Opinion
No. 55 MAP 2021
01-19-2023
IN RE: Private Complaint filed by Luay AJAJ Appeal of: Commonwealth of Pennsylvania
Tracy Saylor Piatkowski, Esq., Michael F. J. Piecuch, Esq., PA District Attorneys Association, Joshua D. Shapiro, Esq., Pennsylvania Office of Attorney General, 16th Floor, Strawberry Square, Harrisburg, PA, for Amicus Curiae Attorney General Office & PA District Attorney's Association. Robert Martin Falin, Esq., District Attorney of Montgomery County, Adrienne D. Jappe, Esq., Edward F. McCann Jr., Esq., Kevin R. Steele, Esq., Montgomery County District Attorney's Office, for Appellant. Scott Christian McIntosh, Esq., Lewis McIntosh & Teare, LLC, for Appellee.
Tracy Saylor Piatkowski, Esq., Michael F. J. Piecuch, Esq., PA District Attorneys Association, Joshua D. Shapiro, Esq., Pennsylvania Office of Attorney General, 16th Floor, Strawberry Square, Harrisburg, PA, for Amicus Curiae Attorney General Office & PA District Attorney's Association.
Robert Martin Falin, Esq., District Attorney of Montgomery County, Adrienne D. Jappe, Esq., Edward F. McCann Jr., Esq., Kevin R. Steele, Esq., Montgomery County District Attorney's Office, for Appellant.
Scott Christian McIntosh, Esq., Lewis McIntosh & Teare, LLC, for Appellee.
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE BROBSON
Pennsylvania Rule of Criminal Procedure 506 (Rule 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.
Rule 506 provides:
(A) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.
(B) If the attorney for the Commonwealth:
(1) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
(2) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter, the affiant may petition the court of common pleas for review of the decision.
An issuing authority "is any public official having the power and authority of a magistrate, a Philadelphia arraignment court magistrate, or a magisterial district judge." Pa.R.Crim.P. 103.
In this context, the attorney for the Commonwealth can be either the county district attorney (or his or her designee) or the Attorney General (or his or her designee), depending on the nature of the criminal charges. See Sections 205 and 206(a) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §§ 732-205, -206(a).
In this discretionary appeal, we consider whether the Superior Court erred when it affirmed a decision by the Court of Common Pleas of Montgomery County, Criminal Division (trial court), which overturned the decision of the Montgomery County District Attorney (DA). The DA had disapproved the private criminal complaint (Complaint) of Luay Ajaj (Father) against Saja Ibrahim Abdulkareem Al Rabeeah (Mother) for violations of 18 Pa. C.S. § 2904(a) (interference with custody of children), and 18 Pa. C.S. § 2909(a) (concealment of whereabouts of a child). In so doing, we first consider the proper standard of review courts should apply when reviewing a disapproval decision under Rule 506(B)(2). In that regard, we hold that a reviewing court may only overturn a disapproval decision under Rule 506(B)(2) if the private complainant demonstrates that the disapproval decision amounted to bad faith, occurred due to fraud, or was unconstitutional. Applying that standard of review here, we conclude that Father failed to demonstrate that the DA's decision to disapprove the Complaint amounted to bad faith, occurred due to fraud, or was unconstitutional, and, consequently, we reverse the Superior Court's order.
Section 2904(a) of the Crimes Code provides: "A person commits an offense if [s]he knowingly or recklessly takes or entices any child under the age of 18 years from the custody of its parent, guardian or other lawful custodian, when [s]he has no privilege to do so."
Section 2909(a) of the Crimes Code provides:
A person who removes a child from the child's known place of residence with the intent to conceal the child's whereabouts from the child's parent or guardian, unless concealment is authorized by court order or is a reasonable response to domestic violence or child abuse, commits a felony of the third degree. For purposes of this subsection, the term "removes" includes personally removing the child from the child's known place of residence, causing the child to be removed from the child's known place of residence, preventing the child from returning or being returned to the child's known place of residence and, when the child's parent or guardian has a reasonable expectation that the person will return the child, failing to return the child to the child's known place of residence.
I. RELEVANT PRECEDENT
We begin with a review of the relevant precedent applicable to private criminal complaints. As noted above, Rule 506 governs the initiation of criminal proceedings and authorizes private citizens to file private criminal complaints against another person with an issuing authority upon the approval of an attorney for the Commonwealth. Pa.R.Crim.P. 506(A). A private criminal complaint must, at the outset, set forth a prima facie case of criminal conduct. In re Wilson , 879 A.2d 199, 211 (Pa. Super. 2005) (en banc). The attorney for the Commonwealth is thereafter required to investigate the allegations set forth in the private criminal complaint and, based on that investigation, render his or her approval or disapproval of the private criminal complaint. Id. In so doing, the attorney for the Commonwealth "has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, ... to decide whether and when to prosecute, and [to decide] whether and when to continue or discontinue a case." Commonwealth v. Brown , 550 Pa. 580, 708 A.2d 81, 84 (1998) ( Brown II ) (plurality opinion) (some alterations in original) (citations omitted) (quoting Commonwealth v. DiPasquale , 431 Pa. 536, 246 A.2d 430, 432 (1968) ). "Thus, the [attorney for the Commonwealth] is permitted to exercise sound discretion to refrain from proceeding in a criminal case whenever he [or she], in good faith, thinks that the prosecution would not serve the best interests of the state." Id. (quoting Commonwealth v. Malloy , 304 Pa.Super. 297, 450 A.2d 689, 692 (1982) ). In the event that the attorney for the Commonwealth disapproves a private criminal complaint, the complainant may petition the court of common pleas for review of the decision. Pa.R.Crim.P. 506(B)(2). Rule 506(B)(2) is silent, however, on what standard of review the court of common pleas is required to apply when reviewing that decision. In Commonwealth v. Benz , 523 Pa. 203, 565 A.2d 764 (1989) (plurality opinion), a plurality of this Court "distinguished between a prosecutor's disapproval of a private complaint for reasons of policy and a disapproval based on a legal evaluation of the sufficiency of the complaint" and "essentially endorsed a de novo review by the [court of common pleas] when a prosecutor's disapproval is based on a legal determination of the sufficiency of the complaint." Brown II , 708 A.2d at 84. "The Benz plurality recognized, however, that when a prosecutor's disapproval is based on policy concerns, a de novo review would be improper: ‘[i]f the district attorney had stated policy reasons to support the decision not to prosecute, this Court would [give] deference ... to such a discretionary use of the executive powers conferred in that officer.’ " Id. (some alterations in original) (quoting Benz , 565 A.2d at 767 n.4 ).
Thereafter, in Brown II , a majority of this Court agreed that "a [court of common pleas] should not interfere with a prosecutor's policy-based decision to disapprove a private complaint absent a showing of bad faith, fraud, or unconstitutionality." Id. In so doing, this Court noted that "[a]pplication of this standard recognizes that proper deference must be given to the discretionary decisions of a prosecutor—a member of the executive branch—while acknowledging the authority and responsibility of the judiciary to ensure justice in the criminal court system." Id. at 84-85. A plurality of this Court, in an opinion authored by Justice Nigro, then went on to define "bad faith" as "not simply bad judgment or negligence, but rather ... the conscious doing of a wrong because of ... moral obliquity"—i.e. , "a ‘deviation from moral rectitude or sound thinking.’ " Id. at 85 (some alterations in original) (quoting Black's Law Dictionary 139 (6th ed. 1990) and Merriam-Webster's Collegiate Dictionary 802 (10th ed. 1996)). Justice Cappy, on the other hand, indicated in his opinion in support of reversal that "bad faith is shown where the action under review was undertaken with a [fraudulent,] dishonest[,] or corrupt purpose." Id. at 87 (Cappy, J., opinion in support of reversal).
Although Brown II was a plurality opinion, Justice Cappy, joined by Justices Castille and Newman, noted in his opinion in support of reversal that "[t]he opinion in support of affirmance sets forth the correct standard of review as one requiring a showing of fraud, bad faith or unconstitutionality." Brown II , 708 A.2d at 86 (Cappy, J., opinion in support of reversal). Thus, a majority of this Court agreed on the proper standard to be applied by a court of common pleas when reviewing a district attorney's policy-based decision to disapprove a private criminal complaint. Where this Court disagreed in Brown II was on "the definition of the terms employed within [that] standard of review and the application of [the] standard." Id.
Following this Court's decision in Brown II , the Superior Court "continued to wrestle with a working definition of the appellate role ... in a valiant effort to harmonize what appears to be a divergence in the law with respect to appellate review" of a decision to disapprove a private criminal complaint. In re Wilson , 879 A.2d at 213. As a result, in In re Wilson , the Superior Court summarized the standard that both the Superior Court and the courts of common pleas continue to apply when reviewing a prosecutor's disapproval decision:
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 [court of common pleas] undertakes de novo review of the matter. Thereafter, the appellate court will review the [court of common pleas’] 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.
We further hold that when the district attorney disapproves a private criminal complaint on wholly policy considerations, or on a hybrid of legal and policy considerations, the [court of common pleas’] 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[/her] discretion, and that burden is a heavy one. In the Rule 506 petition for review, the 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 [court of common pleas] 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 [court of common pleas’] decision for an abuse of discretion, in keeping with settled principles of appellate review of discretionary matters.
Id. at 214-15 (emphasis omitted) (footnotes omitted) (citations omitted). Subsequent thereto, in Commonwealth v. Michaliga , 947 A.2d 786 (Pa. Super. 2008), the Superior Court considered the differing definitions of bad faith offered by this Court in Brown II and adopted the definition advanced by Justice Cappy in his opinion in support of reversal—i.e. , that bad faith is demonstrated when the district attorney acted with a fraudulent, dishonest, or corrupt purpose. Michaliga , 947 A.2d at 794-95. In so doing, the Superior Court explained:
[W]e find the definition put forth by Justice Cappy in Brown [II] to be more persuasive then [sic] the definition used by Justice Nigro. Justice Cappy's definition of bad faith objectively focuses upon the intent of the prosecutor. Conversely, Justice Nigro's definition, based in part upon "moral rectitude," is unworkable because it introduces a [court of common pleas’] own personal beliefs into its determination and, therefore, renders appellate review impossible. In essence, using Justice Nigro's definition of bad faith permits the [court of common pleas] to substitute its judgment for that of the district attorney's office. This it cannot do.
Id. (citation omitted).
II. BACKGROUND
Having set forth the relevant legal precedent under which the present controversy arose, we now turn to the underlying facts and procedural history of this case, which are somewhat complicated and involve a father's attempts to secure the return of his two children from Iraq, where Mother has allegedly been holding them since August 2017 in contravention of court orders.
On May 29, 2019, in an effort to facilitate the cooperation of foreign law enforcement authorities in his plight to reunite with his children in the United States, Father filed the Complaint against Mother, accusing her of interfering with the custody of their children in violation of 18 Pa. C.S. § 2904(a) and concealing the whereabouts of their children in violation of 18 Pa. C.S. § 2909(a). (Reproduced Record (R.R.) at 4a-77a.) In support thereof, Father alleged that the children resided in West Norriton Township, Montgomery County, Pennsylvania, from "the time of their birth until [August 2017, when] Mother orchestrated an overseas child abduction/parental kidnapping of the ... children ... with the support of Mother's powerful uncles in Iraq." (Id. at 7a, 9a.) Apparently, Father, Mother, and the children traveled from the United States to Iraq under the belief that Mother's father, who lives in Iraq, was very ill. (Id. at 178a.) Father further alleged that, from October 2018 through May 2019, the Family Division of the Montgomery County Court of Common Pleas (family court) entered various orders that granted Father sole legal and physical custody of the children, directed that Mother appear with the children at certain custody proceedings, directed that bench warrants be issued for Mother's arrest for her failure to appear at the custody proceedings, and held Mother in civil contempt. (Id. at 7a-8a, 19a, 21a, 23a-24a, 26a-27a, 29a-30a.) Father contended that Mother failed to comply with the family court's orders and, instead, "retain[ed] the children [through an] overseas international abduction into a war zone (Iraq)." (Id. at 8a.) He also contended that Mother's powerful uncles and various other third parties have made threats on his life in connection with his continued attempts to seek the whereabouts of his children and have his children returned to the United States. (Id. at 8a-9a.)
Father further alleged that he reported Mother's abduction/kidnapping of the children to and/or sought assistance from various law enforcement agencies, including the Office of American Citizen Services at the United States Embassy located in Baghdad, Iraq, a United States Department of State's (DOS) passport center, DOS's Bureau of Diplomatic Security Service, DOS's Office of Children's Issues, the Federal Bureau of Investigation (FBI), the United States Attorney's Office for the Eastern District of Pennsylvania, the DA's Office, the West Norriton Township Police Department, the National Center for Missing and Exploited Children, and the National Crime Information Center. (Id. at 9a-10a.) Father detailed the high-level security risk to United States’ citizens in Iraq due to terrorism, crime, and political violence. (Id. at 11a, 67a-74a, 76a-77a.) Father contended that the filing of criminal charges against Mother and the subsequent issuance of a warrant for Mother's arrest would assist him in his efforts to locate the children and have them returned to the United States, because such action would, inter alia , "facilitate cooperation from foreign law enforcement authorities by authorizing the issuance of an INTERPOL ‘Red Notice’ " and "serve as justification for the appropriate [authorities] to revoke [Mother's] passport[,] thus limiting subsequent international travel and potentially creating obstacles [to Mother's] ability to remain (legally or otherwise) in a foreign country." (Id. at 10a.)
On June 19, 2019, the DA—through Assistant District Attorney Brianna L. Ringwood (ADA Ringwood) of the DA's Office—disapproved the Complaint, identifying "evidentiary issues" as the sole reason for her decision in the limited space provided on the complaint form. (Id. at 79a.) On June 26, 2019, Father petitioned the trial court, seeking de novo review of the disapproval decision. (Id. at 83a-85a.) Father alleged that de novo review was appropriate because the DA's disapproval decision was based solely on legal conclusions. (Id. at 84a.) The DA filed a response to Father's petition, wherein he indicated that he had disapproved the Complaint for the following reasons: (1) "[a]s a policy, the [DA] does not approve private [criminal] complaints alleging a felony;" (2) "as a matter of policy, caution should be taken in criminalizing the actions of estranged parents involved in a custody dispute;" (3) "[Father] has alternative remedies available [to him] in both civil court and [through] federal authorities[,] who are much better equipped with resources and experience in dealing with foreign authorities such as those of Iraq;" (4) "[a]s it stand[s] now, there is insufficient probable cause that [Mother] committed a crime as the allegations in the [C]omplaint focus on the conduct of her [u]ncles who reside in Iraq;" and (5) "Montgomery County [l]aw [e]nforcement does not have the resources to conduct an investigation to evaluate the merit of [the C]omplaint to be able to exercise discretion [as to] whether it is appropriate for prosecution, as is [their] ethical duty." (Id. at 169a-70a.)
The trial court held oral argument on Father's petition for review on July 23, 2019, the same day that the DA filed his response to the petition. (Id. at 173a-200a.) At the hearing, ADA Ringwood explained to the trial court the DA's reasons for disapproving the Complaint. (Id. at 181a-86a, 194a-97a.) She stated that, as a matter of policy, the DA does not approve any private criminal complaint that requests felony charges, and the crimes that Father has accused Mother of committing—i.e. , interference with custody of children and concealment of whereabouts of a child—are both felonies under Pennsylvania law. (Id. at 181a-82a.) ADA Ringwood further explained that the DA, again as a matter of policy, is "very cautious in criminalizing disputes over custody," because he believes that these matters are best handled through civil custody proceedings. (Id. at 182a-83a.) She also explained that Father has alternative resources available to him to further his efforts to reunite with his children in the United States, including contacting federal enforcement authorities who are "in a better position ... to be able to investigate this type of crime and decide whether [it is] appropriate to move forward with the criminal prosecution" due to the involvement of a foreign jurisdiction. (Id. at 183a-84a, 197a.)
The matter was initially scheduled for an evidentiary hearing. According to the trial court, however, "[ADA] Ringwood preempted [Father's planned testimony] with the argument that a complainant is not entitled to an evidentiary hearing on a petition to review disapproval of a private criminal complaint," and "[t]he hearing [thereafter] became counsels’ oral argument based on their versions of the facts." (Trial Ct. Op. at 16.)
ADA Ringwood noted that the DA also does not believe that there is a reasonable likelihood that Mother would be convicted of interference with custody of children and concealment of whereabouts of a child due to certain evidentiary concerns. (Id. at 184a-87a.) In support thereof, ADA Ringwood indicated that the DA does not have the resources to corroborate and/or properly investigate Father's accusations against Mother, because, with the exception of Father, all of the witnesses are located in Iraq. (Id. at 184a.) In her view, it would be inappropriate to bring criminal charges against Mother when the DA cannot adequately determine whether Mother has, in fact, committed a crime. (Id. at 184a, 194a-95a.) She also indicated that the alleged criminal conduct focuses primarily on the actions of Mother's uncles, and the DA has "no way of investigating whether [Mother] went [to Iraq] of her own free will, knowing that she was going to be kept in Iraq, ... or whether ... she went there and her uncles made the decision for her that she and her children were going to stay." (Id. at 184a-85a.) ADA Ringwood also explained that one of the elements of the crime of interference with the custody of children is lack of legal privilege to take the children. (Id. at 185a.) The family court order granting Father sole legal and physical custody of the children, however, was not issued until October 2018, after the children were already in Iraq with Mother. (Id. at 185a-86a.) She further explained that the DA has no way of investigating whether Mother "believe[d] that her action was necessary to preserve the children from danger" and/or whether Mother is acting in accordance with an order of a court of competent jurisdiction in Iraq, both of which, if proven, are potential defenses to the crime of interference with the custody of children. (Id. at 186a, 195a-96a.) Lastly, ADA Ringwood indicated that the DA is charged with the responsibility of determining whether he can prove beyond a reasonable doubt that a crime has been committed. (Id. at 195a.) ADA Ringwood does not believe the DA can meet this burden in this particular instance. (Id. ) Finally, she maintained that it would be inappropriate for the DA to file charges simply in an attempt to further Father's desire to reunite with his children, which was Father's sole motivation for pursuing a private criminal complaint against Mother. (Id. )
By order dated October 30, 2019, the trial court granted Father's petition, overturned the DA's disapproval decision, and directed the DA to approve and transmit the Complaint to the issuing authority for prosecution. (Id. at 210a.) The DA appealed to the Superior Court, and the trial court ordered the DA to file a statement of errors complained of on appeal pursuant to Pennsylvania Rule of Civil Procedure 1925 (Rule 1925). (Trial Ct. Op. at 19.) In its subsequent Rule 1925 opinion, the trial court initially explained that the "first bridge to cross" on appeal is to decide whether the DA waived his policy-based reasons for disapproving the Complaint for failing to identify those bases for disapproval on the complaint form itself, as the DA did with respect to "evidentiary issues." (Id. at 20.) While the trial court suggested that the DA's last-minute change in position put Father at a disadvantage and "cast[ ] doubt on [the] genuineness" of its policy-based justifications, the trial court ultimately deferred consideration of the waiver issue for the Superior Court's consideration. (Id. at 20-21.) The trial court then proceeded to review the DA's disapproval decision under both a de novo standard of review and for an abuse of discretion. (See id. at 21-30.)
Applying a de novo standard of review, the trial court rejected the DA's "evidentiary concerns" about proving the charges against Mother, noting that Father is the best source of evidence as to what happened with the children in Iraq and that Father, therefore, presented a prima facie case that Mother concealed the whereabouts of the children in violation of 18 Pa. C.S. § 2909(a). (Id. at 21-23.) The trial court explained that Mother, "with obvious intent, failed to disclose the children's whereabouts to [Father]" until at least January 2019, when she provided the family court with an address in Baghdad. (Id. at 22.) She thereafter "embarked on a steady course of assuring the [family c]ourt [that] she would return with the children to [Montgomery] County to contest in the various proceedings scheduled to consider the children's custody[ ] and [that she] ... intended to return with [the children] to live here permanently[ ] but misled the [family c]ourt[ ] and never did appear, with or without [the children]." (Id. at 22-23.) The trial court also rejected the DA's concerns about overcoming potential affirmative defenses. (Id. at 23-25.) The trial court explained that, if Mother concealed the children's whereabouts in an attempt to protect them from danger or Mother was fleeing domestic violence or child abuse, Mother had every opportunity to present those circumstances to the family court during the custody proceedings, which she failed to do. (Id. at 23-25.) The trial court further explained that giving any preclusive effect to custody proceedings and/or custody orders in Iraq "is at best speculative[ ] [and] at worst in direct contravention" to the family court's exercise and retention of jurisdiction over and adjudication of the children's custody. (Id. at 25.) The trial court also dismissed the DA's concerns that he lacked the resources necessary to investigate properly the allegations in the Complaint, noting that federal enforcement authorities
The Superior Court noted that the trial court's analysis and conclusion that the Complaint made out a prima facie case against Mother for concealment of whereabouts of a child applied with equal force to the charge of interference with custody of children. In re Ajaj , 253 A.3d 722, 728 (Pa. Super. 2021).
were "blinking red" with signals to the [DA] to file charges and have a warrant issued so that the federal government would have the requisite basis upon which to pursue the matter and assist the [DA] with the only means possible of securing capture of [Mother] and, hopefully by extension, rescue of the children.
(Id. at 26.) The trial court also noted that individuals from both the FBI and DOS had advised Father that "he would have little chance of getting their best efforts to secure the capture of ... [M]other and the return of the children if the [Commonwealth] did not file charges and issue a warrant." (Id. )
Applying an abuse of discretion standard of review to the asserted policy-based grounds for disapproving the Complaint, the trial court concluded that the DA did, in fact, abuse his discretion. The trial court explained that the DA did not present any evidence to establish that it provided guidance to his prosecutors on his policy to disapprove all private criminal complaints alleging a felony and that any such policy was "an especially bad one" that "could allow some very bad crimes to go unprosecuted." (Id. at 27-28.) Although the trial court recognized that a policy encouraging caution when criminalizing the actions of parents in a custody dispute "may promote a laudable principle where one parent ... tries to tilt the playing field ... by injecting criminal charges into what ordinarily should be handled as a civil matter," it noted the absence of such a circumstance here, as the family court made "painstaking efforts" to apply civil remedies without success. (Id. at 28.) The trial court further explained that any policy that leaves "victims of crime to their civil remedies and eschew[s] involvement in child-custody matters" should not be applied to these extraordinary circumstances, where civil remedies have proven wholly inadequate. (Id. at 29.)
A three-judge panel of the Superior Court affirmed the trial court's order in a unanimous, published decision. In re Ajaj , 253 A.3d at 730. After setting forth the competing standards of review, the Superior Court found no error in the trial court's conclusion that the DA's evidentiary concerns lacked merit. Id. at 726-28. With respect to the waiver question, the Superior Court also explained that, "[w]hile [it] might be inclined to find the [DA] limited [his] basis for disapproval [of the Complaint] when [he] noted only evidentiary issues in [his] disapproval, [its] review of the trial court's disposition under an abuse of discretion standard would not yield a different result." Id. at 728. In support thereof, the Superior Court summarized the trial court's consideration of the DA's decision to disapprove the Complaint on the basis of policy-based considerations and concluded that the trial court did not abuse its discretion by finding that the DA failed to advance sufficient policy-based considerations in support of his disapproval of the Complaint, because those policy-based considerations "deviate from moral rectitude and sound thinking under the facts as developed in the custody proceedings and as summarized in [Father's Complaint] and [the] exhibits" attached thereto. Id. at 730.
The DA filed a petition for allowance of appeal with this Court, which we granted to address the following issue, as phrased by the DA:
Did the Superior Court err as a matter of law when, in a published opinion, it affirmed the lower court order overturning the [DA's] disapproval of a private criminal complaint filed by [Father] against [Mother], despite the numerous evidentiary and policy concerns cited by the [DA], including the lack of a prima facie case, an inability to thoroughly investigate the matter because all possible witnesses and evidence (with the exception of [Father]) are in Iraq, the [DA's] policy of not accepting criminal complaints alleging felonies, and [his] general policy of exercising caution when it comes to criminalizing actions taken during custody disputes which are better handled through civil proceedings, and despite [Father's] failure to overcome the presumption of good faith and soundness attached to the [DA's] decision to not prosecute?
In re Ajaj , ––– Pa. ––––, 259 A.3d 880 (2021). As this issue implicates a question of law, our standard of review is de novo and our scope of review is plenary. In re Vencil , 638 Pa. 1, 152 A.3d 235, 241 (2017).
III. PARTIES’ ARGUMENTS
The DA argues that the trial court erred and abused its discretion by overturning the Commonwealth's decision to disapprove the Complaint, because, despite the existence of sound legal and policy-based considerations supporting the DA's decision, the trial court failed to defer to the prosecutor's decision and, instead, "motivated by sympathy for [Father] and equipped with outside-of-the-record information from a separate family court custody matter, ... improperly substituted its judgment for that of the [DA]." (Commonwealth's Br. at 25-26.) The DA similarly contends that the Superior Court erred by affirming the trial court's order, because the Superior Court relied on the trial court's erroneous findings, which were based on facts outside the record, and "undertook an analysis of the prosecutor's actions when its review should have been limited to the propriety of the trial court's actions." (Id. at 26 (emphasis omitted).)
The Office of Attorney General (OAG) and the Pennsylvania District Attorneys Association (PDAA) jointly filed an amicus brief in support of the DA. The gravamen of OAG's and PDAA's position is that the trial court violated the separation of powers doctrine when it substituted its judgment for that of the prosecutor and overturned the DA's decision disapproving the Complaint—i.e. , the trial court improperly encroached on the Commonwealth's prosecutorial discretion. In support thereof, OAG and PDAA advance arguments similar to those raised by the DA, which are set forth in detail below.
More specifically, the DA argues that the trial court applied the wrong standard of review. It contends that "[t]he standard of review of the disapproval of a private criminal complaint is well[ ]settled" and, whenever a prosecutor disapproves a private criminal complaint based upon a hybrid of legal and policy-based considerations, like here, the court of common pleas must apply an abuse of discretion standard of review, not a de novo standard of review. (Id. at 28-29.) The DA suggests that the trial court failed to comply fully with this standard, because it only applied an abuse of discretion standard of review to its consideration of the DA's policy-based reasons for the disapproval of the Complaint and did not apply that same standard to its consideration of the DA's legal or evidentiary-based reasons.
The DA also argues that the trial court failed to afford his disapproval decision the presumption of good faith and soundness that it was due and "seemingly relieved [Father] of his burden" to prove that the prosecutor's decision amounted to bad faith, occurred due to fraud, or was unconstitutional. (Id. at 32.) Indeed, the DA argues that Father did not prove, let alone even assert, that the DA's disapproval decision amounted to bad faith, occurred due to fraud, or was unconstitutional. Rather, Father merely claimed, incorrectly, that his Complaint established a prima facie case and, therefore, the DA should have approved his Complaint for prosecution.
The DA points out that, "despite [Father's] pleading and proof deficiencies," the trial court still concluded that the DA abused his discretion. (Id. at 35.) He suggests, however, that, contrary to the trial court's implication, there was nothing nefarious about ADA Ringwood's conduct; rather, ADA Ringwood complied with Rule 506 by providing an appropriate reason for the DA's disapproval of the Complaint "in the designated space on the private criminal complaint form." (Id. at 36.) Then, after Father petitioned the trial court for review of the disapproval decision, ADA Ringwood "simply elaborated on the reasons she originally cited." (Id. ) In other words, the DA contends that "evidentiary or legal reasons and policy reasons are [not] mutually exclusive" and an evidentiary/legal issue, including that a case lacks prosecutorial merit, can also be considered a policy issue. (Id. at 37.)
The DA further maintains that his disapproval of the Complaint was not fraudulent or made in bad faith, but rather was "made in good faith and in the public interest, consistent with the [DA's] ethical obligation to only prosecute cases that he ... knows are supported by probable cause." (Id. at 38.) In support, the DA contends that he properly exercised his discretion in disapproving the Complaint because: (1) the DA's Office lacks the necessary resources to investigate properly and evaluate the merits of Father's allegations given that the relevant conduct occurred in Iraq; (2) there was insufficient probable cause that Mother committed a crime given that the allegations set forth in the Complaint focus, not on Mother's conduct, but on the conduct of Mother's "powerful uncles" living in Iraq; and (3) the DA was not confident that he could prove that Mother's alleged actions were not a reasonable response to domestic violence given representations that Mother made before the family court. According to the DA, the trial court and the Superior Court "completely disregard[ed] these ethical constraints" and "not only strip[ped] away the discretion afforded prosecutors in determining whether to prosecute an alleged offender, but also potentially enmesh[ed] a prosecutor in the ethical conundrum of pursuing charges that he or she does not believe are appropriate." (Id. at 43.)
The DA further contends that, even if this Court were to conclude that the trial court properly reviewed and ruled upon the above-mentioned evidentiary or legal-based reasons for its disapproval of the Complaint, the trial court still abused its discretion by overturning the DA's decision and thereby substituting its judgment for that of the prosecutor when it deemed the DA's policy to not accept private criminal complaints alleging felonies "an especially bad one." (Id. at 44 (quoting Trial Ct. Op. at 27).) He contends that the trial court "misse[d] the mark on the rationale behind this policy." (Id. at 45.) The reason that the DA does not accept private criminal complaints alleging felonies is not, as the trial court implied, because he does not want to prosecute serious charges brought by a civilian; rather, it is because private criminal complaints are not the proper mechanism to bring felony charges. The DA argues further that the trial court again improperly substituted its judgment for that of the prosecutor when it rejected the DA's policy-based considerations relative to his hesitation to criminalize actions of parents in custody disputes and the availability of other avenues of relief, particularly with federal authorities.
The DA maintains that "the Superior Court, despite being tasked with ascertaining the propriety of the trial court's action, ... [improperly] undertook an analysis of the [DA's] conduct[ ]and concluded that [he] acted in ‘bad faith.’ " (Id. at 48 (emphasis omitted).) The DA argues that the Superior Court compounded this error by applying the definition of bad faith endorsed by a plurality of this Court in Brown II . In that regard, the DA contends that the Superior Court's decision in Michaliga , which adopted the definition of bad faith endorsed by Justice Cappy in his opinion in support of reversal in Brown II , is binding upon the Superior Court.
The DA suggests that the trial court's abuse of discretion is further reinforced by its reliance on "a plethora of documents supposedly" filed with the family court during the custody proceedings between Father and Mother, documents which were not made part of the record in this matter. (Id. at 53-54.) The DA explains that he was not a party to the custody proceedings and, therefore, did not have access to those outside-of-the-record documents at the time that he made his decision to disapprove the Complaint. Additionally, the DA points out that the trial court heavily relied upon those documents to conclude that Father set forth a prima facie case that Mother concealed the whereabouts of the children, even though "the majority of [those documents] seem to be from a time period" after the DA made his decision to disapprove the Complaint. (Id. at 55-56.) The DA maintains that the Superior Court compounded this error by relying upon the trial court's recitation of these non-record facts to affirm the trial court's order. Taking particular aim at the Superior Court's conclusion that his disapproval decision, as it related to its policy-based considerations, "deviate[d] from moral rectitude and sound thinking," the DA suggests that the conclusion was largely based on the facts developed before the family court in the custody proceedings. (Id. at 56-57 (alteration in original) (quoting In re Ajaj , 253 A.3d at 730 ).)
The DA also suggests that the trial court inappropriately based its ruling, at least in part, on its support of and sympathy for Father. The DA maintains that, "[a]lthough [Father's] predicament may warrant sympathy[,] ... sympathy is not a proper basis on which to decide to prosecute someone, especially where, as here, the [DA's] Office lacks the ability to thoroughly investigate the allegations that revolve around conduct that occurred in Iraq." (Id. at 59.) Nor is it a proper basis "for a court to force [a] district attorney to prosecute." (Id. )
Alternatively, the DA posits that, even if the trial court properly considered the DA's evidentiary-based reasons for his disapproval of the Complaint under a de novo standard of review, Father would still not have been entitled to his requested relief because the Complaint does not make out a prima facie case against Mother for either concealment of whereabouts of a child or interference with custody of children. In that regard, the DA maintains that the Complaint does not definitively establish that Mother, rather than her "powerful uncles," committed these crimes. According to the DA, the facts, as alleged by Father in the Complaint, establish that the uncles informed Father that the children would not be returning to the United States, the uncles took the children's passports, the uncles informed Father that he was not permitted to see Mother, and the uncles and others (not Mother) threatened Father's life. The DA further maintains that "[t]here was simply nothing in the [C]omplaint to [demonstrate] that [M]other was even complicit in the uncles’ acts, much less that she intentionally withheld the children from [Father]." (Id. at 62-63 (emphasis omitted).) The DA also argues that the record reflects that there were ongoing custody proceedings in Iraq, and, therefore, it is possible that, even if Mother is holding the children in Iraq, she may be acting pursuant to a valid order issued by an Iraqi court and could have legal justification to keep the children. He further argues that there is nothing in the Complaint that demonstrates that Mother was not fleeing from domestic violence or abuse. In other words, the DA suggests that the Complaint is devoid of any allegations that Mother acted with the requisite intent to commit the alleged crimes.
Father counters that, after granting him sole legal and physical custody of the children, the family court "took [a] remarkable step" and entered an order requiring "all Montgomery County [l]aw [e]nforcement [a]gencies ... to cooperate in the capture of [Mother] and return of the ... children." (Father's Br. at 11 (emphasis omitted) (quoting R.R. at 162a).) Father maintains that, despite the existence of this valid and enforceable order, the DA has refused to conduct a proper investigation of the allegations set forth in the Complaint, as is required. Father suggests that the DA's stated position that the DA's Office has no way to investigate the allegations properly is a farce, because, in his opinion, an investigation is possible—i.e. , the DA's Office could have contacted Mother's custody attorney to determine Mother's motives, interviewed Father, questioned whether a custody order had been issued by an Iraqi court, and/or reviewed the documents filed with the family court in the parties’ custody matter. The DA's Office, however, has failed to conduct any such inquiries.
Father further argues that "[i]t was not the [trial] court's heart that compelled [its] decision, it was the law[,] [as] [s]uppressing emotion is a judge's professional imperative." (Id. at 22.) In that regard, Father maintains that the trial court's decision is amply supported by the record and applicable law, and, therefore, the trial court did not abuse its discretion by overturning the DA's disapproval decision. In other words, relying heavily on the language of the trial court's Rule 1925 opinion, Father contends that the trial court justifiably cast doubt on the DA's belatedly raised policy concerns, properly applied a de novo standard of review to its consideration of the DA's disapproval decision, and properly concluded that the Complaint set forth a prima facie case against Mother. Father contends that, contrary to the DA's assertions, Mother's motive is an irrelevant consideration. He suggests that the DA refuses to recognize that the record establishes that Mother completed these crimes when she received notice of the family court's order granting Father sole legal and physical custody of the children and thereafter failed to return the children to the United States. Instead, the DA has "conjured alternative explanation[s]" for Mother's actions that simply do not exist and have been addressed by the family court during the custody proceedings—i.e. , financial difficulties in complying with the family court's orders, a custody order from an Iraqi court, and/or the involvement of domestic violence or abuse. (Id. at 29-32.)
Father also argues that the trial court properly rejected as unpersuasive the DA's policy-based reasons for disapproving the Complaint. He notes that, if the DA did in fact have a policy to disapprove private criminal complaints alleging felonies, "it would have been simple enough to state at the outset this reason for disapproving the [C]omplaint[ ] or ... to advance evidence that confirms the establishment of the policy" at some point prior to the time that the DA filed his brief with this Court. (Id. at 25-26.) Directing our attention to his communications with the FBI, Father further posits that this Court "can see how well [the] other remedies" that the DA suggests are available to him "are working out for [him] and the children" and, therefore, maintains that this policy-based concern should not apply. (Id. at 26-27.)
Father further contends that the Superior Court did not abuse its discretion by concluding that the DA's policy-based reasons deviated from moral rectitude and sound thinking or thereafter affirming the trial court's order. In support thereof, Father first argues that, had the DA desired to rely on policy-based considerations in support of his decision disapproving the Complaint, ADA Ringwood should have added the words "policy reasons" on the complaint form as an additional reason for disapproval. Father characterizes the DA's position that Father "was supposed to know that the reasons for disapproval also included myriad unstated policy reasons[ ] that were not included in the reasons for the disapproval" as "laughable, if the stakes weren't so serious." (Id. at 39.) Father also contends that the trial court properly concluded that the DA placed him at a disadvantage by waiting to assert his policy-based concerns until the day of the hearing before the trial court on Father's petition. He maintains that, through ADA Ringwood's actions, the DA waived his ability to rely on appeal on his policy-based reasons for disapproving the Complaint. Father also suggests that the DA changed the reason for his disapproval decision from evidentiary issues to policy-based concerns on the date of the hearing, because the DA wanted unfettered discretion, which he maintains is contrary to the plain language of Rule 506(B).
Father further argues that the trial court properly concluded that the DA's policy of not criminalizing custody disputes constituted an abuse of discretion, because any such policy is essentially an indication from the DA that he will refuse to prosecute the crimes of interference with the custody of children and concealment of whereabouts of a child. He contends that, while the DA "strenuously emphasized the concept of prosecutorial discretion in justifying [his] decision to disapprove the [C]omplaint," the DA "simply misjudged the analysis of prima facie evidence." (Id. at 39, 41.) In that regard, Father suggests that, even if Mother could assert some defense at the time of trial, the Complaint itself contains sufficient facts to establish every element of the crimes alleged and the assertion of "a conjured speculative defense cannot negate a showing of prima facie " evidence. (Id. at 51.) Father also contends that, regardless of which definition of bad faith is applied to the circumstances presented here, the DA's "refusal to investigate and the rubberstamp disapproval of the [C]omplaint" amounted to an abuse of discretion. (Id. at 54.)
In sum, Father maintains that this Court should affirm the Superior Court's decision because the Superior Court concluded: (1) Father presented sufficient evidence to demonstrate that the DA abused his discretion by disapproving the Complaint; (2) "there were reasonable grounds for the trial court's decision;" and (3) the DA's stated policy-based reasons deviate from moral rectitude and sound thinking, and, therefore, the DA acted in bad faith.
Aside from the merits, Father raises objections to the "appropriateness and standing" of OAG and PDAA as amicus in this matter, contending: (1) OAG and PDAA have raised a constitutional separation of powers issue that was not raised before the Superior Court; and (2) there is an apparent conflict of interest because the attorney who represented the Commonwealth before the Superior Court now represents OAG and PDAA. We reject these objections. We see no apparent conflict of interest nor are we convinced that the OAG and PDAA have raised in their briefs wholly new issues not encompassed within the briefing of the Commonwealth.
Additionally, throughout his brief, Father sets forth what the Commonwealth refers to as "distortions of the record" and "misrepresentations." (Commonwealth's Reply Br. at 2, 5.) The Commonwealth responds to these "distortions" and "misrepresentations" at length in its reply brief. (See id. at 2-22.) We find no reason to resolve this disagreement, as the alleged distortions and/or misrepresentations have not factored into our disposition.
IV. ANALYSIS
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." See Brown II , 708 A.2d at 84 ; see also id. at 86 (Cappy, J., opinion in support of reversal). 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. See, e.g. , Benz , 565 A.2d at 767-68 ; In re Wilson , 879 A.2d at 214-15. In addition, for purposes of determining whether the prosecutor's disapproval decision amounted to bad faith, we adopt the definition of bad faith advanced by Justice Cappy in his opinion in support of reversal in Brown II and hold that bad faith is demonstrated when the prosecutor acted with a fraudulent, dishonest, or corrupt purpose. See Brown II , 708 A.2d at 87 (Cappy, J., opinion in support of reversal). 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. See Brown II , 708 A.2d at 84-85.
We must now apply the above standard of review to the facts of this case and determine whether Father has demonstrated that the DA's decision to disapprove the Complaint amounted to bad faith, occurred due to fraud, or was unconstitutional. In so doing, we recognize that, under ordinary circumstances, we would be "limited to ascertaining the propriety of the trial court's actions." Commonwealth v. Brown , 447 Pa.Super. 454, 669 A.2d 984, 990 (1998) ( Brown I ) (emphasis omitted). The circumstances presented here, however, are far from ordinary because, through this decision, we have created a new standard of review that a court of common pleas must apply when reviewing a prosecutor's disapproval decision. As a result, the trial court could not have applied that standard of review when it reviewed and overturned the DA's decision disapproving the Complaint. In the interests of judicial economy, however, rather than remanding the matter to the trial court for the trial court to apply the above-stated standard of review, we will review the DA's disapproval decision to determine whether such decision amounted to bad faith, occurred due to fraud, or was unconstitutional.
We recognize that the issue of the appropriate standard of review that an appellate court must apply when reviewing a court of common pleas’ decision to overturn a prosecutor's disapproval decision is not presently before this Court for consideration. We would be remiss, however, if we did not express our concerns regarding the Superior Court's application of an abuse of discretion standard to its review of a court of common pleas’ decision overturning a prosecutor's disapproval of a private criminal complaint on the basis of bad faith, fraud, and/or unconstitutionality. See Michaliga , 947 A.2d at 792-95. A court of common pleas is tasked with the responsibility of determining whether the prosecutor's disapproval decision amounted to bad faith, occurred due to fraud, or was unconstitutional. There is simply nothing about any such determination that requires a court of common pleas to exercise discretion and, as a result, it would be improper for an appellate court to review a court of common pleas’ determination for an abuse of discretion.
While we are sympathetic to Father's plight in his efforts to reunite with his children and return them to the United States, sympathy cannot guide our decision today. Based upon the record before us, we cannot conclude that the DA's decision to disapprove the Complaint—i.e. , to decline to bring charges against Mother for interference with the custody of her children and concealing the whereabouts of her children—amounted to bad faith, occurred due to fraud, or was unconstitutional. In other words, Father has not alleged nor is there any evidence in the record to suggest that the DA's decision was made with a fraudulent, dishonest, or corrupt purpose, occurred due to fraud, or was unconstitutional. Rather, the record demonstrates that the DA had sound reasons for his disapproval of the Complaint due to the myriad of evidentiary challenges associated with bringing charges against Mother—specifically, (1) the DA's Office's inability to investigate properly Father's accusations against Mother given that all of the witnesses, other than Father, are located in Iraq and that the relevant conduct occurred in Iraq, and (2) the DA's Office's inability to prove that Mother, and not her "powerful uncles," committed the alleged crimes given that the allegations set forth in the Complaint mainly surround the actions of Mother's uncles, not Mother. While we may not have reached the same conclusion had we been charged with the responsibility of deciding whether to approve or disapprove the Complaint under Rule 506, this Court cannot interfere with the prosecutor's discretionary decision given that the evidence of record does not establish that the DA's disapproval decision was improper. For all of these reasons, we conclude that Father failed to demonstrate that the DA's decision to disapprove the Complaint amounted to bad faith, occurred due to fraud, or was unconstitutional. Accordingly, we reverse the Superior Court's order.
Given our conclusion above—i.e. , that the DA's evidentiary concerns associated with bringing charges against Mother are sufficient to support his discretionary decision to disapprove the Complaint—we need not consider the merits of the DA's policy-based reasons or whether the DA waived his ability to rely upon such policy-based reasons for failure to identify them on the complaint form. We note, however, that Rule 506(B)(2) specifically requires the prosecutor to state the reasons for his or her disapproval decision on the complaint form. Thus, we caution attorneys for the Commonwealth, in the future, to include any reason upon which they intend to rely to support their disapproval decisions on the complaint form. We also note that a private complainant, who seeks to have a court of common pleas review a prosecutor's disapproval decision, and the prosecutor, who seeks to defend a disapproval decision, are entitled to a full and fair opportunity to develop a record of disputed material facts. While we recognize that a "private criminal complainant has no right to an evidentiary hearing in connection with [a court of common pleas’] review of the [prosecutor's] decision to disapprove the private criminal complaint," In re Wilson , 879 A.2d at 212-13, there are circumstances where an evidentiary hearing may be necessary, particularly where, as here, the prosecutor asserts policy-based reasons in support of his or her disapproval determination. In those circumstances, unsworn oral argument from the prosecutor is insufficient to create a proper record for appellate review.
Chief Justice Todd and Justices Donohue, Dougherty and Mundy join the opinion.
Justice Dougherty files a concurring opinion.
Justice Wecht files a concurring and dissenting opinion.
The Late Chief Justice Baer did not participate in the decision of this matter.
JUSTICE DOUGHERTY, concurring
I join the majority opinion. The Court's adoption of a unitary standard of review a trial court must employ when reviewing a Commonwealth attorney's disapproval of a private criminal complaint is a welcome development in this area of the law. See Majority Opinion at 109 (denouncing "the prior rubric, where the applicable standard of review depended on the asserted basis for the prosecutor's disapproval decision" and holding a reviewing court "may only overturn that decision if the private criminal complainant demonstrates that the disapproval decision amounted to bad faith, occurred due to fraud, or was unconstitutional"). And I fully endorse the approval of former Justice Cappy's definition of "bad faith" as articulated in his opinion in Commonwealth v. Brown , 550 Pa. 580, 708 A.2d 81, 87 (1998) (plurality) (Cappy, J.) (opinion in support of reversal) ("bad faith is shown where the action under review was undertaken with a dishonest or corrupt purpose"). But although the Court's decision provides a much-needed step in the right direction, it has also led me to believe we should, in an appropriate future case, consider more broadly whether the private criminal complaint system is operating as intended and, if so, whether it is constitutional.
More than a half-century ago we adopted Pennsylvania Rule of Criminal Procedure 105, the original ancestor for what is now labeled Rule 506. Titled "Approval of Criminal Complaints," Rule 506 provides:
The rule has been renumbered three times since its initial adoption: to Rule 133 in 1974; to Rule 106 in 1995; and finally, to Rule 506 in 2001. It has been subject to twice as many amendments over the same period.
(A) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.
(B) If the attorney for the Commonwealth:
(1) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
(2) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter, the affiant may petition the court of common pleas for review of the decision.
Pa.R.Crim.P. 506. By its plain terms, the rule permits private individuals (i.e. , "not a law enforcement officer") to submit a criminal complaint to an attorney for the Commonwealth for his approval or disapproval. Pa.R.Crim.P. 506(A). If the Commonwealth's attorney approves the complaint he proceeds to prosecute as in any other case. Pa.R.Crim.P. 506(B)(1). Alternatively, if the Commonwealth's attorney disapproves the complaint, he must state the reasons why on the form and return it to the complainant. Pa.R.Crim.P. 506(B)(2). The rule then permits the complainant to "petition the court of common pleas for review of the decision." Id.
Notably, "throughout the history of this Commonwealth and until 1974, private criminal complaints were not subject to review by the district attorney." Commonwealth v. Benz , 523 Pa. 203, 565 A.2d 764, 769 (1989) (plurality) (Larsen, J., concurring). Although it is unclear what exactly prompted the 1974 amendment to then-Rule 133, apparently "the changes that were made ... were not intended to radically alter the practice of instituting criminal proceedings by private criminal complaint" but "merely concerned who was to approve the complaint in the first instance." Id. (emphasis in original).
See Maj. Op. at 109 (rejecting "the prior rubric, where the applicable standard of review depended on the asserted basis for the Commonwealth's disapproval of the private criminal complaint").
But what happens after that? The rule doesn't specify; it simply hits a dead end. It says nothing about the standard the court of common pleas must apply in "reviewing" the Commonwealth's decision to disapprove the complaint (and, of course, that is the issue the Court resolves today). Nor does the rule say anything about how the court is to proceed if, upon its review, it concludes the Commonwealth has violated the applicable standard. Still, even in the absence of an apparent text-based remedy, the orders below directing the Commonwealth to prosecute against its will clearly reflect a long-held belief among the courts that the rule "reposes an awesome power in the judiciary, namely, the authority to order a prosecutor ... to prosecute a criminal complaint in the name of the Commonwealth." Commonwealth v. Brown , 447 Pa.Super. 454, 669 A.2d 984, 994 (1995) (en banc ) (Saylor, J., dissenting) (emphasis added), aff'd , 550 Pa. 580, 708 A.2d 81 (1998). Less clear is whether this belief can withstand legal scrutiny.
We have emphasized courts should "seldom interfere with a prosecutor's charging decision" because the prosecutor, a constitutionally elected member of the executive branch, "is afforded such great deference[.]" Commonwealth v. Clancy , 648 Pa. 179, 192 A.3d 44, 53 (2018) ; accord Commonwealth v. Stipetich , 539 Pa. 428, 652 A.2d 1294, 1295 (1995) ("the ultimate discretion to file criminal charges lies in the district attorney"); United States v. Nixon , 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ("the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case"). Given this, there is a colorable argument that when a court forces a district attorney to commence a prosecution he opposes — whether for legal or policy reasons — it inevitably "interfere[s] with the prosecutor's discretionary functions" and thereby "violates the constitutional principle of separation of powers." Commonwealth v. Buonopane , 410 Pa.Super. 215, 599 A.2d 681, 684 (1991).
Surprisingly, we have never confronted this constitutional question. The Commonwealth raised a different separation of powers claim in Benz , but we did not address it because the district attorney there "never purported to predicate his decision not to prosecute upon the exercise of his prosecutorial discretion"; rather, he "expressly stated that the decision to decline prosecution resulted from his determination that the evidence would not sustain a prima facie case." 565 A.2d at 768. In that limited context, we held the district attorney's decision to disapprove the complaint, based purely on legal reasons, was "within the purview of the judicial system to review" and affirmed the trial court's order directing the district attorney to commence prosecution. Id. In Commonwealth v. McHale , 97 Pa. 397 (Pa. 1881), we arguably considered a separations of powers claim (though not expressly identified as such), but only within the context of assessing the permissible bounds of legislative, rather than judicial, encroachment on prosecutorial powers. See id. at 406 (holding "the legislature may not abolish the office" of the district attorney but "it can control the officer" by "regulat[ing] the performance of his duties" and "punish[ing] him for misconduct").
As discussed herein, the Majority overrules Benz sub silentio . In an effort to bring clarity to this line of cases, I would do so unambiguously.
Of course, the issue is not so simple or one-sided; worthy counterarguments surely exist. My learned colleague raises perhaps the strongest one: private criminal complaints have a unique and "long history in our Commonwealth." Concurring & Dissenting Opinion at 16 (Wecht, J.). Indeed, we have explained the "historical genesis" for private criminal complaints "long predates our modern system's belief that crime injures society as a whole." In re Hickson , 573 Pa. 127, 821 A.2d 1238, 1244 (2003) ; see id. at 1244-45 ("provisions authorizing private criminal complaints, such as Rule [5]06, have their roots in a time when crimes were viewed as an offense against individuals rather than the state, visiting upon directly involved parties a harm greater than that experienced by the population as a whole"). We elaborated on this history in In re Hickson :
In colonial Pennsylvania, crimes were viewed as an offense against the individual victim, and private prosecutions were the most common mode by which the criminal justice system functioned in the colonial era. This was consonant with the English common law principle that the Crown did not supply a public prosecutor to handle routine felonies. The victim or his family was therefore required to hire counsel to bring the guilty party into the criminal justice system. In fact, the victim served a multi-function role, in which he apprehended, prosecuted, and sometimes even jailed the accused.
In the post-Revolutionary era, the state, as the representative for society as a whole, began to be seen as the injured party in criminal matters, and the role of the government in prosecuting criminal matters began to grow; ultimately, the Pennsylvania Legislature established the office of district attorney in 1850. Yet, with this shift in how crimes were generally prosecuted, a citizen's right to pursue his victimizer in criminal courts via a private criminal complaint was never abolished in this Commonwealth. Rather, the Legislature enshrined it in statutory enactments, and later, this [C]ourt provided an avenue via the predecessor to Rule [5]06.
Id . at 1244 (internal quotations, citations, and brackets omitted).
The "statutory enactments" referenced above warrant particularly close inspection. As noted, "[i]n 1850 the General Assembly enacted legislation transferring the duties performed by [the Attorney General] to an official elected by the voters of the county and designated ‘district attorney,’ Act of May 3 ,1850, P.L. 654, § 1." Com. ex rel. Specter v. Freed , 424 Pa. 508, 228 A.2d 382, 384 (1967). Sixteen years later, the General Assembly passed the Act of March 12, 1866, P.L. 85, § 1 which remains unchanged to this day as 16 P.S. § 7710 ("when private counsel allowed to prosecute"). It states:
If any district attorney, within this Commonwealth, shall neglect or refuse to prosecute, in due form of law, any criminal charge, regularly returned to him, or to the court of the proper county; or if, at any stage of the proceedings, the district attorney of the proper county, and the private counsel, employed by the prosecutor, should differ as to the manner of conducting the trial, it shall be lawful for the prosecutor to present his or her petition to the court of the proper county, setting forth the character of the complaint, and verify the same by affidavit; whereupon, if the court shall be of the opinion that it is a proper case for a criminal proceeding or prosecution, it shall be lawful for it to direct any private counsel, employed by such prosecutor, to conduct the entire proceeding, and where an indictment is necessary, to verify the same, by his own signature, as fully as the same could be done by the district attorney; and this act shall apply to all criminal proceedings heretofore commenced, and still pending, as well as to those which shall be instituted hereafter.
This statute originally applied to all elected district attorneys in the Commonwealth. In 1953 it was repealed as to counties of the second class, and then repealed again in 1955 as to counties of the third through eighth classes. See 16 P.S. § 3000.3901, § 6301. Today, 16 P.S. § 7710 resides within the part of the County Code that applies only to counties of the first class, i.e. , Philadelphia. As for all other counties, the General Assembly enacted 16 P.S. § 4408 in 1953 and 16 P.S. § 1409 in 1955, both titled "[w]hen private counsel may prosecute." These statutes now govern second class counties and counties of the third through eighth classes, respectively. Only a few insignificant textual differences exist between these two statutes and 16 P.S. § 7710. I focus on 16 P.S. § 7710 (which I recognize would not govern this case from Montgomery County) solely because it is the historical legislative source from which the other two were derived.
879 A.2d at 217 (cleaned up) (citing Commonwealth v. Metzker , 442 Pa.Super. 94, 658 A.2d 800, 801 (1995) ).
To my knowledge, 16 P.S. § 7710 is the oldest and only statute — aside from its siblings, 16 P.S. §§ 1409 and 4408 — enacted by our General Assembly that has anything to do with the private criminal complaint system. Yet, the only interpretive insight this Court has provided concerning this authority was in McHale , nearly 150 years ago. In that case the losing candidate in the 1877 general election for district attorney of Schuylkill County, W. John Whitehouse, believed several individuals had engaged in a conspiracy to fraudulently increase the vote count of his opponent, Adolph W. Schalck. Seeking their prosecution, Washington
presented to the court [of common pleas a] petition, under [ 16 P.S. § 7710 ], setting forth that a difference of opinion as to the proper manner of proceeding has occurred ... in that the district attorney [i.e. , Schalck] has refused to sign and send before the grand jury the bills of indictment prepared by the private counsel [employed by Washington], ... and praying the court to direct the private counsel, Guy E. Farquhar, Esq., ... to conduct the entire proceedings, and if necessary to verify the indictments by his own signature.
McHale , 97 Pa. at 398 (internal quotations omitted). The trial court gave District Attorney Schalck "an opportunity to sign the bills" of indictment; when he refused, the court granted Washington's petition "and appointed [Attorney Farquhar] special district attorney to prosecute the cases." Id. After he was sworn in, Attorney Farquhar "signed and presented the indictments to the grand jury, ... which body found a true bill in each case." Id. The indictments were later quashed, but this Court reinstated them on appeal.
Of particular relevance here, the McHale Court rejected the defendants’ argument that Attorney Farquhar's "appointment was illegal because the Constitution adopted since the act of 1866 was passed,[ ] makes the district attorney a constitutional officer, and as such he cannot be stripped of his powers by the legislature." Id. at 406. The Court found "little force in this suggestion[,]" concluding that
Article XIV of the Constitution of Pennsylvania of 1874 designated the district attorney a "[c]ounty officer" for the first time; this designation continues today, though the provision has since been relocated. See PA. Const. art. IX, § 4.
Id. at 223 (Bowes, J., dissenting) (citing Benz, 565 A.2d at 764 ).
[w]hile the legislature may not abolish the office, it can control the officer. They can regulate the performance of his duties, and punish him for misconduct, as in the case of other officers. And where he neglects or refuses to act, or where, from the circumstances of a given case, it is improper and indelicate for him to act, it is competent for the legislature to afford a remedy. This is all that [ 16 P.S. § 7710 ] does, and we think its provisions are not obnoxious to any constitutional provision.
Id.
McHale is enlightening. For one thing, it provides historical context for some of the unfamiliar terms that appear in 16 P.S. § 7710 (as well as in 16 P.S. §§ 1409 and 4408 ), particularly the phrase "private counsel employed by the prosecutor." Although common sense suggests "prosecutor" and "district attorney" are one and the same, McHale teaches that "prosecutor" in this context actually means "private criminal complainant." That is the only explanation for why the McHale Court permitted Attorney Farquhar, the private counsel employed by Washington, the private criminal complainant, to prosecute in District Attorney Schalck's stead. Equally illuminating is how the Court described the statute's mechanism for replacing the elected district attorney with the private criminal complainant's counsel: as a "remedy." In the Court's words, "all [ 16 P.S. § 7710 ] does" is "afford a remedy" when a district attorney "neglects or refuses to act, or where, from the circumstances of a given case, it is improper or indelicate for him to act." Id.
In Commonwealth v. Mayfield , ––– Pa. ––––, 247 A.3d 1002 (2021), we addressed whether a trial court erred in removing a district attorney from a case and appointing a private defense attorney to handle the matter. We unanimously held it did, explaining that "nothing in the Commonwealth Attorneys Act, [71 P.S. §§ 732-101 –732-506,] or in any other statute , authorizes trial courts to deputize private attorneys to represent the Commonwealth in criminal matters." Id. at 1003 (emphasis added). It appears we may have spoken a bit too broadly with respect to the bolded dicta above, given that 16 P.S. §§ 1409, 4408, and 7710 all authorize courts to appoint private attorneys to handle criminal prosecutions, as confirmed by McHale . See also Kyle v. McNamara & Criste , 506 Pa. 631, 487 A.2d 814, 816 (1985) ("16 P.S. § 1409 allows private counsel to act as prosecutor in limited situations where the District Attorney neglects or refuses to prosecute a complaint"). Nevertheless, Mayfield is otherwise sound because that matter did not involve a private criminal complaint, meaning the trial court could not have relied upon any of these statutes.
Tr. Ct. Op. at 16.
As McHale demonstrates, the trio of legislative enactments pertaining to private criminal complaints is "not synonymous" with Pa.R.Crim.P. 506. Hickson , 821 A.2d at 1242 n.3. Whereas the statutes grant a clear (if unconventional) remedy — the right to have the private complainant's attorney "conduct the entire proceeding" on the district attorney's behalf, 16 P.S. § 7710 — the rule facially provides none. Maybe the difference is insignificant; after all, we have described one of these statutes, 16 P.S. § 1409, as an entirely "separate ... vehicle for bringing a private criminal complaint" from Rule 506. Id. But it's also possible that statement is wrong. Our constitutional rulemaking authority is broad, but it is not limitless. See PA. CONST. art. V, § 10 (granting this Court rulemaking authority to the extent it does not "abridge, enlarge, [or] modify the substantive rights of any litigant"). The notion Rule 506 exists in a legal vacuum, unmoored to legislative authority granting private individuals a substantive right to intervene in the prosecutorial affairs of an elected member of the executive branch, seems untenable. See generally Commonwealth v. McMullen , 599 Pa. 435, 961 A.2d 842, 847 (2008) ("As a general rule, substantive law creates, defines, and regulates rights; procedural law addresses the method by which those rights are enforced."). It is perhaps more likely that Rule 506 ’s ancestor was adopted merely to complement the relevant statutes, by giving the district attorney a chance to "approve the complaint in the first instance," before the complainant involves the judiciary, a co-equal branch of government. Benz , 565 A.2d at 769 (Larsen, J., concurring).
If that is the case though, and Rule 506 is meant to work in tandem with those legislative enactments providing a substantive remedy of private prosecution, then it would appear courts have assumed a power to compel public prosecution that — in addition to raising legitimate separation of powers concerns — is not supported by the rule's text and, in fact, conflicts with the statutory source the rule is meant to serve. See Brown , 708 A.2d at 88 n.6 (Cappy, J.) (opinion in support of reversal) (court order forcing Attorney General to "go forward with the prosecution of [a] private criminal complaint" was "at odds with the legislative directive found in 16 P.S. § 1409, which would require the attorney bringing the private criminal complaint to prosecute same").
Maj. Op. at 109.
These are difficult questions. And as Justice Wecht rightly points out, the parties have not "develop[ed] arguments about what relief the judicial creation that is Rule 506 might afford, its history, and whether that relief might offend the delicate balance between coordinate branches of our government." Concurring & Dissenting Opinion at 17 (Wecht, J.). We also lack briefing on the interplay between Rule 506 and 16 P.S. §§ 1409, 4408, and 7710. More importantly, at oral argument the Commonwealth forthrightly stated it had not preserved or raised any of these "thorny constitutional questions," so they are not properly before us today. Id . at 15. In my view, however, we should consider them in a proper case should one arise. In the meantime, I join the majority opinion in full.
JUSTICE WECHT, concurring and dissenting
This Court's two most recent voyages into the complex universe of Rule 5061 private criminal complaints— Commonwealth v. Benz , 523 Pa. 203, 565 A.2d 764 (1989) and Commonwealth v. Brown , 550 Pa. 580, 708 A.2d 81 (1998) (" Brown II ")—resulted in fractured opinions, divergent reasoning, and an unwieldy standard. In several respects, I join the Majority's efforts to repair and reshape this corner of our jurisprudence. For instance, I too would eliminate the distinction between the disapproval of a private criminal complaint for legal reasons (in which case trial courts would have engaged in de novo review) and policy reasons (in which case trial courts would have engaged in abuse of discretion review).2 Furthermore, I agree that Benz should be overruled insofar as it holds that a private complainant need merely establish a prima facie case in order for a court to compel prosecution.3
The Majority's "bad faith, fraud, or unconstitutionality" standard, though, goes much further, and threatens to render the private criminal complaint process a nullity. I would instead adopt the familiar abuse of discretion standard. This would preserve the core function of the private criminal complaint under Rule 506.
I disagree as well with the Majority's application of its own standard of review to the record before us. I would affirm the substantive reasoning of the courts below, vacate the Superior Court's order, and remand this dispute for briefing on the looming separation of powers issue associated with providing a remedy in Rule 506 cases.
I.
The Majority rightly retires the structure under which the asserted basis for a district attorney's disapproval of a private criminal complaint dictated the applicable standard of review. The distinction between a decision based upon "legal conclusions" and one based upon "policy considerations" in this context is both opaque and malleable. The competing opinions in In re Wilson , 879 A.2d 199 (Pa. Super. 2005) (en banc ) are illustrative. There, an en banc majority of the Superior Court endorsed the following analysis from a trial court that found no abuse of discretion:
The District Attorney's first basis for disapproving the private criminal complaint—that the likelihood of conviction is minimal and/or the likelihood of acquittal is great—indicates a lack of prosecutorial merit. This is a policy determination. Likewise, the determination that the victim has adequate civil remedies available to him is a policy reason for refusing to prosecute the complaint.4
According to one of the dissents, though, the district attorney's conclusion "that the likelihood of conviction was minimal" did not implicate policy; rather, it "constituted a legal evaluation of the evidence ... subject to appellate de novo review."5
The fact that the Wilson majority and dissent both reach wholly reasonable yet contradictory conclusions demonstrates the confusion that we alleviate today. The decision that a complaint lacks prosecutorial merit ordinarily will proceed from an assessment of the underlying legal questions. However, the way in which a prosecutor wields the Commonwealth's resources, prioritizes certain crimes over others, or directs complainants to alternate paths of relief all implicate the exercise of discretion. In the case sub judice , the prosecutor asserts that "the Montgomery County District Attorney's office does not approve complaints alleging a felony."6 This appears to be a "policy," in the colloquial sense. But it is ultimately a legal determination that would sort some complaints into that category and others out of it, as the decisive question would be whether a private complainant has alleged facts that, if proven, would constitute a felony. Neither conclusion is outlandish; it is the purported distinction itself that invites conflation. Rather than tumble further down this rabbit hole, the Majority wisely directs trial courts to review disapprovals of private criminal complaints under a unitary standard, regardless of the prosecutor's reasoning.
But the Majority goes much further. It proceeds to hold that "a court of common pleas may only overturn [a prosecutor's disapproval decision] if the private complainant demonstrates that the disapproval decision amounted to bad faith, occurred due to fraud, or was unconstitutional."7 This standard, born from Brown II , was intended to apply only to disapprovals based in policy. Therefore, if the bifurcation between legal reasons and policy reasons no longer exists, adopting it for all cases functions to devastate our decisions in Benz and Brown II , which I will now briefly review.
See 708 A.2d at 84 (Opinion in Support of Affirmance) ("OISA"); id. at 86 (Opinion in Support of Reversal) ("OISR").
In Benz , an off-duty police officer's gun discharged during an altercation with Paaron Jones, resulting in the latter's death. Though the coroner recommended that the officer, Benz, be charged with voluntary manslaughter, the district attorney filed no charges. The prosecutor reasoned that the eye-witness testimony was too disjointed, and that forensic evidence supported the conclusion that the two men had wrestled over the weapon, resulting in accidental discharge. Jones’ mother then filed a private criminal complaint under the progenitor to Rule 506, Rule 133. The district attorney disapproved the complaint, citing insufficient evidence. The court of common pleas found no abuse of discretion, but the Superior Court reversed on the basis that there was indeed sufficient evidence to support a prima facie case against Benz.
See Benz , 565 A.2d at 768 (Opinion Announcing the Judgment of the Court) ("OAJC") ("the decision to decline prosecution resulted from [the district attorney's] determination that the evidence would not sustain a prima facie case").
This Court affirmed. The plurality found that the "evidence ... unquestionably established a homicide," and that "the person responsible for the death of [Jones] was [Benz]." Whether that homicide was "justifiable or excusable" was a "matter of defense," which could be raised at trial, and did not negate the finding of a prima facie case. Had the district attorney "stated policy reasons to support the decision not to prosecute," the plurality readily admitted that it "would show the deference accorded to such a discretionary use of the executive powers conferred in that officer." But because the decision "not to prosecute was based upon a legal determination of the sufficiency of the evidence to establish a prima facie case," it was the "type of decision [that was] within the purview of the judicial system to review." Justice Larsen concurred in the result and wrote separately to express his "vehement disagreement with the [plurality's] interpretation and application of" Rule 133. Because the Rule "[did] not contemplate that criminal proceedings initiated by private complaint [would] be subject to the ‘policy’ and discretion of the district attorney," Justice Larsen opined, it "[did] not matter on what basis the prosecutor [made] his or her decision." Either way, the prosecutor's assessment of whether Jones’ mother had established a prima facie case was "within the purview of the judicial system to review."
Id. at 767.
Id. (citing Commonwealth v. Capitolo , 508 Pa. 372, 498 A.2d 806 (1985) ).
Id. n.4.
Id. at 768.
Id. (Larsen, J., concurring).
Id. at 769.
Id. Justice Larsen noted that "until 1974, private criminal complaints were not subject to review by the district attorney," and "it was for the courts , through the office of an issuing authority, to determine ... whether (1) the complaint was properly completed and executed; (2) the affiant was a responsible person; and (3) there was probable cause for the issuance of process." Id. (emphasis in original). The changes made in 1974, he argued, "merely concerned who was to approve the complaint in the first instance." Id. (emphasis in original).
In Brown II , a trial court concluded that the Attorney General committed a gross abuse of discretion in failing to bring charges of perjury, criminal conspiracy, false reporting, and evidence tampering. The Superior Court affirmed that result, finding that the Attorney General had produced "no evidence of a clearly defined policy that is consistently used to review the merits" of a private criminal complaint, and opined that "[a] prosecutor ... cannot simply assert that it is against its policy to prosecute." Rather, the prosecutor "must demonstrate that a clearly defined policy has been established that can be uniformly applied to such complaints." The "vague claim of ‘policy’ " was insufficient.
The complainant in Brown II had named the local district attorney as a co-conspirator, creating a conflict of interest for that office. See Brown II , 708 A.2d at 83.
Commonwealth v. Brown , 447 Pa.Super. 454, 669 A.2d 984, 992 (1995) ("Brown I ").
Id.
Id.
An evenly-divided Court in Brown II affirmed the holding of Brown I . While the OISA and the OISR differed as to the definition and application of bad faith, the Justices supporting reversal agreed that the Justices supporting affirmance had "[set] forth the correct standard of review," which "sufficiently safeguard[ed] the concept of separation of powers." In a footnote, those Justices explicitly endorsed the rule that does not survive today's opinions: "[w]here the prosecutor's decision is based on a legal conclusion[,] this [C]ourt may exercise de novo review of the sufficiency of that legal conclusion."
Brown II , 708 A.2d at 86 (OISR).
Id. at 86 n.1.
I find Benz to be poorly reasoned, and I would therefore discard its holding. Compelling prosecution whenever a private criminal complainant makes out a prima facie case, without regard to the availability of affirmative defenses or the credibility of witnesses, sets the bar too low. I discern no interest that would be served by prosecutors being forced to bring cases that they reasonably believe are likely to result in not-guilty verdicts in light of available defenses, such as accident, duress, or self-defense. Suppose that a burglar attacks a homeowner, and the homeowner successfully defends herself, killing the burglar. It would be ludicrous if a private complainant could compel a prosecutor to bring criminal homicide charges against the homeowner, notwithstanding the prosecutor's reasonable determination that the homeowner was entitled to protect herself with lethal force under the "castle doctrine" and that such defense would be unassailable at trial.
When confronted with a fragmented decision, where "no single rationale explaining the result enjoys the assent of [a majority of] Justices," this Court follows the approach taken in Marks v. United States , 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) : "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds." See Commonwealth v. Alexander , ––– Pa. ––––, 243 A.3d 177, 197 (2020) ("We apply the Marks rule."). There are numerous examples of this Court applying the Marks rule. See, e.g. , Commonwealth v. McClelland , 660 Pa. 81, 233 A.3d 717, 733 (2020) (finding that, although Commonwealth ex rel. Buchanan v. Verbonitz , 525 Pa. 413, 581 A.2d 172 (1990) was "nominally a plurality decision, it [was] clear that a five-member majority of the Court" held that hearsay evidence alone is insufficient to establish a prima facie case at a preliminary hearing); Commonwealth v. Yohe , 621 Pa. 527, 79 A.3d 520, 553 (2013) (finding that both "the lead opinion and [a] concurring opinion" in Williams v. Illinois , 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012) determined a report to be non-testimonial); City of Phila. v. Clement & Muller, Inc. , 552 Pa. 317, 715 A.2d 397, 398-9 (1998) (finding precedential value in Commonwealth v. Wilsbach Distributors, Inc. , 513 Pa. 215, 519 A.2d 397 (1986), where two Justices voted for the OAJC and two Justices concurred); Commonwealth v. Haefner , 473 Pa. 154, 373 A.2d 1094, 1095 (Pa. 1977) (discerning a holding from Commonwealth v. Bolden , 472 Pa. 602, 373 A.2d 90 (1977), where one Justice joined the OAJC, a third Justice concurred in the result, and a fourth Justice filed a concurring opinion).
Though Justice Larsen objected to the notion that "criminal proceedings initiated by private complaint [would] be subject to the ‘policy’ and discretion of the district attorney," he agreed with the Benz plurality that courts could review a district attorney's disapproval of a private criminal complaint on legal grounds for errors of law. See 565 A.2d at 769 (Larsen, J., concurring). In Benz , then, four Justices agreed that because Jones’ mother had established a prima facie case of voluntary manslaughter, the trial court could compel the district attorney to commence prosecution.
See Commonwealth v. Dantzler , 135 A.3d 1109, 1114 (Pa. Super. 2016) (recognizing that "a prima facie case is a low threshold of proof").
See 18 Pa.C.S. § 505(b)(2.1) ; Commonwealth v. Childs , 636 Pa. 322, 142 A.3d 823, 824 n.1 (2016) (explaining that "the castle doctrine is a specialized component of self-defense, which recognizes that a person has no duty to retreat from his or her home before using deadly force as a means of self-defense").
Furthermore, while I recognize that it ordinarily is inappropriate for a court to make credibility determinations at a preliminary hearing, the private criminal complaint process must, like a preliminary hearing, serve to protect the right of the accused against unlawful arrest and detention. The law surrounding Rule 506 must account for the fact that private complainants inevitably will be interested parties, who—unlike district attorneys—do not necessarily have any legal training and were not entrusted by their communities with the exercise of prosecutorial authority. Imagine, for instance, that a private complaint is filed alleging an assault at a nightclub, and the complainant produces only his friends, all of whom were inebriated when the incident occurred, as witnesses. Under Benz , this hypothetical complainant would have made out a prima facie case and could compel action. More is required.
See Commonwealth v. Perez , ––– Pa. ––––, 249 A.3d 1092, 1102 (2021).
See id.
But if Benz set the bar too low, the Majority sets the bar too high. The Majority allows for relief only where a private complainant can demonstrate bad faith, fraud, or unconstitutionality in the prosecutor's decision-making. Imagine that a prosecutor acting in good faith disapproves a Rule 506 complaint that describes a kidnapping. The prosecutor grounds his decision in the fact that the alleged perpetrator did not confine his victim to a remote geographic location. The complainant might cite this Court's opinion in Commonwealth v. Rushing , 627 Pa. 59, 99 A.3d 416, 425 (2014), to establish that a "place of isolation," as required by the statute, "is not geographic in nature, but contemplates the confinement of a victim where he or she is separated from the normal protections of society in a fashion that makes discovery or rescue unlikely." The prosecutor would be incorrect as a matter of law. But it could not be said—and would be nearly impossible to prove—that the prosecutor made his decision in bad faith, or with fraudulent or unconstitutional aims in mind.
See Maj. Op. at 109.
See 18 Pa.C.S. § 2901(a).
Instead, I would adopt a familiar definition of what constitutes an abuse of discretion, thereby preserving the core of our current Rule 506 jurisprudence and allowing for relief where a prosecutor's decision results from clear legal error. This Court has said many times that "[a]n abuse of discretion exists when [a] trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will." We also have stressed that an abuse of discretion is not merely an error of judgment, and that it includes instances of the law being overridden or misapplied. Private complainants could find relief from decisions based in legal error, as well as decisions made in bad faith or with fraudulent or unconstitutional aims. They could not, however, compel action where a district attorney reasonably determines that a case lacks credible evidence or is doomed to go nowhere in light of an affirmative defense.
Harman ex rel. Harman v. Borah , 562 Pa. 455, 756 A.2d 1116, 1123 (2000). See also Metal Green Inc. v. City of Phila. , ––– Pa. ––––, 266 A.3d 495, 513 (2021) (quoting Harman ); Mader v. Duquesne Light Co. , ––– Pa. ––––, 241 A.3d 600, 607 (2020) (same); Commonwealth v. Banks , 612 Pa. 56, 29 A.3d 1129, 1135 (2011) (citing Commonwealth v. Frey , 588 Pa. 326, 904 A.2d 866, 872 n.9 (2006) (same)).
See Paden v. Baker Concrete Construction, Inc. , 540 Pa. 409, 658 A.2d 341, 343 (1995).
See Mielcuszny v. Rosol , 317 Pa. 91, 176 A. 236, 237 (1934) (holding that "if in reaching a conclusion the law is overridden or misapplied ... discretion is abused").
See Mielcuszny , 176 A. at 237 ("if in reaching a conclusion the law is overridden or misapplied ... discretion is abused"); Harman , 756 A.2d at 1123 (including within the abuse of discretion standard those instances where the entity wielding that discretion "has failed to apply the law").
See id. (including within the abuse of discretion standard decisions that are "arbitrary, or capricious ... or ... motivated by partiality, prejudice, bias, or ill will").
See id. (including within the abuse of discretion standard those instances where the entity wielding that discretion renders "a judgment that is manifestly unreasonable").
Perhaps the most consequential difference between an abuse of discretion standard and the "bad faith, fraud, or unconstitutionality" standard is that the former still requires a prosecutor to wield his or her discretion and to justify a disapproval decision. If a district attorney disapproves a Rule 506 complaint and offers no explanation whatsoever, the complainant could argue that the decision was "arbitrary" or "capricious." Proving that a wordless refusal resulted from "bad faith, fraud, or unconstitutionality," on the other hand, would be like wringing water from a stone. In adopting such a stringent standard, the Court renders the private criminal complaint review process so difficult to navigate that review effectively becomes a nullity.
II.
My views concerning the proper framework for the evaluation of Rule 506 complaints aside, I further oppose the Majority's decision to apply, in the first instance, its new standard to the facts of the controversy before us instead of remanding the matter for further development by the parties. The Majority states that it "cannot conclude that the [district attorney's] decision to disapprove the [c]omplaint ... amounted to bad faith, occurred due to fraud, or was unconstitutional." But it simultaneously recognizes that whether the prosecutor abused her discretion is not our question, and that, "under ordinary circumstances, we would be ‘limited to ascertaining the propriety of the trial court's actions.’ " The Superior Court has established that it will not disturb a trial court's ruling regarding a Rule 506 complaint
Maj. Op. at 110.
Id. at 110 (emphasis added) (quoting Brown I , 669 A.2d at 990 ).
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.
Michaliga , 947 A.2d at 792. With respect to certain questions, trial courts that observe disputes unfolding in real time have a better vantage point than appellate courts, which are limited to review of cold records. See Interest of S.K.L.R. , ––– Pa. ––––, 256 A.3d 1108, 1129 (2021) ("trial courts are on the front lines"); Commonwealth v. McCracken , 540 Pa. 541, 659 A.2d 541, 551 (1995) (noting that trial courts have the opportunity to observe demeanor). Because the private criminal complaint review process frequently will call for an assessment of the prosecutor's alleged bad faith, partiality, or caprice—all of which might be grounded in first-hand observation of how arguments are presented or how litigation proceeds—I see no reason to depart from the Superior Court's rule in Michaliga , and I would adopt it as our own.
The Majority invokes the concept of judicial economy, and argues that "[t]he circumstances presented here are far from ordinary because, through this decision, [it has] created a new standard of review ... [which] the trial court could not have applied" below.
Maj. Op. at 110.
I disagree that the creation or modification of a legal rule by this Court represents a circumstance that is "far from ordinary." A significant portion of our docket deals with fashioning and tweaking standards for use in the lower courts, and the decision between remanding a case for adjudication in light of an opinion and resolving it ourselves is often a prudential one. Here, I discern no reason why Ajaj should not be afforded the opportunity to develop new arguments and to hone those he has already raised in light of a new rule. He submitted briefing that followed precedent as it existed at the time of his appeal, prevailed before the trial court and the Superior Court, and cannot be expected to have argued or satisfied an unknown standard.
Id.
Compare Commonwealth v. Melendez , 544 Pa. 323, 676 A.2d 226, 231 (1996) (adopting a limitation upon the independent source rule and then applying it to the case sub judice without remand), with Commonwealth v. Romero , 646 Pa. 47, 183 A.3d 364, 406 (2018) ("[W]e remand this case to allow the Commonwealth the opportunity to introduce the arrest warrant ... pursuant to the standard we have articulated herein[.]").
Even if this Court were to apply the new standard to the facts before us, the Superior Court's order should be affirmed. We must recognize that, in this case, the trial court's ruling did not turn upon the now-defunct de novo standard of review for legal reasons alone. Judge Tilson also concluded that the Commonwealth's asserted policy considerations "fail[ed] to pass muster" under the abuse of discretion standard. The judgment in favor of Ajaj therefore was based upon two alternative grounds, and we may disturb it only if "the record contains no reasonable grounds for the court's decision." I would find that such reasonable grounds exist, even under the "bad faith, fraud, or unconstitutionality" standard.
Tr. Ct. Op. at 27.
Michaliga , 947 A.2d at 792.
Because the Majority finds that "the Commonwealth's evidentiary concerns ... are sufficient to support its discretionary decision to disapprove" Ajaj's complaint, it does not consider the policy-based reasons that the prosecutor advanced. However, the interplay between the prosecutor's evidentiary justification and her policy justifications was pivotal to the trial court's analysis. Judge Tilson's reasoning revolved around the fact that the prosecutor "changed tack," put Ajaj "at a disadvantage by leading him to believe he would be entitled to de novo review ... only to heighten the standard of review" when the prosecutor belatedly raised policy concerns, and "wait[ed] almost two months after the filing of [Ajaj's] complaint and more than thirty days after disapproving it to raise" an alternative justification for disapproval. The trial court found that ADA Ringwood abused her discretion "in purporting to base disapproval of [Ajaj's] private criminal complaint," on policy, and the court repeatedly used scare quotes around references to "policy reasons," suggesting doubt as to the genuineness of those reasons.
Maj. Op. at 110 n.12.
Tr. Ct. Op. at 15.
Id. at 20.
Id. at 20-21.
Id. at 27 (emphasis added).
See id. at 15 ("previously unarticulated ‘policy’ reasons"); id. at 20 ("the broad-ranging ‘policy concerns’ that it did not raise"); id. at 27 ("[t]he Commonwealth's belatedly-raised ‘policy reasons’ for disapproving the private criminal complaint"); id. at 27-28 ("but that is not what the District Attorney's alleged ‘policy decision’ here says"); id. at 28 ("the District Attorney's alleged ‘policy’ of not prosecuting a felony on a private complaint").
Moreover, the existence of a policy by which "the Montgomery County District Attorney's Office does not approve private complaints alleging a felony" called into question the Commonwealth's citation of evidentiary concerns in the first place. As Judge Tilson acknowledged, it would have been "simple enough to have stated [this policy] at the outset," and the prosecutor "presented no evidence" of the policy's existence. Judge Tilson also recognized that the policy against approving Rule 506 complaints alleging a felony would "[wipe] from the books for consideration in the private complaint setting" a number of serious crimes, regardless of whether the complaint was well-founded. Indeed, such a categorical rule undermines the notion that the district attorney's office afforded Ajaj the individual review to which he is entitled or has wielded its discretion at all. It opens the door to capricious and unpredictable decision making. Herein lies another basis for allowing the trial court's judgment to stand.
Id.
Id.
Id.
While appellate jurists may have exercised their judgment differently had they been in Judge Tilson's position, that is neither here nor there. I discern nothing in the record that empowers this Court to cast the trial court's conclusion aside as unreasonable.
In light of precedent and the record, and cognizant of our limited appellate function, I would apply the abuse of discretion standard as described above and would affirm the reasoning of the trial court and the Superior Court insofar as those tribunals found that the Commonwealth abused its discretion in denying Ajaj's complaint. Barring that result, and in the alternative, this Court should vacate the Superior Court's order and remand, rather than apply its "bad faith, fraud, or unconstitutionality" standard in the first instance. Only by reinventing the rule, denying Ajaj the opportunity to argue under this reinvented rule, depriving the lower courts of the opportunity to apply the rule in the first instance, and omitting any analysis of the prosecutor's shifting rationales does the Majority avoid that result.
As an aside, I must distance myself from the Majority's suggestion that "[t]here is simply nothing about [the determination of whether a prosecutor's disapproval decision amounted to bad faith, occurred due to fraud, or was unconstitutional] that requires a court of common pleas to exercise discretion," and that an abuse of discretion standard would therefore be "improper" in this context. Maj. Op. at 110 n.11. Beyond the fact that, as discussed, our case law demonstrates that a misapplication of the law can constitute an abuse of discretion, see Mielcuszny 176 A. at 237, I note that appellate courts often review issues that appear to be pure questions of law through that lens. Reviewing a trial court's application of the concept of "bad faith, fraud, or unconstitutionality" is not so different from the manner in which we assess determinations about the admissibility of evidence or a party's interest in intervention that this Court should hesitate to apply the abuse of discretion standard here. See Commonwealth v. Flor , 606 Pa. 384, 998 A.2d 606, 623 (2010) ("We will not reverse a trial court's decision concerning admissibility of evidence absent an abuse of the trial court's discretion."); Wilson v. State Farm Mut. Auto. Ins. Co. , 512 Pa. 486, 517 A.2d 944, 947 (1986) ("It is well established that ‘a question of intervention is a matter within the sound discretion of the court below and unless there is a manifest abuse of such discretion, its exercise will not be interfered with on review.’ ") (quoting Darlington v. Reilly , 363 Pa. 72, 69 A.2d 84, 86 (1949) ).
III.
I would not, however, affirm the lower courts’ judgments in their entireties. Having found no reason to disturb those courts’ conclusions that the Commonwealth abused its discretion in denying the Rule 506 complaint, I discern thorny constitutional questions that arise concerning the remedy to which Ajaj is entitled.
While the Brown II Court split three-to-three regarding the application of relevant law to the facts of that case and the definition of bad faith, even those who voted to reverse explicitly recognized that the standard of review in Rule 506 cases "sufficiently safeguards the concept of separation of powers which [was] at the heart of [the] appeal." I believe that this assertion would benefit from the Court's attention. The private criminal complaint has a long history in our Commonwealth. At Pennsylvania's founding, "private citizens were the driving force behind criminal prosecutions."
Brown II , 708 A.2d at 86 (Opinion in Support of Reversal) (emphasis added).
Beth A. Brown, Note, The Constitutional Validity of Pennsylvania Rule of Criminal Procedure 133(b)(2) and the Traditional Role of the Pennsylvania Courts in the Prosecutorial Function , 52 U. Pitt. L. Rev. 269, 274 (1990) ("Brown Note"). Rule 133 was a precursor of Rule 506.
When a crime was committed in early colonial times, the victim searched for the criminal, arrested him (or paid the local sheriff to make the arrest), drew up indictments, prosecuted the criminal personally (or hired a prosecutor), and sometimes even served as the criminal's jailer if the criminal could not make restitution for his crime. Thus, our colonial forefathers performed the roles of police, prosecutors, and jailers. This system was a result of the overwhelming influence of both English common law and procedure, and the belief that crime was an offense against an individual victim.
Id.
Public prosecution steadily became the norm over the course of the 19th century, and our General Assembly provided for the election and installment of district attorneys for the first time in 1850. But several states "resisted the extinction of the private prosecutor and attempted to preserve some role for the private citizen in criminal proceedings." Pennsylvania joined this trend when it adopted the Act of March 12, 1866, which empowered citizens to petition a court to initiate criminal proceedings upon a private complaint, and allowed them to conduct the entire proceedings themselves, as if they were district attorneys.
See Commonwealth ex re. Specter v. Bauer , 437 Pa. 37, 261 A.2d 573, 575 (1970).
Brown Note at 275; see also Note, Private Prosecution: A Remedy for District Attorneys’ Unwarranted Inaction , 65 Yale L. J. 209, 218-19 (1955) (recognizing that, as late as the mid-20th century, thirty states retained private criminal prosecution in some form or another).
See 1866 Pa. Laws 85 § 1.
This Court confronted that statute's constitutionality several years later on separation of powers grounds. We held that
[w]hile the legislature may not abolish the office [of district attorney], it can control the officer. [It] can regulate the performance of his duties, and punish him for misconduct, as in the case of other officers. And where he neglects or refuses to act, or where ... it is improper or indelicate for him to act, it is competent for the legislature to afford a remedy. This is all that the Act of 1866 does, and we think that its provisions are not obnoxious to any constitutional provision.
Commonwealth v. McHale , 97 Pa. 397, 406 (1881). District attorneys undoubtedly have "generally and widely recognized power to conduct criminal litigation ... to decide whether and when to prosecute, and [to decide] whether and when to continue or discontinue a case." It appears that the private criminal complaint process was intended to serve as a carve-out from that general authority.
Brown II , 708 A.2d at 84.
I acknowledge this history and our holding in McHale only to suggest that the issues of remedy and the separation of powers in these cases are complex. We do not have briefing before us addressing these issues. Neither Ajaj nor the Commonwealth develops arguments about what relief the judicial creation that is Rule 506 might afford, its history, and whether that relief might offend the delicate balance between coordinate branches of our government. The Attorney General and the Pennsylvania District Attorneys’ Association raise some of these arguments as amici , but those arguments are not properly before the Court, and even they recognize private criminal complaints as "[o]ne very narrow exception" to the rule that prosecutors wield great, nearly-unfettered discretion.
While I reserve judgment upon this question until a case is properly before the Court, I acknowledge that some remedies might offend the separation of powers, while others might not. For instance, it is conceivable that a court's order commanding a prosecutor to act would pose a greater threat to our constitutional order relative to an order instructing the same prosecutor to reconsider his or her decision in light of a trial court's opinion. Perhaps the option of an aggrieved private complainant, like Ajaj, hiring private counsel who could then (if judicially approved) operate in the district attorney's proverbial shoes would fall somewhere in between. See 16 P.S. § 1409 ("If any district attorney shall neglect or refuse to prosecute in due form of law any criminal charge regularly returned to the district attorney or to the court ... the prosecutor may present a petition to the court [and] if the court is of the opinion that it is a proper case for a criminal proceeding or prosecution, it may direct any private counsel employed by such prosecutor to conduct the entire proceeding").
See Commonwealth v. Cotto , 562 Pa. 32, 753 A.2d 217, 224 n.6 (2000) ("[a]n amicus curiae is not a party and cannot raise issues that have not been preserved by the parties")
Amicus Curiae Br. at 13.
Without the benefit of developed advocacy on this constitutional question, I would affirm the substantive rationale below, vacate the Superior Court's order, and remand the case with instructions for the parties to submit briefing to that court regarding remedy. Because I believe that the Majority defangs the private criminal complaint process, applies its newly-articulated standard of review without giving the parties the opportunity to tailor their arguments to that standard, and escapes consideration of the looming separation of powers issue, I respectfully dissent.