In Re: Private Comp. Filed by L. Ajaj Apl of Com.

[J-9-2022] [MO: Brobson, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: PRIVATE COMPLAINT FILED BY : No. 55 MAP 2021
LUAY AJAJ :
: Appeal from the Order of the
: Superior Court at No. 3421 EDA
APPEAL OF: COMMONWEALTH OF : 2019 dated February 25, 2021,
PENNSYLVANIA : Reconsideration Denied May 3,
: 2021, Affirming the Order of the
: Montgomery County Court of
: Common Pleas, Criminal Division, at
: No. CP-46-MD-0001539-2019 dated
: October 31, 2019 and Remanding.
:
: ARGUED: March 9, 2022
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: January 19, 2023
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 24 (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, 708 A.2d
81, 87 (Pa. 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. 1 Titled “Approval of Criminal
Complaints,” 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.
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). 2 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
1 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.
2 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,
565 A.2d 764, 769 (Pa. 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).
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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.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, 669 A.2d 984, 994 (Pa. Super. 1995) (en
banc) (Saylor, J., dissenting) (emphasis added), aff’d, 708 A.2d 81 (Pa. 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, 192 A.3d 44, 53
(Pa. 2018); accord Commonwealth v. Stipetich, 652 A.2d 1294, 1295 (Pa. 1995) (“the
ultimate discretion to file criminal charges lies in the district attorney”); United States v.
Nixon, 418 U.S. 683, 693 (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
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principle of separation of powers.” Commonwealth v. Buonopane, 599 A.2d 681, 684
(Pa. Super. 1991). 3
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, 821 A.2d 1238, 1244 (Pa. 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,
3 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”).
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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, 228 A.2d 382, 384 (Pa. 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.
[J-9-2022] [MO: Brobson, J.] - 5
16 P.S. §7710. 4
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
4 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.
[J-9-2022] [MO: Brobson, J.] - 6
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,[5] 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
[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. 6 Equally illuminating is how the Court described the
5 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.
6 In Commonwealth v. Mayfield, 247 A.3d 1002 (Pa. 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,
(continued…)
[J-9-2022] [MO: Brobson, J.] - 7
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.
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, 961 A.2d 842, 847 (Pa. 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
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, 487 A.2d 814, 816 (Pa.
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.
[J-9-2022] [MO: Brobson, J.] - 8
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). 7
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.
7 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”).
[J-9-2022] [MO: Brobson, J.] - 9