failure of a complaint to establish a prima facie case is a legal basis for denial
How later courts described this case
- failure of a complaint to establish a prima facie case is a legal basis for denial
Written by the judges who cited it.
The opinion
DEL SOLE, Judge,
dissenting:
Because I conclude the Majority has incorrectly equated lack of a prima facie case with a determination that there exists insufficient evidence to sustain a conviction, I must dissent.
Initially, I note that Appellant has improperly filed the instant petition. These proceedings are governed by Pennsylvania Rule of Civil Procedure 106, 42 Pa.C.S.A. Rule 106 requires that disapproved criminal complaints be brought before a common pleas court judge for review. Here, the individual complaints were not presented to the court, but rather, a petition naming the private affiant and the district attorney as parties was filed. On this basis, the trial court can be affirmed.
*333 Additionally, I cannot agree with the Majority’s determination that the rule expressed in the plurality opinions of Commonwealth v. Brown, 447 Pa.Super. 454 , 669 A.2d 984 (1995), and Commonwealth v. McGinley, 449 Pa.Super. 130 , 673 A.2d 343 (1996) stating the standard of trial court review, is persuasive. In these two en banc cases, a majority of the judges participating disagreed with the proposed presumptive standard. Rather, I conclude that the standard of review as defined in Commonwealth v. Jury, 431 Pa.Super 129, 636 A.2d 164 (1993) remains the correct and current statement of the law.
A decision not to prosecute a private complaint, by a prosecutor for the reason a prima facie case is lacking, is a legal conclusion easily reviewed by the court. If the court concludes that sufficient facts are alleged which, if established, make out a prima facie case, it must direct the filing of the complaint.
However, a prosecutor’s determination that the evidence is insufficient to secure a conviction because proof of all elements of the charge may not be established beyond a reasonable doubt, is the exercise of prosecutorial discretion traditionally granted district attorneys in Pennsylvania.
The record certified to this court on appeal contains a statement by the district attorney that it was concluded as a result of an investigation, that the counsel members’ votes to hire a police officer without regard to the civil service list were based on the advise of the borough solicitor, thereby negating the requisite intent needed for a conviction. 1 Further, the complaints were disapproved with the notation “insufficient evidence” not on the basis of no prima facie case. Under these circumstances, the decision not to prosecute was not an abuse of discretion. As we said in Commonwealth v. Metzker, 442 Pa.Super 94, 658 A.2d 800 (1995):
*334 While we said in Jury the complainant is not required to prove the case beyond a reasonable doubt where disapproval is based on a legal assessment of the complaint, as a policy matter, a prosecutor can consider if a conviction is attainable. There the District Attorney concludes, based on investigation, that a conviction is doubtful or impossible, discretion can and should be exercised to refuse approval.
Viewing the nature of this case, and the district attorney’s analysis, I cannot agree that there was an abuse of prosecutorial discretion. Rather, I conclude the trial court correctly refused to direct prosecution.
. Of passing interest is the recent Pennsylvania Supreme Court decision eliminating veterans' preference points in governmental hiring. Hoffman v. The Township of Whitehall, et al., 544 Pa. 499 , 677 A.2d 1200 (1996).