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PRIVATE CRIMINAL COMPLAINTS FILED BY DONALD CLEGG (05/12/86)

submitted: May 12, 1986.

IN RE PRIVATE CRIMINAL COMPLAINTS FILED BY DONALD CLEGG


Appeal from the Order Entered August 2, 1985 in the Court of Common Pleas of Perry County, Criminal Division, No. E33371, E33372, E33373, E33375, E33376

COUNSEL

Donald L. Clegg, in propria persona.

Beck, Cercone and Roberts, JJ. Beck, J., files a dissenting opinion.

Author: Cercone

[ 356 Pa. Super. Page 252]

Appellant, Donald Clegg, appeals from the trial court's order sustaining the disapproval by the district attorney of his private criminal complaints.

Appellant filed private criminal complaints against two district justices, two state troopers and the prosecuting witness for their alleged dereliction of duty pertaining to appellant's arraignment on an assault charge and his detainer by the State Board of Probation and Parole.*fn1 Appellant, a parolee, was arrested and incarcerated on an assault charge on January 15, 1985 but his preliminary hearing in the matter was not held until May 22, 1985. Prior to the hearing, on May 7, 1985, appellant filed a pro se Writ of Habeas Corpus challenging the legality of his confinement. At the preliminary hearing appellant argued that holding the hearing was violative of 42 Pa.C.S.A. § 6505*fn2 and the hearing should be postponed until disposition of his Writ of

[ 356 Pa. Super. Page 253]

Habeas Corpus. Appellant's argument was overruled. Subsequently, when, by court order dated May 24, 1985, appellant's Writ of Habeas Corpus was denied, appellant filed private criminal complaints against the troopers who filed the assault charge, the district justices involved in the proceedings and the prosecuting witness, alleging that the parties made a concerted effort to render his Writ of Habeas Corpus moot. The district attorney of Perry County returned appellant's complaint as "lacking prosecutorial merit." Appellant took an appeal to the Court of Common Pleas of Perry County which was denied for "no abuse of discretion on the part of the district attorney." This appeal followed.

The sole issue on appeal is whether the court below properly exercised its discretion when it decided that the prosecutor had not acted improperly in disapproving appellant's private criminal complaint.

We are presented with a case that has been submitted to the Superior Court for decision without the benefit of oral argument, nor an appellee brief or an opinion from the court below that addresses the merits of appellant's claim. Appellant's case arose before this court's decision in Commonwealth v. Muroski, 352 Pa. Superior Ct. 15, 506 A.2d 1312 (1986) (en banc) wherein the rule established in In re: Wood, 333 Pa. Superior Ct. 597, 482 A.2d 1033 (1984) that a private person who commences a matter by filing a private criminal complaint pursuant to Pa.R.Crim.P. 133 has a right of appeal from the order of a trial judge disapproving his complaint was repronounced by the court. In its opinion the court below stated the law of this Commonwealth prior to Muroski, that "the Commonwealth is clearly the party plaintiff in a criminal prosecution and the victim acts only as a prosecuting witness." Thus, the court concluded that appellant had no standing.

We think that the appellant has a right to a full discussion of the issue on appeal. This can only be accomplished with the benefit of the thorough analysis of the court below. Accordingly, we remand this case to the trial court

[ 356 Pa. Super. Page 254]

    for findings of fact as to whether the district attorney acted properly in disapproving appellant's private criminal complaint. See Commonwealth v. Mueller, 341 Pa. Superior Ct. 273, 491 A.2d 258 (1985); Pilon v. Pilon, 342 Pa. Superior Ct. 52, 492 A.2d 59 ...


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