Commonwealth v. Muroski

SPAETH, President Judge,

concurring and dissenting:

I agree with the majority that a private complainant has standing to appeal a trial court’s decision upholding a district attorney’s refusal to approve the complaint. I disagree with the majority, however, regarding the scope of the district attorney’s responsibility to review the complaint, and also, regarding the scope of the trial court’s review on appeal from the district attorney’s refusal to approve the complaint.

The majority holds that a privant complainant must allege sufficient facts to enable the district attorney to make an “informed decision” on whether to prosecute. Maj. at 1317. I find this requirement equivalent to a requirement that a private complaint must allege probable cause, and in my opinion, that is too strict a requirement. I should hold that the district attorney may be obliged to investigate a private complaint even though the complaint does not allege sufficient facts to show probable cause to prosecute; it is enough, I believe, if the complaint states the general nature and time and place of the offense.

The majority further holds that the trial court, on appeal from the district attorney’s refusal to approve the private complaint in this case, had only to determine whether the complaint alleged probable cause. I believe that the court should have determined, either by hearing or upon affidavit, whether the district attorney investigated the complaint, and then, having made that determination, should further have determined whether the district attorney’s refusal to approve the complaint was a gross abuse of discretion. I *25 should therefore remand this case to the trial court with instructions to make those determinations.

Appellant’s Standing to Appeal

I join in so much of the majority’s opinion as holds that appellant has standing to appeal the trial court’s decision upholding the district attorney’s refusal to approve appellant’s private criminal complaint.

The District Attorney’s Duty to Investigate

-a-

The majority holds that

[i]t is incumbent upon a private complainant to provide the district attorney with sufficient facts to enable him to make an informed decision regarding whether to permit the commencement of criminal proceedings. While some investigation into the allegations of a properly drafted complaint may be necessary in order to enable the district attorney to properly exercise his discretion concerning whether to approve the complaint, such investigation is not necessary where the allegations of criminal conduct contained in the complaint are unsupported by factual averments.

Maj. at 1317.

While this statement does not in so many terms require that a private complaint must allege probable cause, I am unable to interpret it in any other way. In the majority’s view, “investigation [of the allegations of a private criminal complaint] is not necessary” unless the complaint alleges “sufficient facts” to justify a decision to “commence[] criminal proceedings.” Since criminal proceedings may be commenced only upon probable cause, see American Bar Association Standards for Criminal Justice, The Prosecution Function (2d ed. 1982) § 3-3.9, it follows that, according to the majority, a district attorney’s responsibility upon receipt of a private complaint is limited to reading the complaint and determining whether it alleges probable cause to prosecute; only if the complaint does allege probable cause is the *26 district attorney obliged to investigate the complaint. In my view, this imposes too strict a requirement on a private complainant, and takes too limited a view of a district attorney’s responsibilities.

When a district attorney receives a private criminal complaint, the issue of whether the complaint states probable cause is a pure issue of law; its resolution in no sense involves any exercise of the district attorney’s discretion. In contrast, the issue of what to do about the complaint— whether to approve it, disapprove it, or investigate its allegations — necessarily involves an exercise of the district attorney’s discretion. This is true of any complaint, whether the complaint does or does not state probable cause, and whether it has been filed by a private citizen or a police officer.

It used to be that the initiation of a prosecution was a matter for the victim, or his family or friends. However, with the acceptance of the idea that the criminal law, unlike, for example, the law of contracts or property, is to vindicate public rather than private interests, this situation was fundamentally changed. Now we require that the decision to prosecute or not be made by the district attorney, as a responsible public official trained in the law. The private prosecution, or complaint, is only a sort of “safety valve” for those situations where the district attorney does not act. In this way, we believe, we gain some assurance that both the rights of the accused and of the public will be protected. Thus, among the most important of the district attorney’s responsibilities are the responsibilities to investigate complaints, determine whether there is substance to them, and determine whether a prosecution should be initiated. See generally American Bar Association Standards for Criminal Justice, The Prosecution Function (2d ed. 1982) §§ 3-3.1 and accompanying commentary; (although prosecutor ordinarily relies on police for investigation, he has “an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies”); State ex. rel. Koppers v. International Union of Oil, Chemical *27 and Atomic Workers, — W.Va. —, 298 S.E.2d 827 (1982) (discussing role of prosecuting attorney); see also, People v. Pohl, 47 Ill.App.2d 232 , 197 N.E.2d 759 (1964) (prosecuting attorney must investigate facts and determine whether crime has occurred); State v. Graves, 346 Mo. 990 , 144 S.W.2d 91 (1940) (prosecuting attorney may not close eyes to notorious law violations). It is these responsibilities, in combination with the confidence we repose in the district attorney as a responsible public official, that underlie, and explain, our decisions that when a district attorney exercises his discretion not to prosecute, we will disturb his decision only when it represents a gross abuse of discretion.

The district attorney’s responsibility to investigate a complaint is peculiarly demanding in the case of a private complaint. For a private complaint, by reason of the very fact that it is private, is likely to be inartfully expressed. Investigation may nevertheless disclose that a crime was committed, the complaint not disclosing that fact only because the complainant did not know how to express it. Therefore, upon receiving a private criminal complaint, the district attorney may not, as the trial court held, and as the majority holds, only look to see whether the complaint states probable cause, and if it does not, disapprove it. The district attorney must further ask whether, even though the complaint does not state probable cause, it warrants some investigation. Of course, after such an investigation the district attorney may still decide to disapprove the complaint, for the investigation may disclose, not that the complaint is inartfully expressed, but that it is without substance; or there may be other reasons that warrant a decision by the district attorney, in the exercise of his discretion, not to prosecute.

Our rules of criminal procedure are consistent with these principles, for they require only that a complaint contain “[i]n a court case, a summary of the facts sufficient to advise the defendant of the nature of the offense charged ...” Pa.R.Crim.P. 132(6)(a).

*28 Our cases hold that “a complaint or information must contain all the essential elements of the offense sought to be charged, and, if it fails in this respect, it is not sufficient that the indictment supply them, because a defendant should not be required to answer a charge different from, and unrelated to, the one for which he was arrested and held to bail.” Commonwealth v. Musto, 348 Pa. 300, 302-03 , 35 A.2d 307, 309 (1944) (STERN, J.). Accord: Harger v. Commonwealth, Department of Transportation, 17 Pa.Cmwlth. 142 , 330 A.2d 883 (1975). See also Art. I, sec. 9, of the Pa. Const. (“In all criminal prosecutions the accused hath a right ... to demand the nature and cause of the accusation against him____”). However, while a complaint used to institute a criminal proceeding must state the offense committed by the accused, and the general nature and time and place of the offense, it need not set forth the charges with the particularity of an indictment. Commonwealth ex rel. Garland v. Ashe, 344 Pa. 407 , 26 A.2d 190 (1942); Commonwealth v. Carson, 166 Pa. 179 , 30 A. 985 (1895); Commonwealth v. Moon, 174 Pa.Super. 334 , 101 A.2d 147 (1953); Commonwealth v. Ginsberg, 143 Pa.Super. 317 , 18 A.2d 121 (1940). “The purpose of a preliminary written charge ... is to inform the defendant as to the offense with which he is charged. . . . The offense may be described by employing generic terms or in words by which the crime ‘is designated in the common language of the people’ ”. . . . Commonwealth ex rel. Jenkins v. Costello, 141 Pa.Super. 183, 185 , 14 A.2d 567, 568 (1940). Accord: Commonwealth v. Grego, 116 Pa.Super. 295 , 176 A. 550 (1935); Commonwealth v. Miller and Burke, 77 Pa.Super. 469 (1921); Commonwealth v. Campbell, 22 Pa.Super. 98 (1903). As stated in Grego, “ ‘The only question to be considered [as to the sufficiency of the complaint] is whether the written accusation [the] defendant gave bail to answer sufficiently informed her that she might be put on trial for the crime charged in the indictment.’ ” 116 Pa.Super. at 296 , 176 A. at 551 , (citation omitted).

*29 Commonwealth v. Wilkinson, 278 Pa.Super. 490, 497-98 , 420 A.2d 647, 650-651 (1980) (footnote omitted).

-b-

In my view, the district attorney should have investigated appellant’s complaint. The majority is of course entirely correct that the complaint fails to allege probable cause. The complaint is not, however, entirely devoid of factual allegations. Two persons are identified (Chester B. Muro-ski and R.M. Marks), a date is stated (August 24, 1981), and a place (the State Correctional Institution at Camp Hill), from which, the affidavit discloses, appellant is filing the complaint as an inmate. The gist of the complaint appears to be that Chester B. Muroski, “acting in his official capacity”, “threatened unlawful harm to R.M. Marks” in order to have Marks “terrorize” appellant and “Physically] inter-fer[e] [with appellant’s] right to freedom of speech and mail.” I believe these allegations, meager as they are, were adequate to “state the offense committed by the accused, and the general nature and time and place of the of-fense____” Commonwealth v. Wilkinson, supra.

Of course, there may be no substance to the allegations; they may very well be entirely false, and nothing I say in this opinion intimates the least confidence in them. The issue, however, at least as I see it, is whether a district attorney receiving the complaint would be justified in concluding, as the trial court and the majority have concluded, that because the allegations do not state probable cause, no investigation was warranted. I freely acknowledge that I have found this a particularly difficult issue, and in resolving it differently the majority may well have the better of the argument. Nevertheless, I have myself been persuaded to the conclusion that the complaint was sufficient to require the district áttorney to investigate because of an additional fact not so far mentioned that gives this case a particular dimension. We may take judicial notice of the fact that on the date the alleged criminal activity occurred, Chester B. Muroski was the District Attorney of Luzerne *30 County, see 105 Pennsylvania Manual at 510, and that when the complaint was filed, he was a judge on the Court of Common Pleas of that county, having been elected on November 3, 1981, see 106 Pennsylvania Manual at 441. Thus, the situation presented to the District Attorney of Cumberland County, when appellant’s complaint was filed, was that an inmate of a state correctional institution appeared to be alleging some sort of assaultive conduct by one R.M. Marks, and to be further alleging that this conduct was attributable to the former District Attorney, who had become a judge of the Court of Common Pleas of Luzerne County. I have already commented upon the confidence that our system of criminal justice reposes in the district attorney as a responsible public official. To deserve that confidence, a district attorney “should avoid the appearance or reality of a conflict of interest with respect to his official duties.” ABA Standards, supra, § 3-1.2. “It is of the utmost importance that the prosecutor avoid participation in a case in circumstances where any implication of partiality may cast a shadow over the integrity of his office.” Id., Commentary; Commonwealth v. Miller, 281 Pa.Super. 392 , 422 A.2d 525 , (1980) (en banc) (we rely upon the integrity of district attorneys not to participate in prosecutions where there would be appearance of impropriety); Commonwealth v. Toth, 455 Pa. 154 , 314 A.2d 275 (1974) (district attorney holds office of unusual responsibility and must exercise duties with complete impartiality); Commonwealth v. Dunlap, 474 Pa. 155 , 377 A.2d 975 (1977) (opinion in support of reversal) (appearance of impropriety if district attorney represents victim of crime against defendant in civil proceedings). If one district attorney were to disapprove a private complaint, out-of-hand and with no investigation,, simply because it was against an individual who had been another district attorney and had become a judge, these precepts would be violated. I do not suggest that that is what happened here. By its affirmance of the trial court’s order, however, the majority fails to dispel any possible appearance of such an impropriety.

*31

The Trial Court’s Responsibility

It may very well be that the district attorney did make an investigation of appellant’s complaint, or that even if he did not, he had sufficient reasons for not approving the complaint. The difficulty is that we do not know the basis of the district attorney’s refusal to approve the complaint. The reason we do not know is because the trial court misconceived its function on appellant’s appeal from the district attorney’s refusal to approve the complaint — a misconception given precedential force by the majority’s opinion.

The issue before the trial court was whether in refusing to approve the complaint the district attorney had grossly abused his discretion. See In re Wood, 333 Pa.Super. 597, 602 , 482 A.2d 1033, 1036 (1984), quoting Commonwealth v. Eisemann, 276 Pa.Super. 543, 545-47 , 419 A.2d 591, 592-93 (1980); see also Commonwealth v. Williamson, 298 Pa.Super. 81 , 444 A.2d 669 (1982). The trial court, however, looked only to see whether the complaint alleged probable cause. So far as the record discloses at least, the trial court conducted no hearing; thus, in support of its order, the trial court stated:

[Cjareful consideration of the affidavit discloses that it is insufficient because it consists solely of generalities without specifics. The complaint likewise displays a complete failure to aver any facts supporting the alleged criminal activity.

From this it is evident that the trial court regarded the issue of abuse of discretion and the issue of probable cause as the same issue under different names — in other words, that the court believed that if a private criminal complaint fails to aver facts that if accepted, establish probable cause to believe that a crime has been committed, then a district attorney may, for that reason alone, disapprove the complaint. This is the position now adopted by the majority.

The issues of probable cause and abuse of discretion, however, are not the same. As I have attempted to explain, even though a complaint does not allege probable cause, *32 still, the district attorney may have had a responsibility to investigate the complaint. Therefore, in my view, among the questions the trial court must ask, on appeal from a district attorney’s refusal to approve a private complaint, are: Does the complaint, although not alleging probable cause, nevertheless allege sufficient facts to “state the offense committed by the accused, and the general nature and time and place of the offense”? Commonwealth v. Wilkinson, supra. If the complaint does allege such facts, did the district attorney investigate? If he did, was his decision not to prosecute a gross abuse of discretion? And finally, if the district attorney did not investigate, was his decision not to prosecute without making an investigation a gross abuse of discretion.

I do not mean to suggest that the trial court must conform to a particular procedure. Whether after hearing or upon affidavit, however, the court should make a determination on each of these questions.

Neither do I mean to suggest that the trial court is to establish rigid guidelines by which a district attorney’s conduct is to be judged. It is beyond dispute that a district attorney has broad discretion, Commonwealth v. Eisem-ann, 308 Pa.Super. 16, 20 , 453 A.2d 1045 , (1982), and it is emphatically not a reviewing court’s function either to second-guess or to dictate a district attorney’s decisions. It is equally true, however, that the court does have the power, and therefore the responsibility, to assess the district attorney’s conduct against the standard of gross abuse of discretion. Commonwealth v. Eisemann, supra.

Obviously, what constitutes a gross abuse of discretion cannot be stated by a simple formula. Everything will depend on the particular facts of the case and the district’s attorney’s articulated reasons for acting, or failing to act, in the particular circumstances. For example, a court may find a gross abuse of discretion in a district attorney’s pattern of discriminatory prosecution, see, e.g., Yick v. Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886); United States v. Falk, 479 F.2d 616, 618 (7th Cir.1973); People v. Utica Daw’s Drug Co., 16 App.Div.2d 12, 225 *33 N.Y.S.2d 128 , 4 A.L.R.3d 393 (1962); or in retaliatory prosecutions based on personal or other impermissible motives, see, e.g., Blackledge v. Perry, 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1924); United States v. Steele, 461 F.2d 1148, 1152 (9th Cir.1972). Similarly, a district attorney may be found to have grossly abused his discretion for his blanket refusal to prosecute for violations of a particular statute, Nader v. Saxbe, 497 F.2d 676, 679 (D.C.Cir.1974), or for refusing to prosecute solely because the accused is a public official, Commonwealth v. Komatowski, 347 Pa. 445, 450 , 32 A.2d at 905, 908 (1943).

The fact that it is difficult to define gross abuse of discretion does not, however, relieve the court from the obligation to undertake a definition. As the court in Medical Committee for Human Rights v. SEC, 432 F.2d 659, 673 (D.C.Cir.1970), stated: “The decisions of this court have never allowed the phrase ‘prosecutorial discretion’ to be treated as a magical incantation which automatically provides a shield for arbitrariness.” See also Nader v. Saxbe, supra at 680 n. 19 (“The law has long recognized the distinction between judicial usurpation of discretionary authority and judicial review of the statutory and constitutional limits to that authority.”). See generally Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv.L.Rev. 1521 (1981) (noting the “evils of broad discretion” and calling for increased judicial review of prosecutorial decisions); Note, Reviewability of Prosecutorial Discretion: Failure to Prosecute, 75 Colum.L.Rev. 130, 143 (1975) (expanding the courts’ scope of review of prosecutor’s decisions is not tantamount to telling the prosecutor how to conduct his office).

I should therefore remand to the trial court with instructions to determine whether in refusing to approve appellant’s complaint, the district attorney grossly abused his discretion.