September 27, 2013
COMMONWEALTH OF PENNSYLVANIA Appellee
SATISH JINDEL Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
SATISH JINDEL Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
SATISH JINDEL Appellant
Appeal from the Order July 2, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-MD-0002233-2012, 02-MD-0002234-2012, 02-MD-0002235-2012
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
Satish Jindel ("Jindel") appeals, pro se, from the orders of the Court of Common Pleas of Allegheny County affirming the Allegheny County District Attorney's ("DA") decision to disapprove Jindel's three private criminal complaints. After our review, we affirm the trial court's order.
Jindel filed three private criminal complaints, one against Paul J. Leventon, Esquire, one against Meri Iannetti, Esquire, and one against Marsha Jindel. Satish and Marsha Jindel were married in 1994, separated in 2007, and divorced in 2010. Marsha was the plaintiff in the underlying contentious divorce/custody/support actions, and Attorney Iannetti and Attorney Leventon represented Marsha in those matters (collectively, "defendants").
In the private criminal complaints, Jindel alleged the named defendants committed perjury in the family court proceedings. Assistant District Attorney Simquita Bridges reviewed the complaints and found each insufficient to support bringing perjury charges. The DA disapproved the complaints, stating it was not the DA's office policy to pursue criminal complaints lacking in prosecutorial merit.
Jindel filed motions for reconsideration in each case. The Honorable Edward J. Borkowsi determined the DA exercised proper use of its discretion and denied the motions for reconsideration on July 2, 2012. Jindel appealed; he raises ten issues for our review:
1. Did the court abuse its discretion by accepting the DA's refusal to file charges when the DA had failed to investigate the complaints to enable the exercise of discretion?
2. Did the court commit an error of law in applying Rule 506 and in providing legal advice to the DA by asking if denial was a hybrid one, knowing that the complaint was deni[ed] on evidentiary concerns?
3. Did the court abuse its discretion and commit an error of law by accepting the DA citation of Wilson, 879 A.2d 199 [Pa. Super. 2005] since the DA had failed to order investigation of Appellant's prima facie case prior to denying the complaint?
4. Did the court commit an error of law and abuse of discretion in accepting the DA's position that Petitioner had an adequate civil remedy?
5. Did the court abuse its discretion by accepting the DA's discretion to deny the complaints without requiring the DA to reply to Petitioner's response that included numerous documents including complete transcripts?
6. Did the court abuse its discretion when it conveyed its intent to deny the petitions even before the DA had filed its response at the May 29, 2012 hearing?
7. Did the court abuse its discretion by failing to require attorneys from the DA's Office to respond to Petitioner's allegations that the DA was denying the complaints against the attorneys for fear of being "ostracized" by the legal community?
8. Did the court discriminate against Petitioner for being pro se?
9. Did the court err and abuse its discretion by not issuing an order from the May 29, 2012 hearing, which was extended from May 22, 2012 at the DA's request?
10. Did the court abuse its discretion by failing to sanction [the] court reporter for failure to file transcript in a timely manner?
Jindel's first seven claims essentially challenge the DA's discretion in disapproving the private criminal complaints.
A private criminal complainant may seek judicial review of the denial of his complaint by the district attorney. See Pa.R.Crim.P. 106. 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 is based on a legal evaluation of the evidence, the trial court undertakes a de novo review of the matter. Commonwealth v. Cooper, 710 A.2d 76 (Pa. Super. 1998). Where the district attorney bases disapproval on policy considerations, the trial court accords deference to the decision and will not interfere with it in the absence of bad faith, fraud or unconstitutionality. Id. at 79. In the event the district attorney offers a hybrid of legal and policy reasons for disapproval, deference to the district attorney's decision, rather than de novo review, is the appropriate standard. Id. at 80. On appeal, this court is limited to determining whether the trial court abused its discretion. Id. See In re Private Criminal Complaints of Rafferty, 969 A.2d 578 (Pa. Super. 2009); see also Commonwealth v. Michaliga, 947 A.2d 786 (Pa. Super. 2008) (when district attorney disapproves private criminal complaint on wholly policy considerations or on hybrid of legal and policy considerations, trial court's standard of review of district attorney's decision is abuse of discretion; thereafter, appellate court will review trial court's decision for abuse of discretion).
Here, the DA stated it was not the policy of the office to pursue criminal complaints that are devoid of merit; these decisions were based on review of the allegations and sufficiency of the complaints. In light of the hybrid of legal and policy reasons, deference to DA's decision, rather than de novo review, is the appropriate standard. Cooper, supra. Thus, Jindel had to demonstrate to the trial court that the district attorney's decision amounted to bad faith, fraud, or unconstitutionality. Absent such evidence, the trial court cannot presume to supervise the district attorney's exercise of prosecutorial discretion and should leave the district attorney's decision undisturbed. See Commonwealth v. Michaliga, 947 A.2d 786, 791–92 (Pa. Super. 2008). The district attorney's decision not to prosecute a private criminal complaint for reasons including policy matters carries a presumption of good faith and soundness. In re Private Criminal Complaints of Rafferty, 969 A.2d 578 (Pa. Super. 2009). Further, the DA is duty bound to bring only those cases that are appropriate for prosecution See Braman v. Corbett, 19 A.3d 1151 (Pa. Super. 2011).
In the first complaint, Jindel avers that Attorney Iannetti committed perjury while she was attempting to introduce a police report. A person commits perjury if in any official proceeding she makes a false statement under oath affirmation when the statement is material and she does not believe it to be true. See 18 Pa.C.S.A. § 4902(a). At the family court/PFA hearing, Attorney Iannetti stated that the police officer was sick and unavailable to testify. As such, she attempted to introduce that police officer's report as an exhibit. See N.T. Hearing, 1/8/2008, at 31-32. Jindel attempts to prove that the officer, in fact, was not sick that day. Jindel misunderstands the court's question to counsel -- whether she was offering the report "for the truth" of the matter asserted -- when in fact she was attempting to introduce the police report as an exhibit. Id. In order for Jindel to succeed on the merits, he would have to be able to assert that Attorney Iannetti, knowing that the police officer was not ill, asserted that fact to intentionally perpetrate a fraud upon the court. Jindel has failed to do that. As the DA points out, Jindel's complaint failed to make out a prima facie case, and as a policy matter, the Commonwealth "does not proceed on perjury cases that lack prosecutorial merit." See Response to Motion for Reconsideration, 6/8/2012, at 2-3.
With respect to the complaint against Attorney Leventon, Jindel averred in his complaint that Attorney Leventon testified falsely on four issues: (1) that the Pennsylvania Supreme Court had denied Jindel's petition for allowance of appeal; (2) that the counsel fee awarded in November 2009 did not include forensic expert fees; (3) that Jindel had not provided full and complete copies of filed 2008 tax returns to Attorney Leventon; and (4) that Attorney Leventon did not have personal knowledge that his co-counsel, Attorney Iannetti, had an ex parte communication with the judge. After our review of Jindel's arguments and the record before us, we can find no support for Jindel's claims that the previously mentioned statements presented a prima facie case of perjury.
First, Jindel points to Attorney Leventon's statement at the September 7, 2011 hearing, citing to page 4 of Ex. P2. Nothing on that page refers to the denial of a petition for allowance of appeal. With respect to his second claim regarding expert fees, Jindel refers to Ex. P3. Our review of that transcript shows two brief underlined portions of text, neither of which supports a claim of perjury. Next, Jindel refers to Attorney Leventon's statement on cross-examination at the September 7, 2011 hearing that Jindel did not provide complete copies of his 2008 tax returns. The relevant testimony of Attorney Leventon is as follows:
BY MR. JINDEL:
Q: Your brief speaks to '08, and that's why the Court opinion also refers to Father never produced – submitted copies of his corporate tax returns for '08. They got it from your brief.
A: No. Excuse me, sir. The Superior Court would have gotten it from the submitted record in the case, not from my brief. A brief is a document of advocacy, and the Superior Court would never rely independently on a statement in a brief without checking the record. So what I'm representing to you, and this is in my – I don't know that this is from my brief because I can't see the context. Its only one page here . . . But I do say Despite same, appellant has never provided full and complete copies of the signed and filed tax returns for '08 or '09, nor true and correct copies of his corporate tax returns for calendar years '06-09. That's what you have highlighted for me to read, right?
Q: Yes. I'm talking about '08 personal tax return. You have testimony from Mr. Gilman – . . . where he testifies to having received 2008 personal tax return. That's part of court records.
A: I have no idea of the point – I mean do you want me to read what you've underlined here?
Q: Yeah . . .
A: Okay Mr. Gilman is prepared to testify as an expert witness that the only documents that Mr. Jindel provided pursuant to numerous court orders from Judge Hens-Greco were the parties' joint '06 tax return and then recently his individual '07 and individual '08 –
A: --income tax return. Okay?
Q: So that is part of a court record, of a transcript, that says 2008 was received. We have a letter from him that I just showed you, from Mr. – from Alpern and Rosenthal, stating on the front page that they received [the] 2008 tax return. You've got two documents, a letter from him and page from the transcript stating that 2008 tax returns were provide and received, and yet in your brief you make the claim that 2008 was never received.
N.T. Hearing/Counsel Fees, 9/7/2011, at 40-48 (emphasis added).
Jindel's attempt to aver perjury by Attorney Leventon by comparing a page from his brief to the testimony of another witness misses the mark. Arguments from a brief by counsel are not sworn testimony, and, in any event, there is no timeline relating the testimony that the tax returns were provided and received to the argument in the brief.
Next, Jindel claims Attorney Leventon perjured himself because he testified that he did not have personal knowledge that his co-counsel, Attorney Iannetti, had an ex parte communication with the judge. What Jindel leaves out, however, is Attorney Leventon's later testimony where, after Jindel shows him a document, he retracts that statement. In the document, Attorney Iannetti admits an ex parte communication that was made after Jindel had left the courtroom; that communication dealt with a date change, which ultimately was beneficial to Jindel as it extended the time within which he had to file responses, and of which Jindel was provided notice by the judge See id. at 53-55. As the DA points out, there is no indication that Attorney Leventon believed his statement was untrue. At the time he made it, he was either unaware of the scheduling change, or he had forgotten about it.
Finally, with respect to the third complaint against Marsha Jindel, Jindel averred that Marsha gave false testimony at the PFA hearing on December 4, 2008. Jindel claims Marshal stated that she had signed a final equitable distribution order by consent under duress, but at a later hearing in 2009, she stated that she signed it voluntarily. See N.T. PFA Hearing, 12/4/2008, at 6. Marsha testified that her attorney had informed her that Jindel would not consider a settlement unless there was concession on her part with respect to the PFA. At the PFA hearing, Marsha stated:
And the way I understood the final or distribution order, he was not willing at all to consider any kind of settlement or allow this process to go on without – without some sort of concession on my part in order to settle. . . . Some sort of concession on the PFA. . . . He would not even talk about it, and my lawyers pretty clear[ly] told me, you know, we really don't have a chance to settle this. He is not going to even cooperate with us unless you agree to drop this PFA.
N.T. PFA Hearing, 12/4/2008, at 6. Jindel provides a partial transcript from another hearing, with no date indicated, in which Marsha testifies that she entered into an equitable distribution order voluntarily. The fact that Marsha explained the negotiation process of the settlement does not equate to her testifying that she signed the order under duress. Jindel's claims amount to attempts to show perjury on minor points that were not material to the issues being litigated. The DA properly determined that the materiality requirement of perjury was lacking.
We summarily dismiss Jindel's last three issues, as he provides no meaningful argument on these claims. In his eighth issue, Jindel claims the court discriminated against him because he was pro se. There is nothing in the record to support this assertion. Further, there is no record support for Jindel's ninth issue that the court abused its discretion by indicating it was inclined to deny the petition before the DA had filed responses. And finally, the court did not abuse its discretion in failing to sanction the court reporter for "intentionally" failing to file transcripts within 21 days after payment. This claim, too, is unsupported by any meaningful argument.
The private criminal complainant has the burden to prove the district attorney abused its discretion. This burden is a heavy one, and Jindel has failed to meet it. See Rafferty, supra; see also Pa.R.Crim.P. 506. In the absence of evidence of discrimination or bad faith, the trial court must leave the prosecutor's discretion undisturbed. Michaliga, supra. After our review of the parties' briefs, the record, and the relevant law, we find no evidence of discrimination or bad faith. Jindel's claims that the trial court abused its discretion in affirming the DA's disapproval of the complaints are, therefore, meritless.
Orders affirmed. The Petition for Expedited Decision is denied as moot.