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[U] Commonwealth v. Bogaty

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RAYMOND BOGATY, APPEAL OF: PHILLIP SCHNEIDER, Appellant

NON-PRECEDENTIAL DECISION

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

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and WECHT, JJ.

MEMORANDUM

BOWES, J.

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 ...


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