In Re Private Criminal Complaint of Wilson

BENDER, J.,

Dissenting.

¶ 1 I agree with my colleagues in the Majority that Appellant has standing to appeal the order under review; 13 however, given the state of the record before this Court, I would conclude that review of the order in question on the record before us is meaningless.

*220 ¶ 2 In deciding whether to approve the private complaint, the District Attorney’s office was privy to an extensive amount of material. As the Majority points out, the District Attorney, upon disapproving the private complaint, issued a document which provided the following:

Prior to ruling on the attached Private Criminal Complaint, Erie County Detective Joseph Spusta conducted a thorough investigation including but not limited to the following, which was personally reviewed by the Attorney for the Commonwealth, District Attorney Bradley H. Foulk;

1. Any and all medical reports including Saint Vincent’s Health Center, private medical practitioners reports and X-rays;

2. Written and video-taped statements of Erie Bureau of Police Officers Anthony DeBracco, Patrolman Rick Lo-rah, Sgt. J.C. Hunter, Officer Robert K. Borland, Sgt. Bruce Casale, Patrolman Adam Gratti, [Lt.] Robert Johns, Jr., and Chief Charles Bowers, Jr.;

3. Written statement of Robert Moyer, Supervisor — Communications Center;

4. Booking Records for John D. Wilson II;

5. Radio transmissions during the relevant period of time;

6. Video-taped statements of the following civilians, Bryan Greene, Patrick J. Wisinski, Chris K. Miller;

7. Press release prepared by the Erie Bureau of Police;

8. Report prepared by Detective Joseph Spusta;

9. Report prepared by Lt. D.J. Fuhr-man;

10. Applicable law relating to criminal offenses of simple assault, official oppression, and recklessly endangering;

11. “Super soaker” guns in question;

12.Supporting Affidavit of John Wilson II.

Despite the fact than an anonymous witness claimed to have some knowledge regarding this incident, the Commonwealth was unable to locate said witness who was interviewed by the Erie Times News, despite the Commonwealth’s public request that any and all persons having knowledge of this incident come forward to be interviewed. It should be noted that the alleged incident took place on August 10, 2002, at approximately 12:30 a.m., and a formal referral, by way of a Private Criminal Complaint to the District Attorney’s Office was filed with District Justice Paul Urbaniak on September 26, 2002. Consequently, the investigation conducted by the District Attorney’s Office was done approximately six weeks after the incident occurred. The Commonwealth did not let the delay in the filing of the Private Criminal Complaint in anyway influence its decision.

Majority Opinion at 215-16.

¶ 3 After becoming aware of all of the materials relied on by the District Attorney to arrive at a decision, Appellant filed a motion requesting permission to inspect the District Attorney’s file. Reproduced Record at 44-47. Said motion was denied by the trial court. Reproduced Record at 48. However, the trial court did issue an order directing that the items reviewed by the District Attorney be provided to the trial court for its review. Reproduced Record at 43.

¶ 4 While it would seem that supplying the trial court with the items in question could constitute an ex parte communication between the District Attorney and the court, there are situations when ex parte communications are permissible. However, the problem that now presents itself, and which I do not believe the Majority *221 addresses, is how are we to conduct any meaningful review of the trial court’s actions if we do not have the information upon which the trial court based its decision?

¶ 5 We recognize that we cannot blame the state of the record on Appellant, since Appellant does not have and has not been given access to the materials in question. See Denial of Appellant’s Motion for Inspection, Reproduced Record at 48, Appellant’s brief at 4.

¶ 6 The majority concludes,

The private criminal complainant has the burden to prove the district attorney abused his discretion, and that burden is a heavy one. The complainant must do more than merely assert the district attorney’s decision is flawed in these regards. The complainant must show the facts of the case lead only to the conclusion that the district attorney’s decision was patently discriminatory, arbitrary or pretextual, and therefore not in the public interest. In the absence of such evidence, the trial court cannot presume to supervise the district attorney’s exercise of prosecutorial discretion, and the district attorney’s decision will be left undisturbed.

Majority Opinion at 218.

¶ 7 To say that the private criminal complainant has a heavy burden is at best an understatement. How can such a heavy burden be met when the complainant has no idea of the facts upon which the trial court based its decision. How can the complainant do more than make mere assertions without the benefit of the record relied upon by the trial court. And how possibly can the complainant show the facts of the case lead anywhere when the complainant is not permitted to see the facts in question. Under this procedure, a complainant can never prevail.

¶ 8 I feel bound at this point to further note that it seems that in our rush to give the District Attorney and the trial court unchecked discretion, we have lost sight of the complainant’s version of the facts. Attached to the private criminal complaint is a set of facts which differ significantly from the facts the trial court set forth. See Majority Opinion at 203 and 204.

¶ 9 The complainant’s version of the facts are as follows:

1. On the date, and at the time and place listed aforesaid, I was a passenger in a vehicle traveling east on East 14th Street. As we passed the Intersection of East 14th and French Streets and proceeded toward Holland Street, the driver of our vehicle pulled the vehicle to the right side of the road because we were being pursued by the defendant, Charles Bowers and a City of Erie Police cruiser was approaching us with its lights flashing. As we pulled to the side of the road, he put it in park, took the keys out of the ignition, placed them on the dashboard, and put his hands on the steering wheel. When I saw him doing this, I put my hands on my knees, at which time Charles Bowers, who was off-duty at the time, approached the vehicle and punched me in the nose through the open passenger-side car window.

2. Immediately after punching me, Mr. Bowers started directing profanities at me and the other three occupants of the vehicle and stated “You f.. .ed with the wrong m.f.. .er. I’m the God... .n Chief of Police.”

3. Mr. Bowers then opened the passenger side door and removed me from the vehicle by grabbing my arm, twisting it behind my back, and pulling me out of the vehicle;

4. Once I was outside of the vehicle with my arm twisted behind me, Mr. *222 Bowers grabbed a chain that I was wearing around my neck and proceeded to lift me, by the chain and the belt on my pants, above the passenger door, at which time he violently threw my body on to the roof of the vehicle;

5. While my head and the upper part of my body were lying on the roof of the vehicle, Mr. Bowers grabbed the chair around my neck, jerked it toward himself and asked me if I was a f.. .ing dog;

6. Mr. Bowers then proceeded to pull me off the roof of the vehicle on to the ground. He then took me to the back of the vehicle and threw me on to the trunk of the car at which time I was handcuffed and led into a City of Erie Police cruiser and taken to the Erie Police Station for booking and arrest. I was ultimately released at approximately 2:45 a.m.

7. At no time from the moment that our vehicle pulled to the side of the road did I, or any of the passengers in the vehicle in which I was riding, in any way make any type of movement toward Mr. Bowers or any of the other police officers. In addition, no one made any movements inside of the vehicle and no one made any statements directed at Mr. Bowers or the other officers.

Reproduced Record at 5a and 6a.

¶ 10 What we have are allegations that the Chief of Police of Erie punched the complainant in the nose then forcibly removed the complainant from the vehicle and lifted the complainant by a chain on his neck and his belt and threw him onto the roof of the vehicle. He then asked him if he was a fucking dog and pulled him to the ground. He then threw him onto the trunk of the vehicle. While doing this, the Chief of Police was uttering profanity, “You fucked with the wrong motherfucker. I’m the God dam Chief of Police.” This was allegedly done in front of uniformed City of Erie Police Officers and other civilians. Would it not impact our decision in this case to see the written and videotaped statements of the police officers who witnessed this episode? Why was complainant not simply arrested by the uniformed police officers on the order of the chief? Would it not be helpful in our decision making to see the video-taped statements of the civilian witnesses? The District Attorney saw these statements, as did the trial court. However, the complainant, who has that heavy burden, was not permitted to see these statements. We who in theory review the trial courts decision have not seen these statements.

¶ 11 Does this not seem peculiar? The complainant who has the heavy burden to show that the facts of the case lead to a conclusion, is not permitted to see the facts. That we the appellate court, reviewing the trial court decision, do not have the facts before us upon which we would base a decision. Have we gone through the looking glass? Are we in wonderland?

¶ 12 Does it not seem that the Chief of Police would want vindication of his reputation by a court finding his version of the facts to be the truth, or do we not need such court intervention? Is it permissible for a plain clothes Chief of Police to beat the complainant in front of uniformed police officers and civilians for no purpose other than he is angry? Do we not have allegations of police brutality and abuse of office which constitute serious questions requiring resolution for the public good? How will this review process leave the public feeling? If it is O.K. for a Police Chief to beat someone who displeased him, is such action permitted by ordinary citizens?

¶ 13 Should not the facts of this case be determined in open court with the public looking on, rather than in a process resembling a star chamber? What good comes *223 from secreting the facts from our court? Could the answer be that we will make the wrong decision with the facts, but will make the right decision without the facts? If we are not going to review the decision of the trial court, why not so state? To say there is no review of the trial court is preferable to a pretend review without the facts.

¶ 14 To conduct review on the state of the record as it presently exists is to conduct no review whatsoever. It is our responsibility to review the complete record using a proper standard of review. I would propose that the “missing” record be sealed and supplied to our Court so as to permit a meaningful review.

. See Majority Opinion at 218.