Bomar, A. v. Fox, M.

J-S03001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ARTHUR BOMAR IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MARJORIE J. FOX, DISTRICT ATTORNEY,
GREENE COUNTY
Appellee No. 902 WDA 2015
Appeal from the Order Dated May 11, 2015
In the Court of Common Pleas of Greene County
Criminal Division at No(s): 34 Misc. 2014
BEFORE: OLSON, SOLANO and STRASSBURGER*, JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2017
Appellant, Arthur Bomar, appeals from the order entered on May 11,
2015 in the Criminal Division of the Court of Common Pleas of Greene
County that affirmed the district attorney’s denial of Appellant’s private
criminal complaint. We affirm.
Appellant is currently incarcerated as a capital offender at the State
Correctional Institute in Greene County (SCI-Greene). In March 2016,
Appellant filed a private criminal complaint with the office of the district
attorney of Greene County. The complaint alleged that on March 11, 2015,
Appellant submitted a telephone slip to prison officials allowing him to
telephone his attorney. As the pre-arranged time for the call approached,
Appellant asked a corrections officer to allow him to use the telephone.
Appellant, who is an African-American and practicing Muslim, alleged that
* Retired Senior Judge assigned to the Superior Court.
J-S03001-17
the corrections officer, a Caucasian, refused to allow Appellant to make the
call and directed racial epithets toward Appellant.
Based upon this incident, Appellant asked the district attorney’s office
to charge the corrections officer with various offenses, including official
oppression (18 Pa.C.S.A. § 5301), ethnic intimidation (18 Pa.C.S.A. § 2710),
and harassment (18 Pa.C.S.a. § 2709). On April 1, 2015, the district
attorney’s office forwarded a letter to Appellant advising that, in its
discretion, the office had disapproved Appellant’s complaint. The letter also
suggested that Appellant contact the Department of Corrections’ Office of
Special Investigations and Intelligence, which was established to investigate
inmate complaints, regarding his grievance.1 On or about April 17, 2015,
Appellant filed a petition asking the trial court to review the district
attorney’s disapproval of the complaint pursuant to Pa.R.Crim.P. 506.
Finding no prosecutorial abuse of discretion, the trial court affirmed the
district attorney’s action by order dated May 11, 2015. Appellant lodged this
appeal from that order.
Appellant challenges an order affirming the district attorney’s denial of
a private criminal complaint. In such cases, we determine whether the trial
court abused its discretion or committed an error of law. In re: Private
____________________________________________
1
In his appellate brief, Appellant alleges that he filed a complaint with the
Office of Special Investigations and Intelligence “immediately after the
incident.” Appellant’s Brief at 5.
-2-
J-S03001-17
Complaint of Owens, 810 A.2d 172, 175 (Pa. Super. 2002), appeal denied,
821 A.2d 587 (Pa. 2003). The trial court's obligations in addressing a
district attorney's disapproval of a private criminal complaint are as follows.
Where the district attorney's denial is based on a legal
evaluation of the evidence, the trial court undertakes a de novo
review of the matter. Where the district attorney's disapproval
is based on policy considerations, the trial court accords
deference to the decision and will not interfere with it in the
absence of bad faith, fraud or unconstitutionality. In the event
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 appropriate standard to be
employed. On appeal, this [C]ourt is limited to determining
whether the trial court abused its discretion.
In re: Private Complaint of Owens, 810 A.2d at 175-176 (internal
citations omitted).
Appellant raises three issues in support of his claim. In his first issue,
Appellant asserts that the trial court erred in failing to undertake de novo
review since Appellant’s rendition of the evidence was legally sufficient to
establish prima facie causes of action. See Appellant’s Brief at 8. We
disagree with Appellant’s position. The April 1, 2015 letter from the
prosecutor neither discussed nor assessed the evidence set forth in
Appellant’s complaint. Instead, the letter referred Appellant to the Office of
Special Investigations and Intelligence, if he sought further investigation.
This suggestion is substantially inconsistent with Appellant’s assertion that
the district attorney’s office concluded that Appellant’s evidence was
insufficient. Moreover, the trial court affirmed the prosecutor’s disapproval
-3-
J-S03001-17
of Appellant’s complaint after finding that “[t]he Commonwealth did not
abuse its discretion[.]” Trial Court Opinion, 5/11/15, at 2. This finding
strongly suggests that the trial court believed that the district attorney
offered a policy-based determination that it would not be in the best interest
of the Commonwealth to prosecute the alleged offenses. Since de novo
review is appropriate only where the trial court determines that the
prosecutor’s decision is solely the product of a legal conclusion, there is no
merit to Appellant’s first issue. See Commonwealth v. Cooper, 710 A.2d
76, 80 (Pa. Super. 1998).
In his second issue, Appellant asserts that the trial court erred in
denying independent review since the prosecutor’s letter failed to articulate
a clear statement of the policy upon which the disapproval decision was
based. See Appellant’s Brief at 10. Again, we disagree. Here, the district
attorney exercised her discretion in declining to pursue charges against the
corrections officer. Instead, without passing upon the substantive merit of
Appellant’s accusations, the prosecutor referred Appellant to the Office of
Special Investigations and Intelligence, an agency within the Department of
Corrections established to investigate inmate complaints. The underlying
policy premise of the district attorney’s actions is that the Office of Special
Investigations and Intelligence may be better situated than the county
district attorney’s office to investigate and pursue complaints from inmates
-4-
J-S03001-17
concerning offenses committed within our state correctional facilities. 2 This
is a valid policy reason for the district attorney's decision. See Cooper, 710
A.2d at 81 (availability of adequate civil remedy represents valid policy
reason for rejecting private criminal complaint). There is no evidence of bad
faith, fraud, or unconstitutionality. Accordingly, the trial court did not abuse
its discretion in affirming the denial of prosecution.
Appellant’s final issue alleges that the office of the district attorney
harbored an adverse bias against Appellant and his claims because of his
race and his status as an inmate. Appellant, however, fails to develop these
claims with appropriate citation to the record or pertinent authorities. See
Pa.R.A.P. 2119(a) (requiring appellant to support his or her argument with
pertinent analysis, including citation to and discussion of relevant authority
and facts of record). Hence, we constrained to find that Appellant has
waived appellate review of these issues.3 See Pa.R.A.P. 2101 (allowing
quashal or dismissal where defects in brief are substantial).
Order affirmed.
____________________________________________
2
In this connection, we note that Appellant’s criminal complaint alleged that
the corrections officer’s conduct was in violation of, among other things, the
Department of Corrections’ Code of Ethics and applicable sections of
departmental regulations. See Appellant’s Criminal Complaint, 3/16/15.
3
For similar reasons, we find Appellant has waived review of the due
process claim he raises in his reply brief.
-5-
J-S03001-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
-6-