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

SUPERIOR COURT OF PENNSYLVANIA


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 (1985); Commonwealth v. Hicks, 328 Pa. Superior Ct. 233, 476 A.2d 978 (1984).

Order of the lower court is vacated and case is remanded. Jurisdiction is relinquished.

Disposition

Order of the lower court is vacated and case is remanded. Jurisdiction is relinquished.

BECK, Judge, dissenting:

I respectfully dissent from the majority's conclusion that the lower court's opinion is inadequate and that the case must be remanded for findings of fact.

The majority correctly states that the only issue before us 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." The majority declines to decide this issue. I would decide the issue and affirm.

Appellant's argument on appeal is vacuous, barely coherent, and utterly frivolous. His pro se brief purports to raise four issues, which collectively amount to two contentions. First, appellant Clegg alleges that the district justice violated 42 Pa.C.S.A. § 6505, Interference with Writ Prohibited, by holding a preliminary hearing in Clegg's assault case before the court of common pleas held a hearing on Clegg's application for a writ of habeas corpus. This claim is frivolous. Section 5605 concerns interference with a writ that has been issued. Since, at the time of the preliminary hearing, Clegg's application for a writ had not been acted on (and was ultimately denied), no writ had been issued and no violation of Section 6505 could have occurred.*fn1

[ 356 Pa. Super. Page 255]

Second, appellant alleges that someone changed his address on his assault arrest summons from his new address to his old address in order to make it appear that Clegg violated his parole by failing to notify his parole agent of his change of address. This claim, too, is vacuous. Although the Board of Probation and Parole did recommit Clegg to prison as "not amenable to parole supervision" on August 6, 1985, according to a document attached to Brief of Appellant as Exhibit 10, that document makes no reference to change of address. Instead, the document indicates that the recommitment is based on violations of parole conditions relating to the consumption of intoxicating beverages and aggressive behavior.

The common pleas court filed a 2-page Memorandum Opinion dated August 2, 1985, that noted that the court had received appellant's statements of the basis for his appeal; reviewed the procedure for prosecution of a private complaint; discussed the district attorney's discretion to disapprove such complaints; and concluded: "In the instant case . . . prosecution is at the District Attorney's discretion. There has been no abuse of discretion in this matter and this Court upholds the District Attorney's decision to disapprove this complaint."

In light of this Memorandum by the lower court, I am unable to agree with the majority's statement that "[w]e are presented with a case that has been submitted to the Superior Court for decision without the benefit of . . . an opinion from the court below that addresses the merits of appellant's claim." Although perhaps a fuller discussion of the merits of Clegg's private complaints would have been desirable, I do not agree that such discussion is necessary for this court to resolve the instant appeal. Appellant has made his argument in his briefs. The argument is frivolous on its face, as the district attorney and the court below no doubt concluded. I would find that, in such a clear case, a

[ 356 Pa. Super. Page 256]

    statement by the lower court that it has reviewed the complainant's arguments and found no abuse of discretion by the district attorney is an adequate resolution of the merits.*fn2

I also disagree with the majority's conclusion that the lower court resolved the case on a finding that appellant lacked standing. The majority focuses on the fact that the lower court stated that the Commonwealth is the party plaintiff in a criminal prosecution and the victim acts only as a prosecuting witness. The majority implies that the lower court must have concluded that Clegg lacked standing since his case arose prior to this court's decision in Commonwealth v. Muroski, 352 Pa. Super. 15, 506 A.2d 1312 (1986) (en banc), which "repronounced" the rule that a private person who filed a private criminal complaint has a right of appeal from a court order disapproving the complaint. Id., 352 Pa. Superior Ct. at 19, 506 A.2d at 1314. I find this conclusion puzzling. First, the lower court made its statement (regarding a victim's nonparty status) in the context of discussing the prosecutor's discretion to disapprove the complaint. Second, the trial court did not cite Muroski. Third, it is of no moment that Clegg's case arose before the Muroski decision since, as the majority itself points out, Muroski only repronounced a rule that was already in effect, having been established in In re Wood, 333 Pa. Super. 597, 482 A.2d 1033 (1984), well before Clegg's

[ 356 Pa. Super. Page 257]

    case arose. Fourth, the lower court made no reference to standing at all.*fn3

I would conclude that the lower court decided the case on its merits and that its opinion adequately addresses those merits and properly finds no abuse of discretion by the district attorney in disapproving appellant's private criminal complaint. Accordingly, I would affirm.


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