In Re: Capper, M., Appeal of: Capper, M.

J-A21032-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: MARK E. CAPPER : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: MARK E. CAPPER :

:

:

:

:

: No. 293 EDA 2023

Appeal from the Order Entered December 22, 2022

In the Court of Common Pleas of Chester County

Criminal Division at CP-15-MD-0003142-2022

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 27, 2024

Mark E. Capper (Appellant) appeals from the order denying his petition

to review the Commonwealth’s disapproval of his private criminal complaint.1

We affirm.

The trial court explained:

In October 2022, Appellant presented a private criminal

complaint (“Complaint”") to the Chester County District Attorney’s

Office (“Commonwealth”) for approval. Appellant was the affiant

on the Complaint. The summary of facts section in the

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1 Pennsylvania Rule of Criminal Procedure 506 “authorizes private citizens to

file criminal complaints against other persons before the appropriate issuing

authority. Before doing so, however, the private criminal complaint must first

be submitted to an attorney for the Commonwealth for approval or

disapproval. If the attorney for the Commonwealth disapproves the filing of

the private criminal complaint with the issuing authority, Rule 506 thereafter

permits the private complainant to petition the court of common pleas to

review the disapproval decision.” In re Ajaj, 288 A.3d 94, 96 (Pa. 2023)

(footnotes omitted).

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Complaint reads in its entirety: “[o]n the morning of May

26, 2022, at approximately 11[:]00, Chester County

Sheriff’s Corporal Lawson and Deputy Schuibbeo

unlawfully removed me from a public meeting in a public

venue against my will.”

Appellant claimed, without more, that the behavior was a

violation of the Pennsylvania Crimes Code at 18 Pa.C.S. § 5301[,

Official Oppression]. [O]n November 7, 2022, the Commonwealth

disapproved the Complaint due to “insufficient probable cause.”

Thereafter, on or about November 22, 2022, Appellant filed his

Petition for Review of the Commonwealth’s Disapproval of the

Complaint citing Pa.R.Crim.P. 506 entitled “Approval of Private

Complaints.”

… A hearing on the matter was scheduled for December 20,

2022. Appellant argued that on May 26, 2022, while at the

Chester County Library in Exton, Pennsylvania, Chester County

Sheriff Corporal Lawson and Deputy Schuibbeo unlawfully

removed him from a public “town hall” meeting held by United

States Representative Chrissy Houlahan. See N.T., 12/20/2022,

[at] … 5. The Commonwealth responded by reiterating its original

position that Appellant’s Complaint lacked sufficient probable

cause. The Commonwealth argued that an official’s knowledge

that their conduct is illegal is a statutory requirement of the charge

of Official Oppression. Id. at 7. The Commonwealth further

stated that Appellant’s Complaint did not assert sufficient facts to

allege that the deputies knew that their actions were illegal. Id.

at 7-8. [T]herefore, the Commonwealth denied the Complaint.

Appellant, however, pointed out that he submitted a five (5)

minute video to the Commonwealth to support his Complaint.

Appellant stated that he informed Corporal Lawson that Appellant

“could sue [Lawson] personally for what he was doing.” Id.

Importantly, the Commonwealth did not consider the video

when evaluating Appellant’s Complaint. Id. Yet Appellant asked

that this court review the video to determine if the Complaint

should have been denied. Id. This court declined to review the

video because the Commonwealth rejected the Complaint for

insufficient probable cause. Stated another way, the Complaint

did not contain sufficient material facts to support the allegation

of Official Oppression, 18 Pa.C.S. § 5301.

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After the hearing and a review of the relevant case law, this

court denied Appellant’s petition. This court agreed the Complaint

failed to set forth sufficient probable cause for the charge of

Official Oppression under 18 Pa.C.S. § 5301.

Trial Court Opinion (TCO), 3/27/23, at 1-3 (emphasis added; some spacing

altered).

Appellant proceeded pro se before the trial court.2 Appellant

subsequently obtained counsel, who filed Appellant’s notice of appeal on

January 20, 2023. On February 13, 2023, Appellant filed a counseled, court-

ordered “Concise Statement of Issues” pursuant to Pa.R.A.P. 1925(b).

Appellant asserted he could not “readily discern the basis for th[e trial c]ourt’s

decision as the [c]ourt made no statements on the record regarding

[Appellant’s] appeal, and the Order denying his appeal contained no further

information.” Rule 1925(b) Statement, 2/13/23, at 1. Appellant continued:

Therefore, the following statement of errors can be averred only

in general terms:

1. The [c]ourt erred in denying [Appellant’s] appeal of the Chester

County District Attorney’s disapproval of [Appellant’s] Private

Criminal Complaint.

2. The [c]ourt erred in failing to conduct the required de novo

review of the Chester County District Attorney’s disapproval of

[Appellant’s] Private Criminal Complaint.

3. The [c]ourt erred by failing to accept evidence and testimony

from [Appellant], a pro se litigant, when he both attempted to

offer it and suggested it was necessary.

Id. at 1-2.

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2 Appellant declined the trial court’s offer for additional time to obtain counsel

and stated that he wanted to proceed pro se. N.T., 12/20/22, at 4.

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The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

Pertinently, the court recognized the Pennsylvania Supreme Court’s

intervening pronouncement of new law in In re Ajaj. See TCO at 5.3 The

Supreme Court held that, “when reviewing a prosecutor’s decision

disapproving a private criminal complaint under Rule 506, a court of common

pleas may only overturn that decision if the private complainant demonstrates

that the disapproval decision amounted to bad faith, occurred due to fraud, or

was unconstitutional.” Ajaj, 288 A.3d at 109. Ajaj was decided on January

19, 2023. The “general rule is that the decision announcing a new rule of law

is applied retroactively so that a party whose case is pending on direct appeal

is entitled to the benefit of the changes in the law.” Commonwealth v. Hays,

218 A.3d 1260, 1264-65 (Pa. 2019). Here, the trial court opined that its pre-

Ajaj rationale was “sufficient to support its December 22, 2022 Order,” but

given the “recent change of law … the court [conducted] further analysis … to

further support why its December 22, 2022 Order should be affirmed.” TCO

at 5.

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3 “When th[e Pennsylvania Supreme] Court issues a ruling that overrules prior

law, expresses a fundamental break from precedent, upon which litigants may

have relied, or decides an issue of first impression not clearly foreshadowed

by precedent, this Court announces a new rule of law. One of the hallmarks

of whether this Court has issued a new rule of law is if the decision overrules,

modifies, or limits any previous opinions of this Court.” In re L.J., 79 A.3d

1073, 1087 (Pa. 2013) (citations omitted).

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On appeal, Appellant deviates from his concise statement in presenting

the following issues:

1. Where the intervening law changed during the pendency of an

appeal of disapproval of a private criminal complaint, and the

appellee-complainant [sic] was appealing a disapproval for legal

reasons and was therefore not required to previously show bad

faith, fraud, or unconstitutionality of the district attorney’s

disapproval, should this Court vacate the trial court’s denial of the

complainant’s appeal to allow him a hearing on the new legal

standard?

2. Where a district attorney denied a complainant’s private

criminal complaint solely for ‘insufficient probable cause’, was it

an error of law for the trial court to refuse to accept the video

evidence a pro se complainant attempted to offer to refute that

disapproval?

3. Where the rules require a district attorney to provide all the

reasons for disapproval of a private criminal complaint, the district

attorney asserts a sole reason—insufficient probable cause—was

it error and a violation of the complainant’s constitutional due

process protections for the [trial c]ourt to hold a hearing on an

entirely different issue without giv[ing] the complainant any notice

of the purpose of the new hearing—even during the pendency of

the hearing itself?

Appellant’s Brief at 4-5.

In his first issue, Appellant cites Ajaj, and asks us to vacate the trial

court’s order and remand the case for Appellant to “establish the District

Attorney’s disapproval was improper under the new standard.” Id. at 7-8.

The Commonwealth argues Appellant waived this issue because his concise

statement “made no mention of a change in standard or how the [trial c]ourt’s

review was a failure.” Commonwealth’s Brief at 7 (citing Pa.R.A.P.

1925(b)(3)(iv)). We agree.

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Ajaj was decided on January 19, 2023, but Appellant did not raise or

acknowledge the decision in his concise statement filed on February 13, 2023.

When the trial court ordered Appellant to file a concise statement, it

specifically advised that any issue “not properly included in the Statement

timely filed and served pursuant to Pa.R.A.P. No. 1925(b) shall be deemed

waived. Attention is directed to Pa.R.A.P. No. 1925(b)(4) which sets forth

requirements for the Statement.” See Order, 1/26/23; see also Greater

Erie Indus. Development Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 225 (Pa. Super. 2014) (“In determining whether an appellant has waived

his issues on appeal based on non-compliance with Pa.R.A.P. 1925, it is the

trial court’s order that triggers an appellant’s obligation[.] ... [T]herefore, we

look first to the language of that order.”) (cleaned up).

It is well-settled that “issues not raised in a Rule 1925(b) statement are

deemed waived.” Ruff v. York Hosp., 257 A.3d 43, 52 (Pa. Super. 2021)

(citing U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund

v. Hua, 193 A.3d 994, 997 (Pa. Super. 2018); Pa.R.A.P. 1925(b)(4)(vii)).

Thus, Appellant waived his first issue invoking Ajaj. We nonetheless review

Appellant’s remaining issues mindful of Ajaj’s significance.

In Ajaj, the Pennsylvania Supreme Court explained:

While this Court has previously weighed in on the standard of

review applicable to a prosecutor’s disapproval decision under

Rule 506(B), we have not offered any definitive guidance by

majority consensus on the subject—except to conclude that “a

[court of common pleas] should not interfere with a prosecutor’s

policy-based decision to disapprove a private [criminal] complaint

absent a showing of bad faith, fraud, or unconstitutionality.”

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Thus, we begin by establishing the standard of review that a court

of common pleas must apply when reviewing a prosecutor’s

disapproval determination. We hold that, when reviewing a

prosecutor’s decision disapproving a private criminal complaint

under Rule 506, a court of common pleas may only overturn that

decision if the private complainant demonstrates that the

disapproval decision amounted to bad faith, occurred due to fraud,

or was unconstitutional. In so holding, we denounce the prior

rubric, where the applicable standard of review depended on the

asserted basis for the prosecutor’s disapproval decision. In

addition, for purposes of determining whether the prosecutor’s

disapproval decision amounted to bad faith, we … hold that bad

faith is demonstrated when the prosecutor acted with a

fraudulent, dishonest, or corrupt purpose. We note that the

adoption of the foregoing standard of review ensures that a court

of common pleas will afford proper deference to the discretionary

decision of the prosecutor—a member of the executive branch of

the Commonwealth’s government.

Ajaj, 288 A.3d at 109–10 (citations omitted).

The Supreme Court proceeded to review the merits of the parties’

dispute in Ajaj. The Court recognized “the trial court could not have applied

th[e newly-created] standard of review when it reviewed and overturned the

[District Attorney’s (DA)] decision disapproving the Complaint.” Id. at 110.

“In the interests of judicial economy, however, rather than remanding the

matter to the trial court … to apply the above-stated standard of review,” the

Supreme Court reviewed “the DA’s disapproval decision to determine whether

such decision amounted to bad faith, occurred due to fraud, or was

unconstitutional.” Id.

Like the Supreme Court in Ajaj, the trial court in Appellant’s case

“appl[ied] the current standard of review, [and in its opinion,] note[d] that

Appellant also failed to demonstrate that the denial of the proposed complaint

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‘amounted to bad faith, occurred due to fraud, or was unconstitutional.’” TCO

at 8.

Mindful of the foregoing, we consider Appellant’s two remaining issues.

The issues are related; Appellant impugns the DA’s determination that his

complaint failed to establish probable cause; the trial court’s failure to view

Appellant’s video recording; and the trial court’s conclusion that the complaint

lacked a “prima facie showing.” Appellant’s Brief at 8-9. Appellant claims:

[T]he [DA’s] disapproval notice and the trial court’s hearing did

not meet the basic requirements of constitutional due process.

[Appellant] was not given a fair opportunity to understand the

claims against him. Neither the [DA’s] notice nor argument before

the court adequately informed him that the prima facie showing

of his complaint was at issue.

The [DA] was required to notify [Appellant] of the “reasons” for

his disapproval. Pa.R.Crim.P. 506(B). It notified him of only one

reason—insufficient probable cause—which [Appellant] appealed.

At the hearing, the [DA] continued to assert that one evidentiary

basis for disapproval, and [Appellant] attempted to contest that

reason by offering evidence to show the adequacy of his probable

cause. The [c]ourt refused to accept that evidence.

Instead, the [c]ourt ruled on a different issue—one that was not

directly raised by the [DA] in argument or noticed in its

disapproval: the prima facie showing of [Appellant’s] complaint.

Every litigant is entitled to a reasonable opportunity to know the

claims of his opponent, and [Appellant] was denied this right. It

was [Appellant’s] (and seemingly the [DA’s]) reasonable belief

that this issue had been previously settled by [the court], and was

not at issue in the hearing.

At no point did either the trial court or the [DA] signal that the

question of his prima facie showing was at issue in the hearing.

However, this is the sole basis for the trial court’s denial of

[Appellant’s] appeal.

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As [Appellant] was not given proper notice prior to – or even

during – the hearing of the claims actually at issue, this amounts

to a violation of his constitutional due process rights, and

therefore the [c]ourt’s decision should be vacated.

Id.

This argument is flawed. Appellant cites no authority for his claim that

he was denied due process because the DA and trial court failed to “adequately

inform him that the prima facie showing of his complaint was at issue.” Id.;

see also Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa.

Super. 2015) (en banc) (“When an appellant cites no authority supporting an

argument, this Court is inclined to believe there is none.”).4

The trial court explained that the Commonwealth rejected Appellant’s

complaint “because of the lack of sufficient evidence or probable cause to

make out a prima faci[e] case against the deputies.” TCO at 8. A private

criminal complaint must “set forth a prima facie case of criminal conduct.”

See Ajaj, 288 A.3d at 97 (citation omitted). A prosecutor is duty bound to

bring only those cases that are appropriate for prosecution. In re Miles, 170

A.3d 530, 535 (Pa. Super. 2017) (citation omitted). Further, if a prosecutor

“has decided that criminal charges were not warranted[, t]he judicial branch

must tread lightly when interfering with that judgment call.” Commonwealth

v. Harrison, --- A.3d ----, 2023 PA Super 244 (filed Nov. 28, 2023).

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4 Noting it had advised Appellant he could have a continuance “to obtain

counsel,” the trial court observed that his “claim now that [he] was somehow

disenfranchised because he was acting pro se is disingenuous.” TCO at 9.

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Appellant accused the sheriff deputies of official oppression, which

occurs when:

A person acting or purporting to act in an official capacity or taking

advantage of such actual or purported capacity commits a

misdemeanor of the second degree if, knowing that his conduct is

illegal, he:

(1) subjects another to arrest, detention, search, seizure,

mistreatment, dispossession, assessment, lien or other

infringement of personal or property rights; or

(2) denies or impedes another in the exercise or enjoyment of any

right, privilege, power or immunity.

18 Pa.C.S. § 5301.

Appellant alleged simply that the deputies “unlawfully removed me from

a public meeting in a public venue against my will.” Complaint, 10/26/22, at

2.5 Appellant composed his complaint on form AOPC 411A, which the Unified

Judicial System provides to the public. The form provides the following

prompt:

Set forth a summary of the facts sufficient to advise the defendant

of the nature of the offense charged. A citation to the statute

allegedly violated, without more, is not sufficient.

See Complaint, 10/26/22, at 2.

On November 7, 2022, Assistant District Attorney (ADA) Madeline

Troutman disapproved the complaint. Id. In the section designated for “the

Attorney for the Commonwealth,” she wrote “insufficient probable cause” as

the reason for disapproval. Id. She also memorialized the disapproval in a

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5 According to Appellant, he was “ejected … for having a firearm[.]”

Appellant’s Brief at 5.

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letter to Appellant which stated, the “private criminal complaint you have filed

has been disapproved by the [DA’s] Office due to insufficient probable cause.”

Correspondence, 11/9/22.

At the trial court hearing, Appellant acknowledged, “the [DA] states

there’s insufficient probable cause.” N.T., 12/20/22, at 5. Appellant stated:

I totally don’t understand this because I filled the form out that I

got from the [DA’s] website.

It’s filled out in its completion and it states -- the rules clearly

state that in a court case a summary of the facts to advise the

defendant of the nature of the offense charged, but neither the

evidence nor the statute allegedly violated need to be cited in the

complaint. However, a citation of the statute allegedly violated

by itself shall not be sufficient for compliance with this subsection.

Well, I have stated the section, the subsections that were violated.

Id. at 5-6.

ADA Kaitlyn Michalek appeared on behalf of the Commonwealth. She

stated,

the crime that is alleged … is official oppression[,] which reads,

plainly, that a person acting in official capacity commits the

misdemeanor of the second degree if[,] knowing his conduct is

illegal[,] he subjects another to arrest, detention, et cetera or

denies a person their rights.

As far as [Appellant’s] submission goes, there is nothing to allege

that the deputies – Corporal Lawson or Deputy Schuibbeo – knew

that their actions were illegal or even that their actions were

illegal.

It’s only two sentences that says - makes the statement that

[Appellant] was unlawfully removed without any description of the

scenario of the situation or what occurred in order to obtain the

removal itself.

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So we denied, based on the lack of probable cause and sufficient

facts to be able to establish a crime was even committed at all.

Id. at 7-8.

Appellant then addressed the trial court:

Now, there’s a full five minute video of this event, which I am

confident that the [DA’s] Office and those deputies have seen, and

it states I have told them throughout that video, your Honor, from

the second they approached me to the second they ejected me

from the library property that they were violating my civil rights

and that they were waiving their right to qualified immunity by

violating my civil rights.

I notified Corporal Lawson, who can be viewed in the video with

me telling him, you know, that he was going to lose his qualified

immunity and that I could sue him personally for what he was

doing.

Id. at 8. Appellant offered the trial court a thumb drive of the video, and

advised “it’s available on the internet for your perusal.” Id. at 9. At that

point, ADA Michalek stated:

I would just like to put on the record that I … have not seen any

video. So this denial was not based on a video or anything of the

sort.

The only thing that we look at which is what we are required to

look at[,] the factual averments that we received from the private

criminal complaint. And here there were no – it’s not a matter of

whether he submitted evidence. It’s a matter of whether or not

there w[ere] any facts within this private criminal complaint to

substantiate the crime that he’s alleging occurred[,] and in the

scenario that if his civil rights may have been violated, that’s not

necessarily a criminal act. I don’t have information on that, but

as far as the crime that was accused and the facts that were

alleged within the private criminal complaint[, that] is what we

based [the disapproval] on and that’s all we based [the

disapproval] on.

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So given the circumstance and what we were provided there would

be no way for us to approve this based on the standard that a

private criminal complaint needs.

Id.

The trial court did not view the video, and asked ADA Michalek if the

Commonwealth was asserting that “what’s alleged doesn’t fit the crime of

official oppression?” Id. at 10. ADA Michalek answered:

Yes, your Honor, absolutely. I mean, the facts that we have

available to us were very minimal. Like I said, none of us have

seen the video. I certainly have not. So I can certainly speak for

myself.

I ha[d] no knowledge of what [Appellant] is referring to in a video

until this very moment. So based on the crime itself that’s alleged

and the facts that are available to us is why we denied it, and that

[] a crime [did] not occur[]. That was assessed … by two different

[ADAs].

Id.

The trial court took the matter under advisement before issuing its order

denying Appellant’s petition for review on December 22, 2022. Our review

reveals no basis for disturbing the order.

Appellant did not demonstrate that the DA’s decision to disapprove his

complaint “amounted to bad faith, occurred due to fraud, or was

unconstitutional.” Ajaj, 288 A.3d at 110. Conversely, the record supports

the trial court’s conclusion that “the complaint did not contain enough material

facts to establish a case of official oppression as drafted.” TCO at 4-5; id. at

6 (finding “Appellant failed to set forth sufficient probable cause in the

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Complaint to make out a prima facie allegation of Official Oppression against

the two deputies”).

The trial court explained:

In the instant matter, the complaint merely alleges that on May

26, 2022, the aforementioned deputies “unlawfully removed me

from a public meeting in a public venue against my will.” Compl.

¶ 2, 10/22/2022. Appellant asserted no other written facts in the

Complaint to support his allegations, not even the name of the

public meeting. Simply stated, the allegations as set forth in the

proposed Complaint just do not set out a prima faci[e] case.

Taking it a step further now as a result of the recent holding in In

re Ajaj, supra, and applying the current standard of review, it is

important to note that Appellant also failed to demonstrate that

the denial of the proposed complaint “amounted to bad faith,

occurred due to fraud, or was unconstitutional.”

Rather[,] in the instant matter, the record reflects that the sole

reason the Commonwealth rejected the complaint was because of

the lack of sufficient evidence or probable cause to make out a

prima faci[e] case against the deputies. Appellant did not allege

sufficient facts to demonstrate that the two deputies acted in a

knowingly illegal manner—a critical element of the alleged crime.

Further, Appellant did not allege any facts to demonstrate that the

Commonwealth acted in bad faith when disapproving the

Appellant’s Complaint. Accordingly, the Commonwealth

appropriately rejected the Complaint.

Id. at 8.

The trial court afforded “proper deference to the discretionary decision

of the prosecutor.” Ajaj, 288 A.3d at 109. Appellant’s issues do not merit

relief.

Order affirmed.

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Date: 2/27/2024

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