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In re Private Criminal Complaints of Rafferty

March 26, 2009

IN RE: PRIVATE CRIMINAL COMPLAINTS OF JOHN O'BRIEN RAFFERTY APPEAL OF: JOHN O'BRIEN RAFFERTY


Appeal from the Order Entered December 6, 2007 In the Court of Common Pleas of Dauphin County Criminal at No(s): CP-22-CR-0000839-2000.

The opinion of the court was delivered by: Stevens, J.

BEFORE: STEVENS, KLEIN, and KELLY, JJ.

¶ 1This is a pro se appeal from the December 6, 2007 order entered in the Court of Common Pleas of Dauphin County affirming the Pennsylvania Office of the Attorney General's denial of Appellant's three private criminal complaints. We affirm.

¶ 2 The relevant facts and procedural history are as follows: Appellant pled guilty to two counts of involuntary deviate sexual intercourse with a female under sixteen years of age in connection with incidents which occurred while Appellant was supervising a youth acting group. Appellant was paroled; however, his parole was revoked and, as to count 1, Appellant was sentenced to serve the remainder of his prison time, which was four months and twelve days, and as to count 2, Appellant was sentenced to four and one-half years to twelve years in prison, to be followed by ten years of probation. His sentences at count 1 and 2 are to run consecutively. This Court affirmed Appellant's judgment of sentence, which was imposed following the revocation of his parole. See Commonwealth v. Rafferty, 25 MDA 2003 (Pa.Super. filed Sept. 4, 2003) (unpublished memorandum).*fn1

¶ 3 On November 27, 2004, Appellant sent three private criminal complaints to the Pennsylvania State Police requesting that criminal charges be filed against Susan Rafferty, who is Appellant's sister; Lori Nohe, who was Appellant's parole officer; and Senior Deputy District Attorney Sean McCormack, who was the prosecuting attorney during Appellant's parole revocation hearing. Appellant alleged that, with regard to his parole revocation hearing, Ms. Rafferty committed perjury, criminal conspiracy, and obstruction of justice when she testified, Ms. Nohe committed perjury, subornation of perjury, and obstruction of justice when she testified, and Attorney McCormack committed subornation of perjury, judicial corruption, obstruction of justice, criminal conspiracy, and false imprisonment when he prosecuted the case.

¶ 4 The police forwarded the private criminal complaints to the Dauphin County District Attorney's Office, who in turn forwarded the complaints to the Attorney General's Office. In a letter dated May 25, 2005, the Attorney General's Office informed Appellant that it was assuming jurisdiction over the matter and the three private criminal complaints were being marked as "Denied, Lacks Prosecutorial Merit." Appellant subsequently filed a motion seeking review of the Attorney General's denial of the three private criminal complaints.*fn2 The Attorney General's Office filed a response to Appellant's motion, and Appellant filed a response thereto.

¶ 5 By order entered on December 6, 2007, the trial court affirmed the Attorney General's denial of Appellant's three private criminal complaints, and this timely appeal followed. By order entered on January 29, 2008, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the trial court filed a brief statement pursuant to Pa.R.A.P. 1925(a) indicating it was relying on the reasoning provided in its December 6, 2007 order.

¶ 6 Appellant's first contention is that the trial court erred when it concluded the Attorney General's decision not to prosecute was a "policy determination," and therefore, the trial court applied an incorrect standard of review. In essence, Appellant argues the Attorney General's denial of Appellant's complaints was based on a legal assessment of the evidence, and therefore, the trial court should have used a de novo standard of review. We disagree.

¶ 7 It is well-settled that, if the Commonwealth disapproves a private criminal complaint, the complainant can petition the Court of Common Pleas for review, and the trial court must first correctly identify the nature of the reasons given by the district attorney for denying the complaint. See In re Wilson, 879 A.2d 199 (Pa.Super. 2005) (en banc). "Where the district attorney's denial [of a private criminal complaint] is based on a legal evaluation of the evidence, the trial court undertakes a de novo review of the matter." Id. at 212 (quotation omitted).

[However,] [w]hen the district attorney disapproves a private criminal complaint on wholly policy considerations, or on a hybrid of legal and policy considerations, the trial court's standard of review of the district attorney's decision is abuse of discretion. This deferential standard recognizes the limitations on judicial power to interfere with the district attorney's discretion in these kinds of decisions..Thereafter, the appellate court will review the trial court's decision for an abuse of discretion, in keeping with the settled principles of appellate review of discretionary matters..The district attorney's decision not to prosecute a criminal complaint for reasons including policy matters carries a presumption of good faith and soundness..The complainant must create a record that demonstrates the contrary. Thus, the appropriate scope of review in policy-declination cases is limited to whether the trial court misapprehended or misinterpreted the district attorney's decision and/or, without a legitimate basis in the record, substituted its judgment for that of the district attorney. We will not disturb the trial court's decision unless the record contains no reasonable grounds for the court's decision, or the court relied on rules of law that were palpably wrong or inapplicable. Otherwise, the trial court's decision must stand, even if the appellate court would be inclined to decide the case differently.

***

The private criminal complainant has the burden to prove the district attorney abused his discretion, and that burden is a heavy one. In the Rule 506*fn3 petition for review, the private criminal complainant must demonstrate the district attorney's decision amounted to bad faith, fraud or unconstitutionality. The complainant must do more than merely assert the district attorney's decision is flawed in these regards. The complainant must show the facts of the case lead only to the conclusion that the district attorney's decision was patently discriminatory, arbitrary or pretextual, and therefore, not in the public interest.

In the absence of such evidence, the trial court cannot presume to supervise the district attorney's exercise of prosecutorial discretion, and should leave the ...


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