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PISCANIO APPEAL (09/22/75)

decided: September 22, 1975.

PISCANIO APPEAL


Appeal from order of Court of Common Pleas of Northampton County, Oct. T., 1974, No. 3, in re: Petition of Michael Piscanio.

COUNSEL

Dean L. Foote, for appellant.

Richard J. Shiroff, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Van der Voort, J., concurs in the result.

Author: Jacobs

[ 235 Pa. Super. Page 491]

Petitioner appeals to this Court seeking to reinstate his private criminal complaints which, after having been approved at first by an assistant district attorney, were finally disapproved by the district attorney of Northampton County. We hold that a district attorney, having the power to approve or disapprove a private criminal complaint in the first instance, is empowered to withdraw his initial approval when such action is indicated by the circumstances, and we therefore will affirm the order below.

On August 31, 1974, appellant executed a number of private criminal complaints charging several named individuals and a John Doe with various offenses including burglary, criminal trespass, criminal mischief and other related crimes.*fn1 These complaints were approved by an assistant district attorney of Northampton County pursuant to Pa. R. Crim. P. 133(B)*fn2 and transmitted to a district magistrate on the same date. The district magistrate certified his belief that the affiant was responsible and that probable cause for the issuance of process existed. On September 20, 1974, some additional private complaints charging another individual with some of the same offenses were executed by appellant. The district magistrate endorsed the complaints without obtaining the approval of the district attorney as is required by Pa. R. Crim. P. 133(B) and 134.

On October 2, 1974, the district attorney informed the district magistrate by letter that he was disapproving the first group of complaints which had been executed and

[ 235 Pa. Super. Page 492]

    approved by the assistant district attorney on August 31. The letter disclosed that the district attorney was disapproving the complaints due to a lack of probable cause and legal basis for the prosecution. The second group of complaints executed on September 20 without approval by the district attorney's office were disapproved by the district attorney on October 15, 1974.

Seeking reinstatement of his complaints, appellant, without counsel, addressed his grievance to the court of common pleas by means of a letter with an attached "affidavit" in which he enumerated allegations of fact and conclusions of law. The thrust of appellant's argument in this communication was that he, as private prosecutor, had complied with all the requirements under the rules for bringing a criminal complaint, that the district attorney had not conformed to the requirements of the rules when he disapproved the complaints in this instance, that the district attorney's action on the complaints was therefore defective and the appellant was entitled to reinstatement of the complaints. In response to this, the lower court on October 18, 1974, issued a rule on the district attorney to show cause why the private criminal complaints should not be reinstated. The district attorney responded with an answer alleging that his office had conducted an investigation of the charges set forth in the complaints as a result of which he had determined that the complaints should be disapproved. It was alleged in the district attorney's answer that the appellant was thought to have committed possible acts of fraud and deception against the defendants named in the complaints, which acts could have justified the defendants' actions. Attached to the answer was a summary of the results of the investigation. Taking into consideration the district attorney's reasons for disapproving the complaints, the rule was discharged, effectively precluding the reinstatement of appellant's complaints.

Appellant then moved the lower court for a hearing on the matter alleging bad faith on ...


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