In Re: Miscellaneous Orders Appeal of: Drust, N.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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