Id. at 214 (footnotes

omitted).      Where the district attorney’s decision is based upon policy

considerations or a hybrid of legal and policy considerations, and the trial

court’s standard of review is abuse of discretion, “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.”  Id. at 215. 

In this case, the trial court determined that the district attorney based his

disapproval    of   the   complaint   upon   a   hybrid   of   legal   and   policy

considerations, and therefore, it gave deference to the district attorney’s

decision. 

      Drust’s general contention is that the trial court erred in determining

that the district attorney’s office provided a hybrid policy and legal

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conclusion for the disapproval of Drust’s private criminal complaints. 

Because both of Drust’s issues on appeal relate to the standard of review the

trial court employed, we review them together. 

      “Where the District Attorney concludes, based on investigation, that a

conviction is doubtful or impossible, discretion can and should be exercised

to refuse approval.”  Commonwealth v. Metzker, 658 A.2d 800, 801. ( Pa.

Super.  1995).  Even if we assume that the complaints in this case set forth

prima facie cases to support the charges sought, this Court has held that the

determination   that    a    case   “lacks   prosecutorial   merit”   is    a   policy

determination subject to a discretionary standard of review.                See In re

Private Criminal Complaints of Rafferty, 969 A.2d 578, 582 (Pa. Super. 

2009); In re Private Complaint of Adams, 764 A.2d 577, 581 (Pa. Super. 

2000);   Metzker,      658   A.2d   at   800.      Traditionally,   prosecutors      in

Pennsylvania have been given great latitude in deciding which cases to

prosecute and in rejecting those which do not warrant prosecution. 

Metzker, 658 A.2d at 801. “ The power to prosecute is enormous, bringing

as it does the resources of the Commonwealth to bear on the accused. 

Thus, we expect those entrusted with this authority to exercise it wisely, and

not proceed where they conclude that a conviction cannot be attained.”  Id.

      The trial court did not abuse its discretion or misinterpret the district

attorney’s decisions as being, in part, policy based.  Specifically, the district

attorney’s July 7, 2014, disapproval letter stated, “[b]ased upon the totality

of the investigation of the incident in question, and the controlling legal

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principles, the charges proposed on these Private Criminal Complaints are

disapproved.  The Commonwealth believes that the charges filed against Mr.

Nicholas Drust were appropriately filed and will be pursued.”  Drust contends

that the district attorney’s decision was solely a legal conclusion.               The

district attorney provided the following explanation for the denial:

      Instantly, the Pennsylvania State Police investigated an incident
      including four people.         Pertinent to this appeal the
      Commonwealth charged [Drust] and not the two complaining
      witnesses.  Upon [Drust’s] filing of criminal complaints, the
      matter was reviewed again and the private criminal complaints
      were disapproved.  Implicit in the decision was a policy decision
      that charges against the two complaining witnesses were
      unwarranted. 

Brief for the Commonwealth at 6. 

      While   the    district   attorney   never     explicitly   cited   the   policy

determination, the trial court interpreted the district attorney’s reasoning as

one of policy.       Specifically, the trial court determined that the district

attorney provided sufficient reasoning that a case lacking prosecutorial merit

is an implicit policy determination.        While we urge the district attorney’s

office to use language that is more precise as to their policy determinations

in future disapproval letters of private criminal complaints, we nonetheless

conclude that the trial court’s interpretation was reasonable, and conclude

that the trial court did not abuse its discretion. 

      Contrary to the arguments of Drust, the district attorney’s disapproval

in this case is not subject to de novo review because, as we determined

above, it was not based on a purely legal assessment of the complaint. 

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Instead, it was in part a policy-based decision.  Thus, we must evaluate it to

determine whether it was based upon fraud, bad faith or unconstitutionality. 

         Drust   makes     no   arguments   sounding   in   bad   faith,   fraud   or

unconstitutionality.      Further, the trial court does not note an allegation of

such conduct.  Finally, our independent review reveals none.  In this case,

the district attorney deemed the matter lacking in prosecutorial merit due to

divergent and conflicting versions of events by those present at the incident. 

Such an assessment is not prohibited, as there is no evidence that it was

motivated by bad faith or fraud and no proof that it is unconstitutional in its

basis. 

         Order affirmed. 

Judgment Entered. 




Joseph D. Seletyn, Esq. 
Prothonotary



Date: 8/12/2015




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