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filed: September 3, 1982.


No. 1999 Philadelphia, 1980, No. 2002 Philadelphia, 1980, APPEAL FROM THE ORDER OF JULY 28, 1980 IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, CRIMINAL, NOS. 490 and 491 OF 1980.


Gerald I. Roth, Allentown, for appellant.

William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.

Paul A. McGinley, Allentown, for Malloy and Michener, appellees.

Spaeth, Rowley and Cirillo, JJ.

Author: Cirillo

[ 304 Pa. Super. Page 299]

This case raises the novel issue of whether the victim of an alleged crime has standing to appeal, without the consent of the district attorney, a judicial determination dismissing a complaint for the prosecution's failure to establish a prima facie case. For the reasons which follow, we conclude that a victim/complainant lacks the authority and power to appeal and, therefore, this appeal must be quashed.

On February 20, 1980, private criminal complaints were executed by David Rosen of the appellant corporation, Paula-Arlen Vending Machine Co. (hereinafter "appellant"), against James P. Michener and Heidi Malloy (hereinafter "defendants"). Each of the defendants was charged with theft by unlawful taking or disposition,*fn1 theft by deception*fn2 and criminal conspiracy.*fn3 The complaints alleged that the defendants, former employees of appellant, drew and endorsed numerous checks on appellant's account without authority, in an attempt to deprive the company of monies.

[ 304 Pa. Super. Page 300]

On March 10, 1980, the District Attorney of Lehigh County approved the complaints.*fn4

The District Attorney allowed the appellant's private counsel to represent the Commonwealth at the preliminary hearing held on April 17, 1980. After that hearing, District Justice Ralph Beck determined that a prima facie case had been established on all charges against both defendants. On June 4, 1980, informations were filed against the defendants on the charges alleged in the complaints.

Petitions for writs of habeas corpus were filed on behalf of both defendants, on June 5, 1980, in the Lehigh County Court of Common Pleas. The writs alleged a failure by the Commonwealth to establish a prima facie case at the preliminary hearing. Writs of habeas corpus ad subjiciendum were issued and a hearing was scheduled for June 30, 1980. The hearing was conducted by the Honorable Maxwell E. Davison, who reviewed the preliminary hearing transcript*fn5 and the memorandum of law submitted by counsel.*fn6 On July 28, 1980, the complaints against both defendants were dismissed because of the prosecution's failure to prove a prima facie case.

On August 20, 1980,*fn7 appellant privately filed notices of appeal from the order dismissing the complaints, because the district attorney refused to appeal or authorize appellant to do so on behalf of the Commonwealth. On October 29, 1980, the district attorney filed a motion to quash the appeals, challenging appellant's standing to appeal. The motion was denied by our Court on February 10, 1981, ". . . without

[ 304 Pa. Super. Page 301]

    prejudice to the parties to address the standing issue in their briefs."

Inquiry into the power of a private citizen to appeal in a criminal prosecution without the authorization or approval of the district attorney involves a consideration of the significance of the distinction between public and private wrongs and the role of the district attorney in conducting criminal prosecutions.

It is a well-settled principle of law that a crime is an offense against the sovereignty, a wrong which the government deems injurious not only to the victim but to the public at large, and which it punishes through a judicial proceeding in the Commonwealth's name. 21 Am.Jur.2d 61, pp. 115-116. Though the same wrongful act may constitute both a crime and a tort, the tort is a private injury which is to be pursued by the injured party. Id., at § 2, p. 116. Criminal prosecutions are not to settle private grievances but are to rectify the injury done to the Commonwealth. The individual who is the victim of a crime only has recourse in a civil action for damages.*fn8

This special position which criminal prosecutions hold in our system has long been recognized by our courts, as evidenced in Hutchinson v. Bank of Wheeling, 41 Pa. 42, 45 (1861):

The private wrong was not merged in the public one, nor is the public prosecution intended to supersede the private action. Their purposes are entirely different. The person wronged is not chargeable with the conduct of the prosecution, and therefore not affected by an acquittal. Even a conviction and sentence do not discharge his right of action . . .

     and more recently in Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976):

One of the purposes of the criminal law is to punish offenses against the Commonwealth, as defined by the

[ 304 Pa. Super. Page 302]

Legislature, and it follows that, "[t]he criminal prosecution is for the injury done to the Commonwealth, and not for the injury done to the individual who may, if entitled, obtain redress through a civil action . . ."

See also, Commonwealth v. Lezinsky, 264 Pa. Super. 476, 400 A.2d 184 (1979).

Though a victim may seek a complaint against an alleged criminal, the district attorney is charged with the responsibility for the investigation and prosecution of any complaint which he approves. The Act of July 5, 1957, P.L. 484, No. 275, § 1; 16 P.S. § 1402 provides that the district attorney is the one ". . . who shall sign all bills of indictment and conduct in court all criminal and other prosecutions, in the name of the Commonwealth . . ." In the performance of his duties, the district attorney is a quasi-judicial officer with the duty to seek justice, not just convictions. Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978). He is obligated to perform this task intelligently and impartially. Commonwealth v. Wiggins, 239 Pa. Super. 256, 361 A.2d 750 (1976). The prosecutor is under no compulsion to prosecute every alleged offender, and the decision to prosecute or not to prosecute is a matter within his discretion. United States ex rel. Miller v. Rundle, 270 F.Supp. 55 (E.D.1967), subject to review by the court of common pleas.*fn9

The seminal case of In re Petition of Piscanio, 235 Pa. Super. 490, 344 A.2d 658 (1975) discussed the extent and scope of the district attorney's power to control criminal proceedings:

In considering the extent of the district attorney's power, it is important to bear in mind that the district attorney's function is to represent the Commonwealth in criminal prosecutions. In the capacity as the Commonwealth's attorney, the district attorney has traditionally fulfilled the obligation of investigation and prosecution of

[ 304 Pa. Super. Page 303]

    crime by initially evaluating complaints to determine whether a charge should be brought against a suspect. "A District Attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case."

Id., 235 Pa. Superior Ct. at 494, 344 A.2d at 660-661 (citations omitted) (emphasis added).

Thus, the district attorney is permitted to exercise sound discretion to refrain from proceeding in a criminal case whenever he, in good faith, thinks that the prosecution would not serve the best interests of the state. This decision not to prosecute may be implemented by the district attorney's refusal to approve the private criminal complaint at the outset, or, once the proceedings have commenced by withdrawing his approval and discontinuing the prosecution of the complaint.

Keeping the above principles of law in mind, we now turn to the central issue -- whether a victim/complainant has standing to appeal, without the consent of the district attorney, a judicial determination dismissing his complaint. Though our courts have not resolved this issue, the subject has been indirectly addressed.

In the recent case of Commonwealth v. Eisemann, 276 Pa. Super. 543, 419 A.2d 591 (1980), our Court assumed without

[ 304 Pa. Super. Page 304]

    deciding that appellate review was available to a private complainant/victim when the district attorney and Common Pleas judge refused to approve a private complaint.*fn10 That court went on to note:

Id., 276 Pa. Superior Ct. at 546, 419 A.2d at 592 (citations omitted).

The court continued, quoting with approval In re Petition of Piscanio:

Id., 276 Pa. Superior Ct. at 546, 419 A.2d at 592, (quoting) Piscanio, 235 Pa. Super. at 495-496, 344 A.2d at 661-662.

The earlier case of Commonwealth v. Baroni, 159 Pa. Super. 518, 49 A.2d 188 (1946), determined that appellate review was not available to a private prosecutor who appealed without the consent of the district attorney. In that case, private counsel attempted to appeal, without the approval or authorization of the district attorney, an order granting the Commonwealth non prosequi of certain charges against the defendant. Our Court held that private counsel, by assisting in a criminal prosecution, did not attain the status equivalent to that of a district attorney and, therefore,

[ 304 Pa. Super. Page 305]

    had no standing to bring the appeal. The court declared:

Id., 159 Pa. Superior Ct. at 520, 49 A.2d at 189-190 (emphasis added); see also, Commonwealth v. Peacock, 118 Pa. Super. 168, 179 A. 907 (1935); 24 C.J.S. Criminal Law § 1658, p. 1027.

We note that several jurisdictions have addressed this issue and support the proposition that the victim, as a non-party to a criminal prosecution, lacks standing to appeal.

The United States Supreme Court in Linda R.S. v. Richard D. & Texas, et al., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973) (citations omitted) stated:

In a case procedurally similar to the one which now confronts our Court, the Massachusetts Supreme Court found that the victim/complainant lacked standing to appeal a judicial determination which forecloses further prosecution of that alleged crime. That court held, in Manning v. Municipal Court, 372 Mass. 315, 361 N.E.2d 1274 (1977):

The victim of an alleged crime has no right to challenge a judicial determination which forecloses further prosecution of that alleged crime. Although a victim may seek a complaint against an alleged criminal, the prosecution of any complaint, once issued, is conducted in the interests of

[ 304 Pa. Super. Page 306]

    the Commonwealth and not on behalf of the alleged victim. Thus, if a judge declines to issue a complaint, determines that there is no probable cause, or finds a defendant not guilty, the complainant has no constitutional right to challenge that determination.

Wharton's Criminal Procedure, 12th Edition, Vol. IV, 6637, p. 321, states the fundamental rule which the above authorities rely on in denying a victim standing to appeal, "the right of appeal exists only by statute. Only a party to a criminal prosecution may appeal; since a witness is not a party, he has no standing to appeal." See also, 24 C.J.S. Criminal Law § 1658, p. 1027.

The above discussion clearly illustrates that the state, represented by the District Attorney, is the party plaintiff in a criminal prosecution; the victim/complainant is not considered a party to the proceeding. The victim acts only as a prosecuting witness.*fn11 Compare, Commonwealth v. Hayes, In re Petition of Pittsburgh Press, 489 Pa. 419, 414 A.2d 318, cert. denied, 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980) (victim/complainant was allowed as a party in a criminal prosecution only after the lower court granted his petition to intervene as such). Since appellant, as victim or witness, lacks "party" status in this criminal prosecution, he has no standing to appeal and therefore, this appeal must be quashed.*fn12

Appeal quashed.

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