In Re: Miscellaneous Orders Appeal of: Drust, N. ( 2015 )


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  • J-S38013-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: MISCELLANEOUS ORDERS                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    APPEAL OF: NICHOLAS DRUST
    No. 1931 MDA 2014
    Appeal from the Order Entered on October 20, 2014
    In the Court of Common Pleas of Luzerne County
    Criminal Division at No.: CP-40-MD-0000931-2014
    BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.
    MEMORANDUM BY WECHT, J.:                             FILED AUGUST 12, 2015
    Nicholas Drust appeals the October 20, 2014, order affirming the
    Luzerne County District Attorney’s Office’s disapproval of Drust’s private
    criminal complaint. We affirm.
    The trial court recited the procedural and factual history of this case as
    follows:
    On July 3, 2013, at approximately 8:00 pm, an altercation
    occurred on Heslop Road, Rice Township, Luzerne County. Four
    individuals were involved in the altercation, shots were fired, and
    two individuals were injured.
    As a result of the incident, charges were filed against Robert
    Drust and [Nicholas Drust]. [Drust1] was charged with criminal
    attempt to commit criminal homicide, aggravated assault and
    recklessly endangering another person.       Robert Drust was
    charged with possession of a controlled substance, possession of
    a small amount of marijuana, possession of drug paraphernalia,
    ____________________________________________
    1
    For clarity, “Drust” will refer to Nicholas Drust and not his father,
    Robert Drust.
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    simple assault, harassment and disorderly conduct. No charges
    were filed by law enforcement against the other two individuals,
    Larry Papach and Harry Kemmerer.
    A preliminary hearing was scheduled for August 14, 2013 before
    Magisterial District Judge Ronald W. Swank on the charges filed
    against [Drust] and Robert Drust. At the time of the hearing,
    counsel for [Drust] advised the [trial court] that [Drust] intended
    to file a private criminal complaint against Larry Papach and
    Harry Kemmerer.        This resulted in a continuance of the
    preliminary hearing.
    On September 18, 2013, [Drust] filed two private criminal
    complaints with Magisterial District Judge Swank. One complaint
    charged Larry Papach with false imprisonment, criminal
    conspiracy to commit false imprisonment, attempted criminal
    homicide, four counts of aggravated assault and two counts of
    recklessly endangering another person. The second complaint
    charged Harry Kemmerer with false imprisonment and criminal
    conspiracy to commit false imprisonment.
    Both complaints were forwarded to the Office of the Luzerne
    County District Attorney for review in accordance with
    Pa.R.Crim.P. 506(A). By letter dated July 7, 2014[,] counsel for
    [Drust] was notified that the private criminal complaints against
    Larry Papach and Harry Kemmerer were disapproved. With
    regard to the reason for the disapprovals, the Luzerne County
    District Attorney stated[,] “[b]ased upon the totality of the
    investigation of the incident in question, and the controlling legal
    principles, the charges proposed on these Private Criminal
    Complaints are disapproved. The Commonwealth believes that
    these charges filed against Mr. Nicholas Drust were appropriately
    filed and will be pursued.”
    On September 18, 2014, [Drust] filed a petition pursuant to
    Pa.R.Crim.P. 506(B)(2) to Review and Reverse District Attorney’s
    Disapproval of two Private Criminal Complaints. On October 6,
    2014, [the trial court] heard argument from counsel for [Drust]
    as well as for the Commonwealth.
    Trial Court Opinion (“T.C.O.”), 10/20/2014, at pages 1-2 (unpaginated)
    (some capitalization modified).
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    The trial court considered and denied that petition in an order dated
    October 20, 2014.       Drust filed a timely notice of appeal on October 30,
    2014.
    Drust raises two issues for this Court’s consideration:
    1. Did the Common Pleas Court commit an error of law
    in affirming the district attorney’s declination
    decisions where de novo review of the private
    criminal complaints revealed prima facie cases with
    evidentiary merit?
    2. Did the Common Pleas Court misinterpret the district
    attorney’s    decisions as being    policy   based
    declinations?
    Brief for Drust at 2 (some capitalization modified).
    To proceed with a private criminal complaint, a complainant must
    secure the approval of an attorney for the Commonwealth.          Pa.R.Crim.P.
    506(A).    A prosecutor’s office is required to investigate a private criminal
    complaint after it is filed.   In re Wilson, 
    879 A.2d 199
    , 211 (Pa. Super.
    2005).    In deciding whether a prima facie case has been established, the
    prosecutor must consider both the content of the complaint, and the result
    of the investigation of the case. 
    Id. [E]ven if
    the facts recited in the complaint make out a prima
    facie case, the district attorney cannot blindly bring charges,
    particularly where an investigation may cause [him] to question
    their validity. Forcing the prosecutor to bring charges in every
    instance where a complaint sets out a prima facie case would
    compel the district attorney to bring cases [he] suspects, or has
    concluded via investigation, are meritless. The public prosecutor
    is duty bound to bring only those cases that are appropriate for
    prosecution.     This duty continues throughout a criminal
    proceeding and obligates the district attorney to withdraw
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    charges when [he] concludes, after investigation, that the
    prosecution lacks a legal basis.
    
    Id. at 211-212
    (citations omitted; brackets in original). If the attorney for
    the Commonwealth disapproves the complaint, the district attorney must
    notify the complainant of the reasons for the disapproval.      Pa.R.Crim.P.
    506(B)(2).    A private criminal complainant is permitted to seek judicial
    review of the denial of his or her complaint by the district attorney.
    Pa.R.Crim.P. 506.
    The trial court’s standard of review is dependent upon the reasons
    provided by the district attorney for the disapproval.   Commonwealth v.
    Cooper, 
    710 A.2d 76
    , 80 (Pa. Super. 1998). Where the district attorney’s
    denial is based upon a legal evaluation of the evidence, the trial court
    undertakes de novo review of the matter. 
    Id. Where the
    district attorney’s
    disapproval is based upon policy considerations, the trial court accords
    deference to the decision and will not interfere in the absence of bad faith,
    fraud, or unconstitutionality. 
    Id. at 79,
    80. In the event that the district
    attorney offers a hybrid of legal and policy reasons for disapproval,
    deference to the district attorney’s decision, rather than de novo review, is
    the correct standard to be employed. 
    Id. When seeking
    review in the trial court, a private criminal complainant
    bears the heavy burden of proving that the district attorney abused his
    discretion. In a Rule 506 petition for review:
    the private criminal complainant must demonstrate the district
    attorney’s decision amounted to bad faith, fraud or
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    unconstitutionality. The complainant must do more than merely
    assert the district attorney’s decision is flawed in these regards.
    The complainant must show the facts of the case lead only to the
    conclusion that the district attorney’s decision was patently
    discriminatory, arbitrary[,] or pretextual, and therefore not in
    the public interest. In the absence of such evidence, the trial
    court cannot presume to supervise the district attorney’s
    exercise of prosecutorial discretion, and should leave the district
    attorney’s decision undisturbed.
    In re 
    Wilson, 879 A.2d at 215
    .
    Our standard of review also depends upon the district attorney’s
    rationale for the disapproval. Where the district attorney’s decision is based
    solely upon legal conclusions, and the trial court’s standard of review is de
    novo, “the appellate court will review the trial court’s decision for an error of
    law. As with all questions of law, the appellate standard of review is de novo
    and the appellate scope of review is plenary.”            
    Id. at 214
    (footnotes
    omitted).     Where the district attorney’s decision is based upon policy
    considerations or a hybrid of legal and policy considerations, and the trial
    court’s standard of review is abuse of discretion, “the appellate court will
    review the trial court’s decision for an abuse of discretion, in keeping with
    settled principles of appellate review of discretionary matters.” 
    Id. at 215.
    In this case, the trial court determined that the district attorney based his
    disapproval    of   the   complaint   upon   a   hybrid   of   legal   and   policy
    considerations, and therefore, it gave deference to the district attorney’s
    decision.
    Drust’s general contention is that the trial court erred in determining
    that the district attorney’s office provided a hybrid policy and legal
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    conclusion for the disapproval of Drust’s private criminal complaints.
    Because both of Drust’s issues on appeal relate to the standard of review the
    trial court employed, we review them together.
    “Where the District Attorney concludes, based on investigation, that a
    conviction is doubtful or impossible, discretion can and should be exercised
    to refuse approval.” Commonwealth v. Metzker, 
    658 A.2d 800
    , 801. (Pa.
    Super. 1995). Even if we assume that the complaints in this case set forth
    prima facie cases to support the charges sought, this Court has held that the
    determination   that    a    case   “lacks   prosecutorial   merit”   is    a   policy
    determination subject to a discretionary standard of review.               See In re
    Private Criminal Complaints of Rafferty, 
    969 A.2d 578
    , 582 (Pa. Super.
    2009); In re Private Complaint of Adams, 
    764 A.2d 577
    , 581 (Pa. Super.
    2000);   
    Metzker, 658 A.2d at 800
    .     Traditionally,   prosecutors      in
    Pennsylvania have been given great latitude in deciding which cases to
    prosecute and in rejecting those which do not warrant prosecution.
    
    Metzker, 658 A.2d at 801
    . “The power to prosecute is enormous, bringing
    as it does the resources of the Commonwealth to bear on the accused.
    Thus, we expect those entrusted with this authority to exercise it wisely, and
    not proceed where they conclude that a conviction cannot be attained.” 
    Id. The trial
    court did not abuse its discretion or misinterpret the district
    attorney’s decisions as being, in part, policy based. Specifically, the district
    attorney’s July 7, 2014, disapproval letter stated, “[b]ased upon the totality
    of the investigation of the incident in question, and the controlling legal
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    principles, the charges proposed on these Private Criminal Complaints are
    disapproved. The Commonwealth believes that the charges filed against Mr.
    Nicholas Drust were appropriately filed and will be pursued.” Drust contends
    that the district attorney’s decision was solely a legal conclusion.              The
    district attorney provided the following explanation for the denial:
    Instantly, the Pennsylvania State Police investigated an incident
    including four people.        Pertinent to this appeal the
    Commonwealth charged [Drust] and not the two complaining
    witnesses. Upon [Drust’s] filing of criminal complaints, the
    matter was reviewed again and the private criminal complaints
    were disapproved. Implicit in the decision was a policy decision
    that charges against the two complaining witnesses were
    unwarranted.
    Brief for the Commonwealth at 6.
    While   the    district   attorney   never     explicitly   cited   the   policy
    determination, the trial court interpreted the district attorney’s reasoning as
    one of policy.      Specifically, the trial court determined that the district
    attorney provided sufficient reasoning that a case lacking prosecutorial merit
    is an implicit policy determination.       While we urge the district attorney’s
    office to use language that is more precise as to their policy determinations
    in future disapproval letters of private criminal complaints, we nonetheless
    conclude that the trial court’s interpretation was reasonable, and conclude
    that the trial court did not abuse its discretion.
    Contrary to the arguments of Drust, the district attorney’s disapproval
    in this case is not subject to de novo review because, as we determined
    above, it was not based on a purely legal assessment of the complaint.
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    Instead, it was in part a policy-based decision. Thus, we must evaluate it to
    determine whether it was based upon fraud, bad faith or unconstitutionality.
    Drust   makes     no   arguments   sounding   in   bad   faith,   fraud   or
    unconstitutionality.     Further, the trial court does not note an allegation of
    such conduct. Finally, our independent review reveals none. In this case,
    the district attorney deemed the matter lacking in prosecutorial merit due to
    divergent and conflicting versions of events by those present at the incident.
    Such an assessment is not prohibited, as there is no evidence that it was
    motivated by bad faith or fraud and no proof that it is unconstitutional in its
    basis.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/12/2015
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