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[U] Commonwealth v. Bogaty

Superior Court of Pennsylvania

February 20, 2014



Appeal from the Order February 25, 2013 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-MD-0000033-2013




Phillip Schneider appeals from the order affirming the disapproval of his private criminal complaint by the Office of the District Attorney of Mercer County ("District Attorney"). We affirm.

The pertinent facts and procedural background are as follows. Appellant was involved in a divorce proceeding that was heard before a master, Raymond Bogaty, Esquire. The hearings before Mr. Bogaty were not transcribed by an official court reporter. Rather, they were recorded manually on a tape recorder, and the tape recording was transcribed by a court reporter. There is no indication that Appellant objected to this manner of creating the record of the master's hearing or sought to have a court reporter present during the hearings.

Appellant thereafter sought approval from the District Attorney to file criminal charges against Mr. Bogaty. Appellant claimed that certain matters discussed at the master's hearings were not contained in the transcript and that Mr. Bogaty intentionally omitted them from that document. Specifically, Appellant alleged that the transcript was missing discussions about a sexually transmitted disease and a prenuptial agreement. Appellant's wife and his lawyer who represented him during the divorce proceeding both supported Appellant's position that the transcript did not reflect all the evidence taken during the master's proceedings. In support of his request for a private criminal complaint, Appellant presented the affidavit of his former lawyer, who stated:

I represented Phillip Schneider at a Master's Hearing on February 16, 2012. Master Raymond Bogaty and Attorney Shawn Olson were also present. At said hearing, Mr. Schneider claimed that his wife, Dianna Schneider had transmitted the herpes virus to him and presented a blood test showing that he had herpes. He was informed that this does not prove that he contracted herpes from his wife. Mr. Schneider then offered to pay his wife $20, 000.00 if she took a blood test to prove she did not have the virus. Attorney Olson declined this offer at that time.

Affidavit, Gregory D. Metrick, Esquire, 9/23/13, at 1.

Appellant's former wife filed an affidavit supporting that the conversation about the sexually transmitted disease was omitted from the transcript and attesting:

Also missing from the transcript is when my ex-husband's attorney, Greg Metrick asked him about the prenuptial agreement where we both stated that we did not want any money from each other- that we would each pay half of the attorney fee's in the event of a divorce. That is why I paid my attorney fees to Douglas, Joseph & Olson even though Phillip Schneider was ordered to pay them.

Affidavit, Dianna Schneider, 9/24/13, at 1.

Appellant sought to press charges against Mr. Bogaty for fraudulent destruction, removal or concealment of recordable instruments, 18 Pa.C.S. § 4103; tampering with records or identification, 18 Pa.C.S. § 4104; tampering with public records or information, 18 Pa.C.S. § 4911; and obstructing the administration of law or other governmental function, 18 Pa.C.S. § 5101.

Appellant averred that Mr. Bogaty was motivated to deliberately omit the two topics because Appellant had publicly picketed Mr. Bogaty's former law partner, Lewis McEwen. Additionally, Appellant averred that Mr. McEwen drafted the prenuptial agreement. Appellant did not claim that he objected to the appointment of Mr. Bogaty as the master for purposes of his divorce proceedings, nor did he set forth that he sought Mr. Bogaty's recusal and the appointment of another master. Moreover, there is no indication either that Appellant attempted to correct the record in the divorce proceedings through a petition in the court of common pleas, or that he filed exceptions to Mr. Bogaty's recommendations, which would then have been reviewed by the trial court.

The District Attorney, Robert G. Kochems, Esquire, disapproved the complaint by determining that, "on its face, it shows no facts that would justify the filing of criminal charges nor would such filing be in the interest of justice." Letter, 2/22/12 at 1 (Attachment to Petition for Review of Private Criminal Complaint, 2/20/13). On February 25, 2013, the trial court issued an order affirming the District Attorney's denial of Appellant's private criminal complaint. This timely appeal followed. Appellant raises the following issues for our review:

I. Did District Attorney Kochems improperly review and deny Mr. Schneider's private criminal complaint without conducting any investigation under Pennsylvania law when the affidavit alleged prima facie evidence and the proposed defendant was Attorney Kochems' former law partner?
II. Did the court err by dismissing Mr. Schneider's petition for review under Pennsylvania law when a prima facie showing was made, District Attorney Kochems did not investigate whatsoever, and the judge knew attorney Kochems, attorney Bogaty and Attorney [Lewis] McEwen [whom Appellant had picketed] were all former law partners?

Appellant's brief at 4.

Appellant thus contends that he presented a prima facie case of criminal conduct and that there was an abuse of discretion in that the District Attorney did not investigate the matter. To the extent that Appellant now suggests that there was a conflict of interest since Mr. Bogaty was Mr. Kochem's former law partner, we note that Appellant did not ask that the matter be referred to the Office of the Attorney General of Pennsylvania, which reviews private criminal complaints when the district attorney has a conflict of interest. See Braman v. Corbett, 19 A.3d 1151 (Pa.Super. 2011). Nor is there any indication that Appellant sought recusal by the District Attorney at any point during the trial proceedings. Thus, we will not address any purported bias by the District Attorney as a separate basis for reversal. Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").

The following principles are applicable:

It is settled that following the receipt of a petition to review the Commonwealth's decision to disapprove a private criminal complaint, the court must determine whether the Commonwealth's rationale for disapproving the private criminal complaint is for purely legal reasons or if it is based solely or in part on policy considerations. In re Wilson, 879 A.2d 199 (Pa.Super. 2005) (en banc). When the Commonwealth's disapproval is based wholly on legal considerations, the court employs a de novo review. Id. at 215, 218. Where the decision includes or is entirely based on policy considerations, the trial court reviews the Commonwealth's determination under an abuse of discretion standard. Id.

Braman v. Corbett, supra at 1157. Our standard of review is identical to that of the trial court. Commonwealth ex rel. Guarrasi v. Carroll, 979 A.2d 383 (Pa.Super. 2009).

A decision that the facts outlined do not justify the filing of criminal charges is a legal determination subject to de novo review. In re Ullman, 995 A.2d 1207 (Pa.Super. 2010). The District Attorney also offered a policy rationale for its refusal to criminally prosecute Mr. Bogaty-that such action would not serve the interest of justice. We nevertheless employ the de novo standard of review when that type of justification is proffered in conjunction with an assessment regarding the sufficiency of the evidence. Guarrasi, supra. We have noted that the district attorney is not required to conduct an investigation when the averments of criminal conduct in the complaint fail to present sufficient evidence of criminal activity. In re Ullman, supra. Additionally, a prosecutor has a duty to bring criminal charges only in those matters that are "appropriate for prosecution." Id. at 1214 (citation omitted).

The district attorney is permitted to exercise sound discretion to refrain from proceeding in a criminal case whenever he, in good faith, thinks that the prosecution would not serve the best interests of the state. This decision not to prosecute may be implemented by the district attorney's refusal to approve the private criminal complaint at the outset.

Id. (citation omitted).

In this case, Appellant averred that Mr. Bogaty intentionally altered a tape recording. The District Attorney decided not to prosecute based upon a determination that there was no evidence of a crime. The trial court agreed. It noted that Appellant falsely claimed that Mr. Bogaty acted contrary to normal procedures when he taped the proceedings. It observed that the policy, which the trial court helped to implement, in Mercer County "is that Master's hearings will be taken by a Court Reporter if the parties pay the applicable fee. If neither party wants to incur the cost of a court reporter, the testimony will be recorded on a tape recorder." Trial Court Opinion, 5/6/13, at 6 (footnote omitted). The trial court determined that there was no criminal intent involved herein. It reasoned that, to the extent that there actually was missing evidence in the transcript,

there is nothing to suggest Mr. Bogaty had anything to do with it. There are at least three plausible explanations. The first is that the tape recorder did not pick up the testimony. The second is that the testimony was not intelligible on the tape. The third is the court reporter who transcribed the tape missed it. To assert Mr. Bogaty acted criminally, given these possible explanations, is, at best disingenuous and, at worst, libelous.

Id. at 7.

We concur with the trial court's assessment. Our review of the record confirms that there is no evidence of criminal intent. This case is analogous to that of Guarrasi, supra. Therein, Guarrasi sought the filing of criminal charges against a detective involved in a criminal proceeding that resulted in Guarrasi's conviction. Guarrasi contended that the detective intentionally destroyed or tampered with a tape recording used during the prosecution by reducing the recording's length. The district attorney ascertained that the detective had indeed taped over a portion of the recordings but concluded that the action was inadvertent and that the detective did not have criminal intent when he performed the action. The district attorney refused to approve the private criminal complaint based on a lack of legal merit, and the trial court also concluded that there was no evidence of criminal intent. We reviewed the record affirmed, stating that the record did "not contain evidence that the detective had any criminal intent." Id. at 386.

Likewise herein, there is no proof that Mr. Bogaty acted with criminal intent with respect to the missing portions of the proceeding. We find significant that Appellant had adequate avenues to redress any deficiencies in the record in the divorce proceeding by either petitioning the trial court to correct the record or by filing exceptions and obtaining review by the court of common pleas. Pa.R.Civ.P. 1920.55-2.[1] Equally compelling is the fact that Mr. Bogaty's findings of fact and conclusions of law were entirely advisory and nonbinding on the court. Kohl v. Kohl, 564 A.2d 222, 224 (Pa.Super. 1989) ("master's report and recommendations are advisory only").

The District Attorney was not required to expend the taxpayer's money and commit his office's resources to prosecute this trivial matter involving two minor omissions from a hearing where there were innocent explanations for the mistakes. This conclusion is firmly supported by the fact that Appellant apparently did not avail himself of avenues of relief for the purported mistakes and that the master's findings of fact and conclusions of law were of no legally binding effect in the divorce proceeding. We therefore affirm. Guarrasi, supra; see also Braman, supra (affirming decision by attorney general not to prosecute matter based on conclusion that there was insufficient evidence that alleged crimes occurred); In re Ullman, supra (affirming finding that there was no proof a crime and that district attorney was not required to investigate matter after review of allegations in private criminal complaint).

Order affirmed.

Judgment Entered.

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