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decided: November 1, 1989.


Appeal from the Order of the Superior Court, entered on November 9, 1987, at No. 1616 Pittsburgh, 1986 reversing the Order of the Court of Common Pleas of Allegheny County entered October 20, 1986, at No. Misc. 576 July 1986 (Criminal Division) 373 Pa. Super. 629 536 A.2d 821 (1987).


Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for appellant.

Ronald Eisenberg, Chief, Appeals Unit, George S. Leone, Asst. Dist. Atty., Dist. Atty's. Office of Philadelphia County, Philadelphia, amicus curiae, for Pennsylvania Dist. Attys. Ass'n.

John P. Gismondi, Gismondi & Margolis, Pittsburgh, for the private complainant, Laverda Hicks.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., files a concurring opinion. Papadakos, J., files a dissenting opinion in which McDermott, J., joins.

Author: Nix

[ 523 Pa. Page 204]


The subject of this discretionary appeal raised by the Commonwealth*fn1 is the Superior Court's order reversing the

[ 523 Pa. Page 205]

    lower court's disapproval of a private criminal complaint and directing that such a complaint be authorized pursuant to Pa.R.Crim.P. 133. The fundamental issue presented in this appeal is whether a decision not to prosecute on the ground of lack of evidence to establish a prima facie case, made by the office of the district attorney and confirmed by a judge of the court of common pleas, is reviewable by the Superior Court. The Commonwealth's framing of the issue has tended to obfuscate the relatively straight-forward question legitimately raised. Additionally, the Commonwealth has attempted to implicate constitutional principles and principles of law not presently germane to the instant inquiry. For the reasons that follow, we conclude that the Superior Court did have jurisdiction to hear the appeal pursuant to 42 Pa.C.S. § 742.*fn2 Moreover, that court correctly concluded that there was sufficient evidence to establish a prima facie case. Therefore, we affirm the order of the Superior Court.

This case arose out of an altercation between Paaron Jones and Officer Joseph E. Benz of the Pittsburgh Police Department. On June 29, 1981, both men were in the West Penn Memorial Hospital to visit patients. While still in the lobby, Officer Benz, who was not in uniform, entered the elevator with packages for his ailing wife. Paaron Jones approached the elevator to speak with another passenger whom he knew. At the time Mr. Jones was on crutches with a broken leg in a cast and smelled of alcohol. He held the elevator door open with one of the crutches and continued to converse with the passenger on the elevator. After some delay of the elevator an argument began between Jones and Benz, resulting in Jones striking Benz with his

[ 523 Pa. Page 206]

    crutch. After Benz had retrieved his packages and entered a second elevator, Jones again struck Benz, sending him to the floor. While Benz was still on the floor, Jones struck him across the back with a crutch. Realizing that the altercation was getting out of control, Benz pulled out his badge and firearm and identified himself as a police officer. At that time Jones attempted to flee through the front exit and Benz pursued him with his firearm drawn, stating that he was under arrest and he should lie face down on the floor. Instead, a scuffle again resulted. This time, however, Benz had his gun exposed. During the fight the gun discharged and Jones was struck in the head with the bullet. The emergency unit was able to save Jones only for him to live in a vegetative state for four years until July 25, 1985, when he died as a result of the gunshot wound.

After Jones's death an open inquest was conducted by the coroner, and the coroner's jury recommended that Benz be charged with voluntary manslaughter. Nevertheless, the District Attorney of Allegheny County did not file charges. The District Attorney decided that the eye-witness testimony was so disjointed as to make it inconclusive and instead relied on medical evidence of possible powder burns on the victim's head and scientific evidence concerning the retention of the shell of the bullet in the chamber of the gun. That evidence seemed to indicate that the victim was in close proximity to Benz when the gun discharged. That conclusion supported the claims made by Benz that the two men were wrestling over the weapon and that the shot was fired accidentally.

In September of 1985 the District Attorney's office sought review of its decision from the Office of the Attorney General. The District Attorney's office turned over all its files concerning the matter and fully cooperated with the investigation by the Attorney General. In February of 1986 that office concluded that no abuse of prosecutorial discretion had occurred; that a fair investigation had been conducted by that office; and that the filing of criminal

[ 523 Pa. Page 207]

    charges in this matter would have been inappropriate and unsupported ...

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