The opinion
DEL SOLE, Judge,
concurring:
I agree with the Majority in affirming the trial court decision not to require the prosecution of this private criminal complaint. However, I cannot agree with the conclusion that this Court’s en banc decision in Commonwealth v. Brown, — *141 Pa.Super. —, 669 A.2d 984 (1995) established the standard of review as set forth on page 134-36 of the Majority Opinion.
I am of the view that the Concurring Opinion of Judge Kelly sets forth a correct analysis of our review function in this type of case. A trial court’s determination whether a prosecutor grossly abused discretion in refusing to approve a private criminal complaint, is not a discretionary act by the trial judge. Rather, it is a legal conclusion based on the record, and, necessitates our examination of the exercise of the prosecutor’s discretion.
For this reason and because the Pennsylvania Constitution, Article 5 § 9, guarantees the right of appellate review of decisions of courts of record, I cannot subscribe to the dicta expressed in the Majority Opinion. Further, to limit review of policy-based prosecutorial decisions to the trial court would prevent prosecutors from appealing trial decision’s to approve a private criminal complaint. In my view, since review itself is a serious excursion into the executive branch functions, the executive must be able to have appellate review.
BECK and POPOVICH, JJ., join.