# Commonwealth v. McGinley

> Superior Court of Pennsylvania · March 11, 1996 · 449 Pa. Super. 130

URL: https://www.frixlaw.com/law-library/cases/9533987

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. William McGINLEY and Raymond W. Anthony. Appeal of James Earnest JONES
- **Court:** Superior Court of Pennsylvania
- **Decided:** March 11, 1996
- **Citations:** 449 Pa. Super. 130; 673 A.2d 343; 1996 Pa. Super. LEXIS 331
- **Precedential status:** Published
- **Opinion:** Concurrence by Sole
- **Judges:** Beck, Cirillo, Del, Elliott, Ford, McEWEN, Popovich, Rowley, Saylor, Sole, Tamilia
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9533987

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9533987. Public record. Not legal advice.