Commonwealth v. Muroski

McEWEN, Judge:

We are here called upon to determine whether a private complainant has standing to appeal from a trial court order sustaining the disapproval¹ by the district attorney of a private criminal complaint and, if so, whether, in the instant case, the trial court abused its discretion or committed an error of law by concluding that the district attorney properly exercised his discretion in disapproving the private criminal complaint filed by appellant.

Appellant, James Page, an inmate at the Huntingdon State Correctional Institution, filed a private criminal complaint against Chester B. Muroski on January 7, 1983, alleging that Mr. Muroski had, fifteen months earlier, on August 24, 1981, at the Camp Hill State Correctional Institution, committed the crimes of criminal conspiracy, criminal solicitation, threats and other improper influence in official and political matters, obstructing administration of law or other governmental function and official oppression. The private complaint was disapproved five months later by the Cumberland County District Attorney’s Office on June 7, 1983, because the complaint did not set forth any probable cause. Appellant then filed his private complaint with the Court of Common Pleas of Cumberland County pursuant to Pa.R.Crim.P. 133(B)(3)(ii). The trial court reviewed the private complaint and affidavit, concluded that the complaint failed to state any probable cause, and likewise disapproved of the filing of the complaint, thus sustaining the decision of the district attorney. We conclude that appellant does have standing to bring this appeal and that the trial court properly concluded that the district attorney did not abuse his discretion.

The Commonwealth asserts that appellant has no standing to bring this appeal and relies upon Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982), to support its assertion. Malloy is, however, neither controlling nor helpful to the Commonwealth since it presented a fundamentally different situation. The district attorney in Malloy approved a private criminal complaint and, after a preliminary hearing, the district justice concluded that the district attorney had established a prima facie case. Nonetheless, the trial court in Malloy, after it had conducted a study of the transcript of the testimony of the preliminary hearing, in response to habeas corpus proceedings initiated by the defendants, determined that a prima facie case had not been established and directed that the charges be dismissed and the defendants discharged. When the district attorney did not appeal from the order dismissing the charges, the private complainants undertook appeal proceedings. The Superior Court ruled that a victim/complainant is not a party to the criminal proceedings and proceeded to quash the appeal. The Court in Malloy held that the district attorney, as the representative of the state, is the party plaintiff in a criminal prosecution, while the victim/complainant is merely a witness. The victim of an alleged crime, therefore, has no standing to appeal a judicial determination that a complaint must be dismissed by reason of a failure by the Commonwealth to establish a prima facie case.

Unlike Malloy, the question here is not whether a private complainant has standing to appeal after the district attorney has approved the complaint and a trial court has determined that no prima facie case has been established. Rather, the district attorney here did not approve the private criminal complaint and there has been no judicial determination regarding the insufficiency of the case against Mr. Muroski. Thus, Malloy is distinguishable from the matter which we presently consider.

We also distinguished Malloy in In re: Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984) and held that an individual— who, pursuant to Pa.R.Crim.P. 133(B)(3)(ii), files a complaint with the Common Pleas Court for the approval of that court — is a party to an action seeking an order directing the district attorney to initiate a prosecution and, thus, is a party with a right to appeal from an order of the trial court rejecting his criminal complaint. Id., 333 Pa.Superior Ct. at 599-601, 482 A.2d at 1035. We here repronounce that rule as we conclude that appellant was a party to the instant action and thus has standing to appeal the decision of the trial court that determined the district attorney had properly disapproved the private criminal complaint. See Pennsylvania Constitution Art. V, Sec. 9; 42 Pa.C.S. § 5105; Pa.R.A.P. 501. The motion of the Commonwealth to quash the appeal is, therefore, denied.

We must now determine whether the trial court abused its discretion or committed an error of law when it decided the prosecutor had not acted improperly in disapproving the private complaint of appellant. No one would dispute that the district attorney has broad discretion in deciding whether to charge a person with a criminal offense. “ ‘This discretionary power of the District Attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence of probable cause. For this reason, the courts have been wary of interfering with or attempting to supervise the district attorney in the exercise of his discretion in controlling criminal prosecutions.’ ” In re: Wood, supra, 333 Pa.Superior Ct. at 601-03, 482 A.2d at 1036; quoting Commonwealth v. Eisemann, 276 Pa.Super. 543, 546, 419 A.2d 591, 592 (1980). See U.S. v. Cox, 342 F.2d 167, 171 (5th Cir.1965), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700. See also A.B.A. Standards Relating to the Prosecution Function and the Defense Function § 3.4.

Our determination of whether the district attorney abused his discretion must necessarily commence with an examination of the private criminal complaint which, in this instance, is composed of two completed forms:

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The decision of the district attorney appears at the top of the first page with the note that the complaint is disapproved because there is “no probable cause”.

Pa.R.Crim.P. 132(6)(a), which sets forth the quite explicit prerequisite that a criminal complaint set forth such a summary of the facts that a defendant would be apprised of the nature of the offense charged, provides:

RULE 132. Contents of Complaint

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(6)(a) In a court case, [every complaint shall contain] a summary of the facts sufficient to advise the defendant of the nature of the offense charged, but neither the evidence nor the statute allegedly violated need be cited in the complaint, nor shall a citation of the statute allegedly violated, by itself, be a sufficient compliance with this subsection____

Pa.R.Crim.P. 132(6)(a).

The trial court, pursuant to Pa.R.Crim.P. 133(B)(3)(ii), reviewed the private complaint and affidavit of appellant and disapproved the complaint because it was insufficient as it failed to aver facts of criminal activity.

[C]areful consideration of the affidavit discloses that it is insufficient because it consists solely of generalities without specifics. The complaint likewise displays a complete failure to aver any facts supporting the alleged criminal activity.

We have reviewed the complaint and affidavit as we are required to do pursuant to Pa.R.Crim.P. 113(B)(3)(ii) [sic] and conclude that the district attorney’s disapproval of the complaint was warranted. We, therefore, likewise disapprove of the filing of this complaint.

Trial Court Opinion, p. 1-2.

We agree with the conclusion of the trial court that the complaint and supporting affidavit are fatally defective due to the absence of any factual averments concerning criminal activity by Mr. Muroski. It is incumbent upon a private complainant to provide the district attorney with sufficient facts to enable him to make an informed decision regarding whether to permit the commencement of criminal proceedings. While some investigation into the allegations of a properly drafted complaint may be necessary in order to enable the district attorney to properly exercise his discretion concerning the decision whether to approve the complaint, such investigation is not necessary where the allegations of criminal conduct contained in the complaint are unsupported by factual averments. Both the district attorney and the trial court have a responsibility to prevent the misuse of judicial and prosecutorial resources in pursuit of futile prosecutions. In re: Wood, supra, 333 Pa.Super. at 603-04, 482 A.2d at 1037. The facts to support the allegations of criminal activity, if there are any, are either known by the private complainant or are ascertainable by him. The trial court is not required by Pa.R.Crim.P. 133(B)(3)(ii) to grant a hearing on the matter to determine if there were facts, undisclosed by the appellant but known to him, to support the allegations.² In re: Wood, supra, 333 Pa.Superior Ct. at 601-03, 482 A.2d at 1036; Commonwealth v. Eisemann, supra, 276 Pa.Super. at 545 n. 4, 419 A.2d at 592 n. 4; Petition of Piscanio, 235 Pa.Super. 490, 495, 344 A.2d 658, 661 (1975).

Thus, we find that the ruling of the trial court was not an abuse of discretion and, thereby, of course, conclude that the district attorney did not abuse his discretion when he disapproved the private criminal complaint of appellant. We, therefore, affirm the order of the distinguished President Judge Dale F. Shughart.

Order affirmed.

SPAETH, President Judge, files a concurring and dissenting opinion. CIRILLO, J., files dissenting opinion. ROWLEY, J., joins CIRILLO, J., dissenting opinion. SPAETH, President Judge, participated in this decision before the expiration of his term on the Court.

1 . Pa.R.Crim.P. 133(B)(3)(ii) provided as follows:

Rule 133. Complaint: Police and Private Affiant

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(B) PRIVATE COMPLAINTS:

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(3) If the attorney for the Commonwealth

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(ii) disapproves the complaint, he shall state his reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval.

This Rule was rescinded effective January 2, 1985. The pertinent text of the now rescinded Pa.R.Crim.P. 133(B)(3)(ii) currently appears as Pa.R.Crim.P. 133(b)(3).

2 . The private complainant whose criminal complaint is disapproved by the district attorney and the Court of Common Pleas for failure to set forth sufficient facts is, of course, not precluded from filing a subsequent, amended criminal complaint which does allege sufficient facts. See e.g., Commonwealth v. Eisemann, 308 Pa.Super. 16, 453 A.2d 1045 (1982); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980).