# Commonwealth v. Brown

> Superior Court of Pennsylvania · December 29, 1995 · 447 Pa. Super. 454

URL: https://www.frixlaw.com/law-library/cases/9705102

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Michael Reuben BROWN
- **Court:** Superior Court of Pennsylvania
- **Decided:** December 29, 1995
- **Citations:** 447 Pa. Super. 454; 669 A.2d 984; 1995 Pa. Super. LEXIS 4120
- **Precedential status:** Published
- **Opinion:** Concurrence by Kelly
- **Judges:** Rowley, Cavanaugh, Beck, Tamilia, Kelly, Johnson, Hudock, Elliott, Saylor
- **Cited by:** 22 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/9705102

## How later opinions describe it (automated extraction)

- stating that “our review is limited to determining whether the trial court abused its discretion or committed an error of law”

## Opinion text

KELLY, Judge,
concurring:
I agree with and join the majority’s resolution of the separation of powers issue raised by the Attorney General. I also agree with the majority’s ultimate decision to affirm the common pleas court’s conclusion that the Attorney General grossly abused his discretion in disapproving Mr. Buckley’s private criminal complaint. I write separately, however, to express my dissatisfaction with the majority’s discussion of this Court’s standard of review with regard to private criminal complaints. Accordingly, I concur.
In its opinion, the majority states that Commonwealth v. Jury, 431 Pa.Super. 129 , 636 A.2d 164 (1993), allocatur denied, 537 Pa. 647 , 644 A.2d 733 (1994), “incorrectly establishes that an appellate court directly reviews the prosecutor’s decision *471 regarding a private criminal complaint.” (Majority Opinion at 466). I believe that the majority misreads that case. In reality, Commonwealth v. Jury, supra, establishes the same standard of review which the majority elaborates upon in its opinion.
In Commonwealth v. Jury, supra, this Court acknowledged that the proper procedure for an affiant to challenge the disapproval of a private criminal complaint is to file a complaint with the common pleas court. Id. at 136-37 , 636 A.2d at 167-68 . Hence, direct appellate review of the disapproval of private criminal complaints was not even contemplated in, let alone established by, that case. We stated only that when a private criminal complaint is disapproved based upon “wholly discretionary matters of policy, this Court will not disturb that determination absent a gross abuse of discretion.” Id. at 137 , 636 A.2d at 168 (citing Commonwealth v. Pritchard, 408 Pa.Super. 221, 283 , 596 A.2d 827, 833 (1991)); In re Wood, 333 Pa.Super. 597, 602 , 482 A.2d 1033, 1036 (1984), quoting Commonwealth v. Eisemann, 276 Pa.Super. 543, 546 , 419 A.2d 591, 593 (1980)). We further stated that “[s]uch a policy decision is subject only to an abuse of discretion standard by the reviewing court.” Id. at 144, 636 A.2d at 171 (citing Commonwealth v. Benz, 523 Pa. 203 , 565 A.2d 764 (1989); Commonwealth v. Pritchard, supra) (emphasis added). Thus, contrary to the majority’s opinion, Commonwealth v. Jury, supra, recognizes that the reviewing court’s, i.e., the appellate court’s, standard of review from the common pleas court’s ruling on the disapproval of a private criminal complaint by the Attorney General is that of abuse of discretion and the common pleas court’s standard of review from such a disapproval is, in turn, that of gross abuse of discretion.
What Commonwealth v. Jury, supra, also recognizes and the majority’s opinion does not is that within these standards of review is an implicit and undeniable proposition. This Court cannot affirm the common pleas court’s order approving Mr. Buckley’s private criminal complaint unless we also contemporaneously conclude that the Attorney General grossly abused his discretion in disapproving it. In other words, if the *472 Attorney General did not grossly abuse his discretion in disapproving Mr. Buckley’s private criminal complaint, then we would have to reverse the common pleas court’s order because its issuance would necessarily be an abuse of discretion. See Commonwealth v. Metzker, 442 Pa.Super. 94, 97 , 658 A.2d 800, 801 (1995) (policy decision not to prosecute will not be disturbed absent gross abuse of discretion); In re Maloney, 481 Pa.Super. 321 , 332, 636 A.2d 671, 676-77 (1994) (policy decision not to prosecute where facts suggested strong possibility of self-defense “cannot be deemed a gross abuse of discretion”); Commonwealth v. Eisemann, supra at 546, 419 A.2d at 593 (prosecutorial discretion to disapprove private criminal complaint should not be disturbed absent gross abuse of discretion). Unquestionably, my distinguished colleague, Judge McEwen, recognized this when, writing for an en banc panel of this Court, he stated:
... we find that the ruling of the trial court was not an abuse of discretion and, thereby, of course, conclude that the district attorney did not abuse his discretion when he disapproved the private criminal complaint of appellant.
Commonwealth v. Muroski, 352 Pa.Super. 15, 23 , 506 A.2d 1312, 1317 (1986) (en banc) (emphasis added). 1
The reason that our abuse of discretion standard of review requires an inquiry into the common pleas court’s gross abuse of discretion standard of review is really quite simple. Our Supreme Court has defined abuse of discretion as follows:
“... [a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable,- or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” (Citations omitted).
Commonwealth v. Wade, 485 Pa. 453, 467 , 402 A.2d 1360, 1367 (1979) (quoting Garrett’s Estate, 335 Pa. 287, 293 , 6 A.2d 858, 860 (1939)). Further, the substitution of judicial discretion for *473 that of the Attorney General may not occur. See Commonwealth v. Slick, 432 Pa.Super. 563, 565 , 639 A.2d 482, 483 (1994), allocatur denied, 538 Pa. 669 , 649 A.2d 671 (1994) (quoting In re Petition of Acchione, 425 Pa. 23, 30 , 227 A.2d 816, 820 (1967)). Consequently, we cannot determine if the common pleas court misapplied the law or substituted its discretion for that of the Attorney General without also examining the common pleas court’s gross abuse of discretion standard of review in analyzing the reasons provided for the disapproval of a private criminal complaint.
Instantly, the common pleas court would have misapplied the law and substituted its discretion for that of the Attorney General if it approved Mr. Buckley’s private criminal complaint without evidence of a gross abuse of the Attorney General’s discretion in disapproving it. Thus, the abuse of discretion standard which governs our review of the common pleas court’s order approving Mr. Buckley’s private criminal complaint inherently requires our inquiry into the gross abuse of discretion standard employed by the common pleas court in reviewing the Attorney General’s disapproval of that complaint. Indeed, the majority unknowingly analyzes the common pleas court’s standard of review with regard to the Attorney General’s disapproval of Mr. Buckley’s private criminal complaint via our standard of review with regard to the ruling of that court by continually agreeing with the common pleas court’s application of the facts of this case. (See Majority Opinion at 465-470). Therefore, although I agree with the ultimate result which the majority incongruously reaches, I conclude that its criticism of Commonwealth v. Jury, supra, is unwarranted and its standard of review is not completely accurate. Accordingly, because I conclude that the common pleas court did not misapply the law or substitute its discretion for that of the Attorney General in approving Mr. Buckley’s private criminal complaint and finding that the Attorney General’s reasons for disapproving that complaint constitute a gross abuse of discretion, I concur.
BECK and FORD ELLIOTT, JJ., joined.
. In this case, we upheld a common pleas court’s affirmance of a district attorney's disapproval of a private criminal complaint based upon lack of probable cause. Id.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705102. Public record. Not legal advice.