In Re: Brown, P., Appeal of: Brown, P.

J-S28012-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: PRIVATE CRIMINAL : IN THE SUPERIOR COURT OF

COMPLAINT PETITION OF PAUL A. : PENNSYLVANIA

BROWN :

:

:

APPEAL OF: PAUL A. BROWN :

:

:

: No. 189 EDA 2021

Appeal from the Order Entered July 30, 2020

In the Court of Common Pleas of Monroe County Criminal Division at

No(s): CP-45-MD-0000275-2020

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED DECEMBER 09, 2021

Paul A. Brown appeals from the order that denied his petition for review

of a private criminal complaint pursuant to Pa.R.Crim.P. 506. We affirm.

The trial court offered the following factual summary of this case.

On May 4, 2020, [Appellant] filed private criminal complaint

#1682 with the Monroe County Office of the District Attorney

alleging defendant Diana Brown knowingly gave false information

to authorities . . . . [Appellant] asserts Ms. Brown made false

statements against him in connection with a divorce proceeding.1

Specifically, [Appellant] denotes four counts in his Complaint

against Ms. Brown: (1) [she] made an unsworn falsification in her

complaint in divorce; (2) [she] improperly filed an affidavit

relating to pending divorce proceedings; (3) [she] “knowingly and

intelligently committed perjury in order for the court to grant her

divorce;” and (4) [she] committed forgery by executing her

attorney’s signature without authorization.

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* Retired Senior Judge assigned to the Superior Court.

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1 Notably, [Appellant] file[d] his Private Criminal Complaint

against his ex-wife Diana Brown, who was the victim in a

criminal case where [Appellant] pleaded guilty to one count

each of attempted homicide and aggravated assault.

[Appellant] disfigured Ms. Brown’s hand, gashed the back of

her head, and severed her ring finger with a machete.

On May 11, 2020, the Office of the District Attorney issued

a disapproval of private criminal complaint #1682 (hereinafter

“notice of disapproval”). The notice of disapproval cited the

following reasons: “(1) Matter was not reported to police for

investigation; (2) The facts of the alleged offense are inadequately

described; (3) Criminal prosecution is not warranted based on the

alleged facts; (4) The statute of limitations has expired on the

alleged crime; and (5) It is not in the best interest of the

Commonwealth to pursue this matter.” [Appellant], an inmate at

SCI Smithfield, received the notice of disapproval and timely filed

a pro se Rule 506 Petition for review of private criminal complaint

with th[e trial] court on June 1, 2020.

Trial Court Opinion, 7/30/20, at 1-2 (cleaned up).

The trial court reviewed the private criminal complaint and the exhibits

attached thereto and issued an opinion and order denying Appellant’s petition

for review. Appellant filed a timely notice of appeal to this Court, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.1 After noting that

Appellant’s private criminal complaint was not included in the certified record,

this Court directed the trial court to supplement it to include all materials

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1 Appellant submitted the notice of appeal, which was dated August 27, 2020,

and was attached to a motion to proceed in forma pauperis, to prison

authorities for mailing no later than August 28, 2020, which is the date of the

mailing’s postmark. Accordingly, the notice of appeal was timely filed. See,

e.g., Commonwealth v. Betts, 240 A.3d 616, 620 n.4 (Pa.Super. 2020)

(explaining that, pursuant to the prisoner mailbox rule, “submissions from an

incarcerated litigant are deemed to be filed when deposited into the prison

mailing system, or handed over to prison officials for mailing”).

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which it reviewed in making its determination. Having obtained the

supplemental certified record from the trial court, this appeal is ripe for

resolution.

Appellant states the following questions for our review:

1. Whether the trial court erred when it denied [Appellant]’s

notice of appeal/petition for review without first ordering

[Appellant] to file brief where he could provide verified proof, legal

argument and proof of bad faith by the Assistant District Attorney,

thus depriving [Appellant] of his right to fairly raise his meritious

[sic] issues in the trial court.

2. Whether the trial court erred when it denied [Appellant]’s

notice of appeal/petition for review when the Assistant District

Attorney’s reasons for denial of private criminal complaint # 1682

was in part for (1) matter was not reported to the police, (2) the

statue of limitation has expired on the alleged crimes and (3) it is

not in the best interest of the Commonwealth to pursue this

matter, same reasons in part for his denial of private criminal

complaint # 1672 for the same accused, was plainly erroneous

and done in bad faith.

Appellant’s brief at iv.

We begin our consideration of Appellant’s questions with our standard

of review:2

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2 Appellant claims that he presents us with a due process question of law

subject to de novo, plenary review. See Appellant’s brief at iii. “We have

held that the provision in [Pa.R.Crim.P. 506] allowing an appeal of the district

attorney’s disapproval of such charges to the court constitutes sufficient

checks and balances upon the district attorney's actions to comply with

constitutional due process requirements.” In re Private Complaint of

Owens Against Coker, 810 A.2d 172, 177 (Pa.Super. 2002) (cleaned up).

Since Appellant does not complain that the Rule was not followed, due process

is not implicated.

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Appellate examination of a trial court’s review of the District

Attorney’s decision to disapprove a private criminal complaint

implicates the following:

When the district attorney disapproves a private criminal

complaint solely on the basis of legal conclusions, the trial court

undertakes de novo review of the matter. Thereafter, 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.

When the district attorney disapproves a private criminal

complaint on wholly policy considerations, or on a hybrid of legal

and policy considerations, the trial court’s standard of review of

the district attorney’s decision is abuse of discretion. This

deferential standard recognizes the limitations on judicial power

to interfere with the district attorney’s discretion in these kinds of

decisions.

In re Miles, 170 A.3d 530, 534–35 (Pa.Super. 2017) (cleaned up).

As detailed above, the district attorney supplied multiple reasons for its

disapproval, including both legal and policy considerations. See Trial Court

Opinion, 7/30/20, at 2 (quoting Notice and Record of Disapproval of Private

Criminal Complaint, 5/11/20). Accordingly, the following legal principles

govern our examination of Appellant’s issues:

[T]he appellate court will review the trial court’s decision for an

abuse of discretion, in keeping with the settled principles of

appellate review of discretionary matters. The district attorney’s

decision not to prosecute a criminal complaint for reasons

including policy matters carries a presumption of good faith and

soundness. The complainant must create a record that

demonstrates the contrary. Thus, the appropriate scope of review

in policy-declination cases is limited to whether the trial court

misapprehended or misinterpreted the district attorney’s decision

and/or, without a legitimate basis in the record, substituted its

judgment for that of the district attorney. We will not disturb the

trial court’s decision unless the record contains no reasonable

grounds for the court’s decision, or the court relied on rules of law

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that were palpably wrong or inapplicable. Otherwise, the trial

court’s decision must stand, even if the appellate court would be

inclined to decide the case differently.

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

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 Private Criminal Complaints of Rafferty, 969 A.2d 578, 581–82

(Pa.Super. 2009) (cleaned up).

Appellant argues that the district attorney’s office “had ample

knowledge of acts committed by Diana Brown but denied Appellant’s private

criminal complaint in bad faith,” such as by erroneously indicating (1) that the

statute of limitations had expired when it had not at the time Appellant filed

the complaint, and (2) that Appellant had not notified the police of the crimes

for investigation when he served the police with the private criminal complaint

simultaneously with providing it to the district attorney. See Appellant’s brief

at 6, 8-10. Notably, Appellant does not provide argument to dispute the other

reasons offered by the district attorney, namely that Appellant offered an

inadequate description of the facts, that the facts alleged did not warrant

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prosecution, and that prosecution was not in the best interest of the

Commonwealth.

The trial court offered the following explanation for its denial of

Appellant’s petition:

In the instant case, to the extent it may be understood,

[Appellant]’s private criminal complaint fails to set forth a

coherent basis upon which a criminal prosecution could be

initiated. In fact, his claims appear wholly frivolous and entirely

devoid of merit.

[Appellant] first contends Ms. Brown made an unsworn

falsification to authorities when she filed a complaint in divorce on

November 30, 2017 stating, “There is currently no pending action

of divorce or annulment between the parties.” See Complaint in

Divorce, 8963 CV 2017, 11/30/17. [Appellant] believes this

constitutes an unsworn false statement pursuant to 18 Pa.C.S.

§ 4904(a). In support, [Appellant] offers an alleged petition for

dissolution of marriage filed with the Supreme Court of Jamaica

(“Jamaican Petition”) on December 22, 2008. Notably,

[Appellant] concedes the Jamaican Petition was not granted, and

that he was lawfully married at the time Ms. Brown filed the

complaint in divorce in Monroe County. Thus, [Appellant] argues

a divorce was pending in Jamaica at the time Ms. Brown filed the

complaint in divorce.

This claim is wholly frivolous and devoid of merit. At a

hearing for the action in divorce, Judge Jennifer Harlacher Sibum

asked Ms. Brown, “One of the other allegations in the many filings

that Mr. Brown put to the court was that the two of you have a

pending divorce in Jamaica, is that true?” N.T. 3/29/19, 8963 CV

2017, [at] 9. Ms. Brown responded, “There is no pending divorce.

I initiated a divorce in 2008 that was discontinued when Mr. Brown

returned to the picture in 2010.” Id. After consideration, Judge

Sibum concluded, “All [the Jamaican Petition] tells me is that there

have been problems in this marriage for a long time and they

clearly haven’t gotten any better.” Id. at 22. There is no evidence

submitted to rebut Ms. Brown’s characterization of the Jamaican

Petition, and we find no basis in the alleged facts to warrant

criminal prosecution.

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Next, [Appellant] contends, “On January 24, 2018, [Ms.]

Brown filed an affidavit under section 3301(d) of the Divorce code.

Ms. Brown’s affidavit was made subject to 18 Pa.C.S. § 4909, i.e.

Witness or informant taking bribes but should have been made

subject to 18 Pa.C.S. § 4904 relating to unsworn falsification to

authorities.’’ At most, this allegation amounts to a ministerial

error. [Appellant]’s belief that a ministerial error amounts to

“fraud upon the court” is wholly frivolous and devoid of merit.

[Appellant]’s third allegation returns to the Jamaican

Petition. Specifically, [Appellant] argues “On March 29, 2019, Ms.

Brown testified under oath that she don’t recall that she has not

actually seen the Jamaica Petition. Ms. Brown further testified

that she put the divorce on hold but provide[d] no verified proof.”

As a result, “Ms. Brown knowingly and intelligently committed

perjury in order for the court to grant her divorce.” For the

reasons discussed, supra, this argument is without merit. Ms.

Brown was extensively questioned and cross-examined in the

divorce action before Judge Sibum. [Appellant] presents no

evidence whatsoever to support his bald assertions. Even a

cursory review of the hearing before Judge Sibum reveals Ms.

Brown to be a credible witness attempting to begin a new life after

a violent attack by her ex-husband.

Finally, [Appellant] contends Ms. Brown forged her

attorney’s signature, asserting “On January 24, Ms. Brown filed an

affidavit with attached Certificate of Compliance upon close

inspection [of] Attorney Strunk’s handwriting and signature were

forged.” [Appellant] offers no evidence to support this claim

beyond a cut and copied comparison, without context or

explanation, of Attorney Strunk’ s cursive signature and a printed

signature. As such, this claim lacks merit and criminal prosecution

is not warranted under the facts alleged.

Here, the district attorney disapproved the private criminal

complaint on [the five aforementioned grounds]. Based on our

review, the facts of the case do not lead only to the conclusion

that the district attorney’s decision was patently discriminatory,

arbitrary or pretextual. To the contrary, the facts here

demonstrate wholly frivolous claims devoid of merit. As such, we

see no basis in fact or law to initiate a criminal prosecution.2

______

2 We note that we need not reach the question of whether

the statute of limitations has expired on the alleged crime.

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Pursuant to 42 Pa.C.S. § 5552(B)(l), the alleged crimes

likely fall within the five year limitation. However, because

[Appellant]’s claim is entirely devoid of merit, and because

we find the District Attorney did not abuse his discretion in

declining to initiate prosecution, we are not required to

reach a legal conclusion on this issue.

[Appellant]’s claims are devoid of merit and certainly do not

meet the heavy burden of demonstrating the district attorney’s

decision amounted to bad faith, fraud or unconstitutionality. We

recognize the importance of prosecutorial discretion and the

district attorney’s duty to conserve and devote the resources of

his office to cases in which there is a likelihood of a conviction. As

such, the district attorney’s decision not to prosecute a private

criminal complaint for reasons including policy matters carries a

presumption of good faith and soundness. Here, we will not

disturb the sound judgment of the district attorney. As a result,

[Appellant]’s petition is denied.

Trial Court Opinion, 7/30/20, at 5-8 (cleaned up).

Appellant has offered this Court no basis to conclude that the trial court

“misapprehended or misinterpreted the district attorney’s decision,” or that its

decision lacked “a legitimate basis in the record.” Rafferty, supra at 581.

On the contrary, the trial court clearly examined the evidence proffered by

Appellant and stated reasonable grounds for its conclusion that several of the

bases stated by the district attorney were sufficient to justify its decision.

This Court has observed that, “[b]oth the district attorney and the trial court

have a responsibility to prevent the misuse of judicial and prosecutorial

resources in the pursuit of pointless prosecutions.” In re Miles, supra at

535. We are convinced that both have satisfied that responsibility in the

instant case.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2021

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