Com. v. Saunders, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTONIO SAUNDERS :
:
Appellant : No. 2122 EDA 2019
Appeal from the Order Entered July 15, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-MD-0000850-2019,
CP-48-MD-0000850-2019
BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED JULY 24, 2020
Appellant Antonio Saunders appeals from the order disapproving of his
two private criminal complaints. On appeal, Appellant contends that the trial
court erred by concluding that the District Attorney did not abuse his discretion
in disapproving his private criminal complaints. We affirm and grant
Appellant’s counsel’s petition to withdraw.
Background for Appellant’s Related Criminal Case
We begin with the facts underlying Appellant’s related criminal case
because they are necessary to understand the context for Appellant’s private
criminal complaints.1
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1Appellant’s related criminal case is currently on appeal before this Court.
See Commonwealth v. Saunders, 684 EDA 2020 (Pa. Super. 2020).
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On January 28, 2018, Detective Michael M. Munch of the Colonial
Regional Police Department executed an Affidavit of Probable
Cause that stated as follows:
On 1/25/19, [Appellant] entered the BB&T Bank at [Route
248 in Lower Nazareth, Pennsylvania]. [Appellant] applied
for a signature loan in the amount of $30,000 using the
identifying information of Allen Baynes. [Appellant]
displayed a Pennsylvania ID card and a social security card
in the name of Allen Baynes. [Appellant] also provided the
bank with a federal income tax return form in the name of
Allen Baynes. [Appellant] also signed the loan application
form in the name of Allen Baynes.
Officer Nigro,[2] this department, contacted Allen Baynes
who resides in Alabama. Baynes stated he has not been to
Pennsylvania and did not apply for a loan, nor did he allow
anyone else to apply for a loan in his name.
On 1/28/19, [Appellant] returned to the bank in order to
receive his money. At that time, your affiant placed
[Appellant] under arrest. [Appellant] was in possession of
a Pennsylvania identification card, social security card, and
two bank cards, all bearing the name Allen Baynes. A short
time later, [Appellant] identified himself as . . . residing in
New York. [Appellant] was in possession of a temporary NY
driver’s license in [Appellant’s] name . . . . On the back of
the driver’s license was a handwritten list of the identifying
information of Allen Baynes, including date of birth, email
address, and phone number.
Trial Ct. Op., 10/8/19, at 2 (citations omitted).
Appellant was arrested and charged with, among other crimes, forgery,
identity theft, and attempted theft by deception. Id. at 8. He filed a motion
to suppress asserting “that the police had (1) failed to provide him with a
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2 The record did not state Officer Nigro’s first name.
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receipt and inventory of property taken from him at the time of his arrest; and
(2) failed to prove the existence of an unbroken chain of custody of the
property” in violation of Pennsylvania Rules of Criminal Procedure 208, 209,
and 210. Id. at 6. The trial court summarized the testimony at the
suppression hearing as follows:
Detective Munch testified that an employee of the Lower Nazareth
BB&T Bank (“BB&T Bank”) had provided Officer Nigro with copies
of (1) the loan application that [Appellant] had signed on January
25, 2019 in the name of Allen Baynes, a National Football League
referee who lived in Alabama and had no connection to
[Appellant]; (2) a Client Information Change Request Form that
[Appellant] had signed on January 25, 2019 in the name of Allen
Baynes, which listed certain demographic information of Allen
Baynes; and (3) a 2017 federal income tax return in the name of
Allen Baynes that [Appellant] had presented to the bank on
January 25, 2019 to verify his income in support the loan
application. The Commonwealth’s attorney, James Augustine,
Esq., told the [c]ourt that he had provided these documents to
[Appellant] in discovery. [Appellant’s] attorney, Matthew
Deschler, Esq., acknowledged that he had received the referenced
documents in discovery and that he had given the documents to
[Appellant].
Attorney Augustine told the [c]ourt that, in addition, he had
provided [Appellant] with (1) the Criminal Complaint; (2) police
reports; (3) the name of the BB&T Bank employee [Jaime Adams]
who had positively identified [Appellant] to the police; and (4) a
still photograph taken by a BB&T Bank camera showing
[Appellant] inside the BB&T Bank on January 25, 2019, the day
on which Detective Munch said [Appellant] had applied for the
loan, and wearing the same coat [Appellant] had been wearing at
the time of his subsequent arrest on January 28, 2019. Attorney
Augustine represented to the [c]ourt that the victim, Allen Baynes,
would be available to testify at trial.
Detective Munch testified that on January 28, 2019, when he went
to BB&T Bank to arrest [Appellant], the bank loan officer who had
received the loan application in the name of Allen Baynes on
January 25, 2019 positively identified [Appellant] as the man who
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had submitted the loan application. Detective Munch said that
when he arrested [Appellant], [Appellant] had in his physical
possession a Social Security card and a New York interim driver’s
license, both in the name of [Appellant]. Detective Munch
produced a photocopy of [Appellant’s] Social Security card.
Attorney Augustine stated, and Detective Munch confirmed, that
a BB&T Bank employee would testify that on January 25, 2019
when [Appellant] applied for the loan, [Appellant] presented the
bank with a Pennsylvania driver’s license bearing his own picture
and the name of Allen Baynes. Detective Munch testified that
when he arrested [Appellant], [Appellant] did not have the actual
Pennsylvania driver’s license in his possession. However,
Detective Munch said he knew that the Pennsylvania driver’s
license existed, because he had searched a database maintained
by the Pennsylvania Department of Transportation (“PennDOT”)
and had discovered a transaction record indicating that, a few
days prior to [Appellant’s] arrest, [Appellant] had applied for and
obtained a Pennsylvania driver’s license bearing his own picture
and the name of Allen Baynes.
Attorney Augustine acknowledged that the Commonwealth did not
have in the courtroom that day the two bank cards bearing the
name Allen Baynes that were alleged to have been in [Appellant’]s
possession at the time of his arrest. However, Attorney Augustine
noted that [Appellant’s] wallet had been taken from him at the
time of his arrest, that the wallet was being stored at the Colonial
Regional Police Department, and that the wallet might contain
both the Pennsylvania driver’s license and the two bank cards.
The [c]ourt advised Attorney Augustine that it would give him
seven days to check for additional evidence, and if the
Commonwealth located any additional items, the [c]ourt would
hold an additional hearing to make a record of that production.
Id. at 3-5 (citations omitted).3
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3The trial court denied Appellant’s motion to suppress for two reasons. Trial
Ct. Op. at 7-8. The trial court first reasoned that Appellant’s motion was
untimely, and second, Rules 208 through 210 apply only to property seized
by a search warrant, whereas Appellant’s property was seized “pursuant to a
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Background for Instant Private Criminal Complaints
Appellant, acting pro se, filed his first private criminal complaint on
March 5, 2019, naming Detective Munch, Officer Nigro, and Mr. Adams as
defendants. Private Crim. Compl., 3/5/19, at 3. The complaint stated as
follows:
On or about 1/28/2019, BB and T Banker called the complainant
stating false misstatements after being coached by Defendants
Officers Munch and Nigro; that a $30,000 loan had been approved
in the name of Allen Baynes after Officer Nigro had contacted the
real Allen Baynes, in Alabama, who had not been to PA, and did
not apply for a loan, nor did he allow anyone else to apply for a
loan in his name. Still Jaime Adams perpetrated a fraud by
misrepresentation of the facts to solicite [sic] the complainant by
inducing him and encouring [sic] him that the loan was approved,
that she was leaving early today and wanted the complainant to
come into BB and T Bank to sign the closing document so that the
complainant can get the $30,000 loan with the criminal intent to
entrap the complainant. After multiple calls from the Defendant
Banker from BB and T Bank solicitating [Appellant] to come into
the bank[, Appellant] arrived on 1/28/2019 at approx. 1440 hours
to be arrested by the Defendant accomplices Officer Michael
Munch and Officer Nigro. Allen Baynes never consented to any of
these Defendant’s [sic] crimes . . . .
Id. at 2-3 (some alterations).
On March 12, 2019, District Attorney John Morganelli disapproved
Appellant’s first private criminal complaint, briefly reasoning as follows:
“prosecutorial discretion not to prosecute.” Id. at 2. On May 2, 2019,
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warrantless arrest.” Id. After a jury trial, Appellant was convicted on June 5,
2019, of the above-mentioned crimes. Id. at 8.
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Appellant filed a pro se petition for review in the trial court, which requested
an unbiased “judge to look into this matter.”4 Pet. for Review, 5/2/19, at 1.
On July 2, 2019, Appellant, pro se, filed his second private criminal
complaint again naming Detective Munch as a defendant. Private Crim.
Compl., 7/2/19, at 1.5 The complaint asserted the following:
. . . On 1/28/2019, Michael J. Munch, Affidavit of Probable Cause
did in fact falsely accused [sic] that on 1/25/2019, [Appellant]
entered the BB&T Bank and applied for a signature loan in the
amount of $30,000.00, using the identifying information of Allen
Baynes. That [Appellant] displayed a Pa. ID card and a social
security card in the name of Allen Baynes. [Appellant] also signed
the loan application. That on 1/28/2019, after Michael Munch[]
placed [Appellant] under arrest, [Appellant] was in possession of
a Pa. ID card, social security card and two bank cards, all bearing
the name Allen Baynes. [Appellant] now has evidence that no
such loan was ever applied for nor signed for while at BB&T Bank
and sworn statements and the Commonwealth that no such Pa.
ID nor social security card nor Bank card was found.
Id. at 2. Appellant accused Detective Munch of violating the Savings
Association Code of 1967, and false statements in a deputy’s affidavit. See
id. (citing 7 P.S. § 6020, 16 P.S. § 1207-A, and 16 P.S. § 4207).
On July 2, 2019, Attorney Morganelli disapproved Appellant’s second
private criminal complaint again reasoning “prosecutorial discretion not to
prosecute.” Id. On July 8, 2019, Appellant filed a pro se petition for review
in the trial court, which essentially reiterated the factual assertions in his
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4As quoted below, Pennsylvania Rule of Criminal Procedure 506 does not state
a time limitation for filing a petition for review. See Pa.R.Crim.P. 506.
5 The private criminal complaint was dated June 27, 2019.
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second private criminal complaint. See Mot. to Review the Decision of the
District Attorney Denying the Private Crim. Compl., 7/8/19, at 1-2. Appellant
also contended he was “erroneously convicted due to insufficient evidence”
and was “entitled [to have] the court to review and consolidate the perjury
charges with the other charges” under review. Id. at 2.
On July 15, 2019, the trial court denied both of Appellant’s petitions for
review, but docketed the order at the wrong docket number, specifically CP-
48-CR-538-2019, which was Appellant’s criminal case. Order, 7/15/19
(attached as Ex. A to Appellant’s Brief). At the above-captioned docket
number, Appellant filed a timely pro se notice of appeal on July 18, 2019, and
a timely court-ordered Pa.R.A.P. 1925(b) statement.
The docket states that on October 29, 2019, the trial court appointed
Robert Eyer, Esq., as appellate counsel for the above-captioned appeals.
Order, 10/29/19. Attorney Eyer filed an appellate brief with this Court and
subsequently filed an application to withdraw as counsel on May 8, 2020,
which we resolve below.
Appellant raises the following issue on appeal: “Whether the trial court
erred in finding that the District Attorney did not abuse his discretion when
disapproving the private criminal complaints.” Appellant’s Brief at 4.
In support, Appellant summarizes the applicable law, as well as the facts
and procedural posture. Id. at 11-19. He argues that the record established
that Detective Munch made false statements that justified the private criminal
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complaints. Id. at 19. Specifically, Appellant contends Detective Munch
falsely averred that Appellant had signed a written application for a loan in the
victim’s name and that when arrested, Appellant possessed identification
documents for another victim. Id. at 19-20. Appellant asserts Detective
Munch contradicted himself at Appellant’s criminal pretrial hearing and trial
and the Commonwealth failed to produce the written loan application and the
identification documents. Id. at 20. Further, Appellant argues that the
Commonwealth produced both of the aforementioned items at a pretrial
hearing without “any chain of custody whatsoever.” Id. Appellant concludes
that the trial court erred by holding that the District Attorney did not abuse
his discretion. Id.
The Commonwealth counters that Appellant failed to establish that the
District Attorney abused his discretion when denying Appellant’s private
criminal complaints. Commonwealth’s Brief at 6. The Commonwealth
summarizes the applicable law, id. at 6-9, and frames Appellant’s argument
as “the trial court abused its discretion based on evidentiary reasons,
essentially arguing that his private criminal complaint set out a prima facie
case on which to bring charges.” Id. at 9-10. In the Commonwealth’s view,
“whether a private criminal complaint establishes a prima facie case” is one of
many factors that a District Attorney takes into consideration. Id. at 10. The
Commonwealth agrees with the trial court’s reasoning and summarizes it as
follows:
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Appellant has failed to prove that then-District Attorney Morganelli
abused his discretion in disapproving Appellant’s private criminal
complaint because he has produced no evidence that the decision
was made in bad faith or fraudulently, nor has he demonstrated
that the decision was discriminatory, arbitrary, or pre-textual.
Rather, the private criminal complaints were denied because they
were made in retaliation for the filing of criminal charges against
Appellant and presented issues that were more appropriately
raised during pre-trial litigation or through cross-examination.
Id. at 11.
The trial court quoted the District Attorney’s reasons for disapproving
Appellant’s private criminal complaints: “prosecutorial discretion not to
prosecute.”6 Trial Ct. Op. at 29. The trial court concluded, “[h]ere, the District
Attorney stated his reason for disapproval of [Appellant’s] Private Criminal
Complaints, and [Appellant] has failed to assert any basis for his claim that
the stated reason was inadequate.” Id. at 30.
We state the following with respect to the standard of review:
It is settled that following the receipt of a petition to review the
Commonwealth’s decision to disapprove a private criminal
complaint, the court must determine whether the
Commonwealth’s rationale for disapproving the private criminal
complaint is for purely legal reasons or if it is based solely or in
part on policy considerations. When the Commonwealth’s
disapproval is based wholly on legal considerations, the court
employs a de novo review. Where the decision includes or is
entirely based on policy considerations, the trial court reviews the
Commonwealth’s determination under an abuse of discretion
standard.
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6 The trial court’s Rule 1925(b) opinion addressed other arguments that
Appellant did not raise on appeal. Therefore, we do not summarize those
portions of the trial court’s Rule 1925(b) opinion.
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Braman v. Corbett, 19 A.3d 1151, 1157 (Pa. Super. 2011) (citations
omitted). This Court similarly reviews a trial court’s decision addressing the
Commonwealth’s disapproval of a private criminal complaint on policy
considerations for an abuse of discretion. In re Wilson, 879 A.2d 199, 215
(Pa. Super. 2005) (en banc) (stating, “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.”). “This deferential standard
recognizes the limitations on judicial power to interfere with the district
attorney’s discretion in these kinds of decisions.” Id.
Pennsylvania Rule of Criminal Procedure 506 states as follows:
(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.
The private criminal complainant has the burden to prove the
district attorney abused his discretion, and that burden is a heavy
one. In the Rule 506 petition for review, the private criminal
complainant must demonstrate the district attorney’s decision
amounted to bad faith, fraud or unconstitutionality. The
complainant must do more than merely assert the district
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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.
In Wilson, the complainant’s petition for review asserted that “his
complaint, along with his medical records and affidavit, should be approved
because he set forth a prima facie case . . . .” Id. at 216. The complainant
concluded that because he presented a prima facie case, the District
Attorney’s disapproval was “suspect.” Id. at 217. Further, the complainant
questioned the “District Attorney’s decision, as a matter of policy, to refuse to
commit the resources of his office to a case where the likelihood of a conviction
was minimal.” Id. at 210. The trial court disagreed, holding the District
Attorney did not abuse its discretion because the District Attorney presented
“two valid policy reasons for disapproving [the complainant’s] private
complaint,” and because there was “no evidence of bad faith, fraud or
unconstitutionality.” Id. at 218. The Wilson Court similarly held that the
trial court did “not demonstrate an abuse of discretion,” reasoning that the
complainant’s “allegation of bad faith in his petition [for review] is based only
on suspicion, and suggests partiality or favoritism without factual support.”
Id.
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Instantly, Appellant’s petitions for review requested an unbiased judge
to review his first private criminal complaint and argues that he is entitled to
have the trial court review his second private criminal complaint. See Pet. for
Review, 5/2/19, at 1; Mot. to Review the Decision of the District Attorney
Denying the Private Crim. Compl., 7/8/19, at 1-2. Appellant’s petitions for
review, similar to the complainant’s petition for review in Wilson, do not
explain how the District Attorney’s decision “was patently discriminatory,
arbitrary or pretextual.” See Wilson, 879 A.2d at 215. As in Wilson,
Appellant’s petitions for review simply do not establish that the District
Attorney acted in bad faith, fraudulently, or unconstitutionally. See id.
Appellant’s appellate argument similarly rehashes his contention that he
established a prima facie case, but does not explain how the District Attorney’s
decision was discriminatory, arbitrary, or pretextual. See id. Because
Appellant failed to establish the trial court abused its discretion, we affirm the
order denying Appellant’s petitions for review. See id.
Turning to Attorney Eyer’s petition to withdraw as appointed counsel,
we state the following as background. Pennsylvania Rule of Criminal
Procedure 122 provides for the appointment of counsel as follows:
(A) Counsel shall be appointed:
(1) in all summary cases, for all defendants who are without
financial resources or who are otherwise unable to employ
counsel when there is a likelihood that imprisonment will be
imposed;
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(2) in all court cases, prior to the preliminary hearing to all
defendants who are without financial resources or who are
otherwise unable to employ counsel;
(3) in all cases, by the court, on its own motion, when the
interests of justice require it.
Pa.R.Crim.P. 122; see also 16 P.S. § 9960.7 (stating, “For cause, the court
of common pleas may, on its own motion or upon the application of the public
defender, the defendant, or person charged with being a juvenile delinquent,
appoint an attorney other than the public defender to represent the person
charged at any stage of the proceedings.” (emphasis added)).
Generally, the
[S]ixth [A]mendment of the United States Constitution
guarantees the accused in all criminal prosecutions the assistance
of counsel for his defense. The triggering event for [S]ixth
[A]mendment rights to attach is the commencement of adversary
judicial proceedings against the defendant. The [S]ixth
[A]mendment does not afford such assistance of counsel to a
plaintiff in a civil action, such as the [plaintiff’s action at issue],
where no loss of liberty is involved.
While it is true that in some instances counsel will be appointed
for a plaintiff in a civil action, generally it is a situation involving
broad policy considerations implicating a state interest of a civil
rights nature such as a fair housing violation, sexual or other job
discrimination or where liberty interests are implicated. The state
has reasonably adjusted to these necessities by providing legal
agencies to fulfill due process requirements, which will assist
indigent persons who are wronged, or the courts have called upon
pro bono services of the bar associations absent public resources.
Each class of case and in some respects each case is scrutinized
to determine if the right to counsel is required under the due
process provisions of federal and state constitutions. The
requirements are more clearly stated and more generally
applicable when a party is a defendant in certain civil actions,
rather than a plaintiff. It is also clear that classification of a case
as civil as opposed to criminal will not be determinative, but
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rather, whether the action will be perceived as ultimately
depriving a person of a higher liberty interests.
May v. Sharon, 546 A.2d 1256, 1258 (Pa. Super. 1988) (footnote, citations,
and quotation marks omitted); see generally Pa.R.Crim.P. 122; 16 P.S. §
9960.7. There is a right to counsel for persons subject to, among other things,
(1) incarceration or probation for summary offenses, (2) commitment under
the Mental Health Procedures Act, (3) contempt, or (4) paternity actions.7 We
have not identified any legal authority addressing whether a party who filed a
private criminal complaint, i.e., the accuser and not the accused, is
constitutionally entitled to appointed counsel. Indeed, because such a party
is the accuser, that party would not be subject to imprisonment or other
deprivations of higher liberty interests based on the claims in a private criminal
complaint.8 See May, 546 A.2d at 1258.
Here, Appellant filed two private criminal complaints. Appellant is the
accuser and not an indigent defendant. As the accuser, he is not subject to
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7See Pa.R.Crim.P. 122; 50 P.S. § 7303; Commonwealth v. Diaz, 191 A.3d
850, 862-63 (Pa. Super. 2018); Rodriguez v. Rodriguez, 600 A.2d 589,
590-91 (Pa. Super. 1991).
8 It follows that the requirements of Anders/Santiago do not apply in
considering whether to grant appointed counsel’s petition to withdraw from
representing the accuser. See Anders v. California, 386 U.S. 738 (1967);
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). In Santiago, our
Supreme Court summarized the constitutional underpinnings for Anders,
including “that under the Sixth Amendment, the indigent have the same right
to effective representation by an active advocate as a defendant who can
afford to retain counsel . . . .” Santiago, 978 A.2d at 355 (emphasis added)
(summarizing McCoy v. Wisconsin, 486 U.S. 429 (1988)).
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the deprivation of “higher liberty interests” as a consequence of the claims in
his complaints. See May, 546 A.2d at 1258. Because Appellant is not subject
to the deprivation of higher liberty interests as discussed in May, he is not
constitutionally entitled to appointed counsel. See id.; see also 16 P.S. §
9960.7 (noting trial court may appoint counsel to represent the “person
charged,” i.e., not the accuser).
Attorney Eyer’s petition to withdraw his representation of Appellant,
which he filed after the parties’ appellate briefs were filed, contended that
Appellant alleged Attorney Eyer is incompetent, has a conflict of interest, and
violated the Rules of Professional Conduct. Appl. to Withdraw as Counsel,
5/8/20, at 4. Attorney Eyer averred that there is a breakdown in the attorney-
client relationship and requests permission to withdraw or a remand to the
trial court for any hearing this Court deems necessary. Id. at 4-5. Because
we have resolved Appellant’s appeal on its merits, “we see no reason not to
grant the motion for permission to withdraw.” Commonwealth v.
Goldsmith, 619 A.2d 311, 316 (Pa. Super. 1993) (granting the defendant’s
counsel’s petition to withdraw because of a breakdown in the attorney-client
relationship and because the Court resolved the “issues on appeal on their
merits”). For these reasons, we find the trial court did not abuse its discretion,
and we affirm the order below. See Braman, 19 A.3d at 1157; In re Wilson,
879 A.2d at 215.
Order affirmed. Counsel’s petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/20
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