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[U] In re Private Criminal Complaint against Perelman

Superior Court of Pennsylvania

March 7, 2014

IN RE: PRIVATE CRIMINAL COMPLAINT AGAINST JEFFREY E. PERELMAN AND JOHN T. BOXER, APPEAL OF: RAYMOND G. PERELMAN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on January 10, 2013 in the Court of Common Pleas of Montgomery County, Criminal Division, Nos. CP-46-MD-0002170-2012; CP-46-MD-0002171-2012.

Andrew Eckert, Esquire.

Anthony Brichta, Esquire.

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

MEMORANDUM

MUSMANNO, J.

In these consolidated appeals, Raymond G. Perelman ("Perelman") appeals from the trial court's January 10, 2013 Order denying his "Petition to Review Commonwealth's Decision" ("Petition for Review"), wherein he challenged the Montgomery County District Attorney's (hereinafter "the DA") refusal to prosecute Jeffrey E. Perelman ("Jeffrey") and John T. Boxer, Esquire ("Boxer"), and the DA's disapproval of the Private Criminal Complaint ("the Criminal Complaint") filed by Perelman. We affirm.

In its Opinion, the trial court set forth the relevant facts and procedural history underlying these appeals, which we adopt herein by reference. See Trial Court Opinion, 5/30/13, at 1-7.

On appeal, Perelman presents the following issues for our review:

a. Whether the trial court erred as a matter of law by applying the wrong standard of review based upon an incorrect determination that there were both legal and policy reasons relied upon by the [DA] in refusing to prosecute [] [Jeffrey] and Boxer[, ] and whether the trial court therefore erred in failing to conduct a de novo review of the Criminal Complaint[?]
b. Where the Criminal Complaint alleged a prima facie case against [Jeffrey and Boxer, ] and where the [DA] did not investigate the facts raised by the Complaint, did the trial court err as a matter of law in upholding the [DA's] decision not to prosecute?
c. Whether, in the alternative, the trial court erred as a matter of law in failing to find that the [DA's] decision to not prosecute was an abuse of discretion and was made in bad faith[?]

Brief for Appellant at 4.[1]

This Court has set forth the relevant legal principles concerning private criminal complaints as follows:

A district attorney ("D.A.") has the authority to approve or disapprove private criminal complaints. Pa.R.Crim.P. 506(A). If the D.A. decides to disapprove a private complaint, the D.A. must advise the affiant of the reasons for the disapproval. Id. at (B)(2). A disapproval may be based on purely legal grounds (e.g., the complaint does not state a prima facie case or, even if it does so, the D.A.'s investigation into the matter reveals there is no evidentiary merit to the complaint). In re Private Criminal Complaint of Wilson, 2005 PA.Super. 211, 879 A.2d 199, 211-12 (Pa.Super. 2005) [(en banc)]. Alternatively, the choice to disapprove a complaint may be a matter of policy (e.g., even if the case has legal merit, prosecution thereof would not serve the public interest). Id. at 212. Finally, the disapproval of a private complaint may be a hybrid of both legal and policy reasons. Id.
If a D.A. disapproves a private criminal complaint, the private affiant may appeal that disapproval to the Court of Common Pleas. Pa.R.Crim.P. 506(B)(2). In such an appeal, the court must first correctly identify the nature of the D.A.'s reason(s) for disapproving the complaint. Wilson, 879 A.2d at 212. If the D.A.'s decision was based on legal grounds, the court undertakes de novo review to determine whether the D.A. reached a proper legal conclusion. Id. However, if the D.A. based the disapproval on policy reasons, the court applies an abuse of discretion standard, deferring to the D.A.'s decision absent bad faith, fraud or unconstitutionality on the latter's part. Id. Lastly, if the D.A. relied on a hybrid of legal and policy bases, the court reviews the D.A.'s decision for an abuse of discretion. Id.
When this Court reviews a Common Pleas Court's decision concerning private criminal complaints, our review is congruent with the standard that was to be applied by the Common Pleas Court. Thus, where a D.A. denied a complaint on purely legal grounds[, ] and where the Common Pleas Court was therefore to undertake de novo review, we review the Common Pleas Court's decision for an error of law, thereby applying a de novo standard and a plenary scope of review. Id. at 214. However, where the D.A. denied the complaint on a policy basis or a hybrid of legal and policy bases, and where the Common Pleas Court was therefore to apply an abuse of discretion standard, we similarly review the court's decision for an abuse of discretion. Id. at 215. An abuse of discretion is not a mere error in judgment. Id. It is a decision based on bias, partiality, prejudice, ill will, manifest unreasonableness, or misapplication of law. Id.

Commonwealth ex rel. Guarrasi v. Carroll, 979 A.2d 383, 385-86 (Pa.Super. 2009) (citation omitted).

In his first issue, Perelman argues that "this Court should find that the trial court erred in finding that the [DA] had both legal and policy reasons to deny [the Criminal] Complaint[, and that] the trial court further erred in employing [an] abuse of discretion standard [of review]." Brief for Appellant at 16. Perelman cites to Commonwealth ex rel. Guarrasi, supra, pointing out that "[o]nly where [a] District Attorney's decision [regarding a private criminal complaint] is based entirely or partly on clear policy justifications does [a trial] court employ the abuse of discretion standard to review the District Attorney's determination not to prosecute." Brief for Appellant at 16 n.4. According to Perelman, the DA's Office offered no justification for its dismissal of the Criminal Complaint other than stating that Montgomery County "lack[ed] jurisdiction." Id. at 14 (quoting DA's Letter to Perelman, dated 8/24/12). Accordingly, Perelman asserts, because the DA's decision was based solely on a legal determination, and the DA failed to identify any policy reason for its refusal to prosecute, the trial court was required to undertake a de novo review of the Criminal Complaint, rather than reviewing the DA's decision for an abuse of discretion. Brief for Appellant at 14, 16. Perelman argues that the trial court's failure to conduct a de novo review violated his due process rights under the Fourteenth Amendment to the United States Constitution and constitutes reversible error. Id. at 16. We disagree.

The trial court addressed Perelman's claims in its Opinion and determined that the court did not err or abuse its discretion by failing to conduct a de novo review. See Trial Court Opinion, 5/30/13, at 12-13. We agree with the sound reasoning of the trial court, which is supported by the law and the record, and adopt it herein by reference. See id. Moreover, to the extent that Perelman argues that the trial court improperly determined that the DA presented valid legal and policy reasons for its disapproval of the Criminal Complaint, the trial court's Opinion contains well-reasoned analysis rejecting this claim. See id. at 10-12. The trial court's sound analysis is supported by the record, and we adopt it herein for the purpose of this appeal. See id. Accordingly, Perelman's first issue does not entitle him to relief.

Next, Perelman asserts that "[t]he trial court erred as a matter of law in denying [his] Petition for Review in light of the fact that the Criminal Complaint alleged a prima facie case against [Jeffrey and Boxer, ] and because the [DA] did not perform an appropriate investigation pursuant to Pa.R.Crim.P. 506." Brief for Appellant at 17 (capitalization omitted). According to Perelman, "the [DA] failed to investigate, whatsoever, the issues raised in the [Criminal] Complaint." Id. at 19. Perelman contends that

[a] reasonable investigation is always needed in order to determine whether the controversy is within the jurisdiction of the County and whether the petitioner has alleged sufficient evidence to establish a prima facie case. In the instant case, the [DA] disapproved of [the Criminal] Complaint merely two days after it was filed, [which is] compelling evidence [that] the [DA] failed to devote any, let alone, meaningful time to the investigation.

Id. at 20.

In its Opinion, the trial court addressed Perelman's claim that the DA failed to conduct an adequate investigation and determined that this claim lacked merit. See Trial Court Opinion, 5/30/13, at 13-14. Since our review discloses that the trial court's rationale is supported by the record and the law, we affirm on this basis with regard to Perelman's claim. See id.

Finally, Perelman argues that "[i]n the alternative, if this Court declines to employ the de novo review of [the Criminal] Complaint[, ] to which [Perelman] is constitutionally entitled, the trial court's [O]rder should nevertheless be reversed because the [DA's] refusal to prosecute amounted to an abuse of discretion" as it was made in bad faith. Brief for Appellant at 21. In support of this claim, Perelman contends as follows:

[T]he [] reasoning offered by the [DA for disapproving the Criminal Complaint] might be considered sufficient if [the DA] were to have established his opinion through a thorough investigation; however, no such investigation of the facts was ever conducted. [] Accordingly, such an unqualified opinion without the backing of an investigation is a "deviation from moral rectitude and sound thinking[.]"

Id. at 22-23 (quoting Commonwealth v. Brown, 708 A.2d 81, 85 (Pa. 1998) (defining "bad faith" as "the conscious doing of a wrong because of" a "deviation from moral rectitude or sound thinking." (citations omitted)).

The trial court addressed this issue in its Opinion and rejected Perelman's claim that the DA's denial of the Criminal Complaint was made in bad faith. See Trial Court Opinion, 5/30/13, at 15-16. Our review reveals that the trial court's analysis is supported by the record and we thus affirm on this basis concerning Perelman's final issue on appeal. See id.

Based upon the foregoing, we conclude that the trial court properly exercised its discretion in denying Perelman's Petition for Review and correctly refused to disturb the DA's disapproval of Perelman's Criminal Complaint.

Order affirmed.

Judgment Entered.

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CRIMINAL DIVISION

In Re: PRIVATE CRIMINAL COMPLAINT against Jeffrey E. Perelman and John T. Boxer

Appeal filed by Raymond G. Perelman

SUPERIOR COURT DOCKET NO. 435 EDA 2013

LOWER COURT DOCKET NO. CP-46-MD-0002170-2012 CP-46-MD-0002171-2012

OPINION

PATRICIA E. COONAHAN, J.

On August 22, 2012, Raymond Perelman filed a private criminal complaint with the Montgomery County District Attorney's Office where he requested that the Montgomery County District Attorney's Office prosecute Jeffrey E. Perelman and John T. Boxer, Esquire on charges of, Tampering With Records or Identification (18 Pa.C.S.A. § 4104) and Securing execution of Documents by Deception (18 Pa.C.S.A. § 4114). In the complaint, Raymond Perelman alleges that following the death of Ruth Perelman on July 31, 2011, Jeffrey E. Perelman, the named executor of Ms. Perelman's will, offered her will for probate in Philadelphia County on August 11, 2011. Within one week of offering the will for probate, Jeffrey Perelman determined that the decedent's permanent address listed on the death certificate in Palm Beach, Florida, was incorrect. Jeffrey Perelman and his counsel, John Boxer, contacted Joseph Levine, the funeral director of J. Levine and Son Memorial Chapel in Trevose, Pennsylvania, by telephone and advised him that the death certificate needed to be changed to reflect the decedent's correct primary domicile at the time of her death which was 1820 Rittenhouse Square, Philadelphia, Pennsylvania. Mr. Levine corrected the information and submitted an amended death certificate to the Pennsylvania Department of Health on September 14, 2011. Raymond Perelman has alleged that this conduct amounted to criminal activity pursuant to the above listed statutes.

On August 24, 2012, the Montgomery County District Attorney's Office denied Raymond Perelman's private criminal complaint. He was notified of the Commonwealth's denial by way of a "Notice and Record of Disapproval" form, and a letter from the Montgomery County District Attorney's Office which explained the reasons for the denial of the complaint against Jeffrey E. Perelman and John T. Boxer.

On September 12, 2012, Raymond Perelman filed a Petition to Review Commonwealth's Decision. On October 9, 2012, argument was held on the petition before the Honorable Kent H. Albright, Senior Judge (hereinafter the court)[1]. Raymond Perelman was represented by Andrew C. Eckert, Esquire, and the Commonwealth was represented by Assistant District Attorney Christopher M. Maloney, Esquire. At the October 9, 2012 argument, Mr. Eckert stated that: "...the investigation [by the Montgomery County District Attorney's Office] consisted of an officer speaking with the Philadelphia District Attorney and reviewing the complaint." N.T. October 9, 2012 at 3. Mr. Eckert also stated: "They said in a formal written response that it lacks jurisdiction. I'm not sure how they came to that determination...[t]here is an accompanying letter which does seem to indicate that they don't feel that they can secure a conviction and so it's a policy based denial." N.T. at 5. Mr. Eckert informed the court that there had been a previous review of this issue by the Philadelphia District Attorney's Office after Raymond Perelman filed a private criminal complaint with that office, prior to filing with the Montgomery County District Attorney's Office. That private criminal complaint was denied by the Philadelphia District Attorney's Office. Mr. Eckert stated that he, himself, did not file the private criminal complaint in Philadelphia, and he had no involvement with it, but it was his understanding that the private criminal complaint was denied on a policy based decision, because they could not "secure a conviction...there wasn't a lack of jurisdiction basis." N.T. at 7.

Mr. Maloney stated that the first step in the Commonwealth's analysis of the merits of a private criminal complaint is that the Commonwealth must determine if there is a prima facie case made out by the initial complaint. N.T. at 9. Mr. Maloney stated that Raymond Perelman's complaint failed to make out a prima facie case because Jeffrey Perelman was an executor of the estate of Ruth Perelman and John Boxer was his counsel. The Commonwealth concluded that there was nothing criminal in nature when Jeffrey Perelman notified the funeral director that the initial address given for Ruth Perelman was incorrect since Jeffrey Perelman was acting in his legitimate capacity as an appointed executor and in conjunction with the advice of his counsel. N.T. at 9-10. Mr. Maloney argued: "There is no evidence and there is nothing suggested in the complaint that there is any evidence that Mr. Perelman was not the executor...so he was acting in his legal capacity when he made this change." N.T. at 10.

Mr. Maloney stated that even if the court were to determine that there was a prima facie showing of criminal conduct in the initial complaint, Raymond Perelman's private criminal complaint was properly denied on jurisdictional grounds. N.T. at 11. Mr. Maloney stated: "There was nothing in the complaint to suggest any nexus between Montgomery County and this alleged crime, save for the fact that Jeffrey Perelman lives here." N.T. at 12-13. Mr. Maloney argued: "Simply because a particular individual lives within a particular venue does not mean that that is an appropriate venue to pursue any actions against that individual." N.T. at 13.

Mr. Maloney stated to the court that Pennsylvania Rule of Criminal Procedure 506 provides, in the event that the Commonwealth denies a private criminal complaint, then the Commonwealth must use a specific form^which is set forth in Rule 506. However, Mr. Maloney stated that: "[O]ur office has never been constrained by the limitations on that form...it doesn't allow for a lot of explanation as to the reasons for the Commonwealth's decisions in cases. So we always also attach a letter explaining in more detail the reasons for our decisions when we approve or deny a private criminal complaint." N.T. 13-14. He explained to the court that on the form the Commonwealth checked off "lack of jurisdiction" as a basis for the denial, but the Commonwealth also attached a letter to the form which gave the Commonwealth's policy reasons for why it did not find that Raymond Perelman's complaint was an appropriate matter to pursue in Montgomery County. N.T. at 14. Mr. Maloney stated: "I would respectfully submit to the court that, yes, under the 506 form that we provided to Mr.[Raymond] Perelman, we only cited a legal basis, but in the accompanying letter, we also laid out our policy decisions as to why we did not feel as though this was an appropriate private criminal complaint for us to pursue." NT. at 16.

Mr. Maloney explained to the court what steps were taken by the Montgomery County District Attorney's Office in reviewing Raymond Perelman's private criminal complaint which included Detective David Young contacting the Philadelphia District Attorney's Office. Mr. Maloney stated: "...the identical matters had been pursued in Philadelphia. Philadelphia had already done a thorough and exhaustive review of the facts of this case...Detective Young pursued the matter to the extent that he talked with the Chief County Detective over in Philadelphia." N.T. at 17. Detective Young learned that not only had the Philadelphia District Attorney's Office denied the complaint on its merits, but on April 15, 2012, Municipal Court President Judge Marsha Neifield affirmed the Philadelphia District Attorney's Office's denial of Raymond Perelman's complaint. N.T. at 18. There was no information in Raymond Perelman's Montgomery County complaint about the Philadelphia County complaint, and Mr. Maloney suggested that the reason Raymond Perelman did not include this information was because Raymond Perelman "did not want the Montgomery County District Attorney's Office to know that this had already been rejected by another district attorney's office and by a municipal court judge." N.T. at 18. Mr. Maloney stated: "the Commonwealth made its decision on a hybrid of policy and legal reasons..." N.T. at 18.

Mr. Eckert agreed with the trial court's statement that this was a hybrid situation in terms of the reasons given by the Commonwealth for the decision not to pursue Raymond Perelman's complaint. Mr. Eckert stated: "I don't disagree with that if ...that's their position." N.T. at 23. When asked by the court where the "bad faith" was on the part of the Commonwealth, Mr. Eckert replied: "...the fact that we have less than two days of investigation." N.T. at 23. When asked by the court where was the flagrant abuse of discretion on the part of the Montgomery County District Attorney's Office, Mr. Eckert replied: "the fact that there was no investigation done and the fact that the alleged defendant's counsel was copied on the correspondence two days after the complaint is filed...." N.T. at 24-25.

The court asked counsel if there was an alleged conspiracy in the matter. Mr. Eckert replied: "There is not a specific count of conspiracy, but there are allegations that these conversations and an agreement took place within Montgomery County." N.T. at 33. Previously during his argument, Mr. Maloney stated: "There was criminality implied that perhaps part of this conspiracy was formed in Montgomery County, but there was no specific allegation of a conspiracy that had been formed in Montgomery County..." N.T. at 27.

On January 10, 2013, Judge Albright denied Raymond Perelman's Petition to Review Commonwealth's Decision of August 24, 2012. On February 6, 2013, counsel for Raymond Perelman filed a Notice of Appeal to the Superior Court of Pennsylvania. On February 11, 2013, this matter was reassigned from Judge Albright to the undersigned. On February 25, 2013, this court ordered Raymond Perelman to file his Concise Statement of Matters Complained of on Appeal within twenty one days of the date of the order. On March 13, 2013, Raymond Perelman filed "Petitioner's Statement of Matters Complained of on Appeal" which states as follows:

"1. The Court abused its discretion or erred as a matter of law in determining that there were valid legal and policy reasons relied upon by the Commonwealth in support of its refusal to prosecute Messrs. Perelman and Boxer."
"2. The Court abused its discretion or erred as a matter of law in failing to conduct a de novo review of the Petition."
"3. The Court abused its discretion or erred as a matter of law in denying the Petition in light of the fact that the Commonwealth did not perform an appropriate investigation pursuant to Pa.R.Crim.P. 506."
"4. The Court abused its discretion or erred as a matter of law in determining that the Commonwealth's refusal to prosecute was made in the absence of any bad faith, fraud, arbitrariness, discrimination or pretense."

This opinion is filed pursuant to and is in compliance with Pa. R.A.P. 1925 (a). Pennsylvania Rule of Criminal Procedure 506, Approval of Private Complaints, states:

(A) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.
(B) If the attorney for the Commonwealth:
(1) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
(2) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter, the affiant may petition the court of common pleas for review of the decision.

A private criminal complaint must set forth a prima facie case of criminal conduct. In re Wilson, 2005 PA.Super. 211, 879 A.2d 199 (2005); Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993). The power to approve or disapprove a private criminal complaint is vested with the district attorney in the jurisdiction where the alleged criminal conduct occurred, and the district attorney is "permitted to exercise sound discretion to refrain from proceeding in a criminal case" if that district attorney, in good faith, thinks that the prosecution of the private criminal complaint would not "serve the best interests of the state". In re Wilson, 2005 PA.Super. 211 (2005); Commonwealth v. Brown, 550 Pa. 580, 708 A.2d 81 (1998); Hearn v. Myers, 699 A.2d 1265 (Pa. Super.1997).

When a trial court is asked by a petitioner to review the Commonwealth's disapproval of a private criminal complaint and the disapproval is based on a legal evaluation of the sufficiency of the complaint, the trial court must undertake a de novo review of the complaint in order to determine whether it establishes a prima facie cause of action. Braman v. Corbett, 2011 PA.Super. 97, 19 A.3d 1151 (2011); In re Ullman, 2010 PA.Super. 76, 995 A.2d 1207 (2010).

However, when a trial court is asked by a petitioner to review the Commonwealth's disapproval of a private criminal complaint and the disapproval is based on a policy determination that it would not be in the Commonwealth's best interests to prosecute, the trial court must defer to the Commonwealth's decision absent a gross abuse of the reviewing prosecutor's discretion. Braman v. Corbett. 2011 PA.Super. 97 (2011); In re Ullman, 2010 PA.Super. 76 (2010); In re Maloney, 431 Pa.Super. 321, 636 A.2d 671 (1994) (The Commonwealth's decision not to prosecute a private criminal complaint will not be disturbed absent a gross abuse of discretion). In the event that the Commonwealth offers a hybrid of legal and policy reasons for the disapproval of a private criminal complaint, deference to the Commonwealth's decision, rather than a de novo review, is also the appropriate standard to be utilized by the trial court. In re Private Complaint of Owens Against Coker, 2002 PA.Super. 332, 810 A.2d 172 (2002).

The trial court's determination as to whether the Commonwealth abused its discretion upon consideration of a private criminal complaint is dependent on the particular facts of the case and the Commonwealth's articulated reasons for either approving or disapproving the complaint. In re Wilson, 2005 PA Super. 211(2005). The complainant has the burden of proving that the Commonwealth's decision constituted "bad faith, fraud, or unconstitutionality", and the complainant must show that the facts contained in the complaint lead only to the conclusion that the Commonwealth's decision was "patently discriminatory, arbitrary or pretextual", and, therefore, not in the public interest. In re Wilson, 2005 PA.Super. 211(2005).

The trial court's decision reviewing the Commonwealth's approval or disapproval of a private criminal complaint will not be reversed in the absence of an abuse of discretion or an error of law. Commonwealth, v. Cooper, 710 A.2d 76 (Pa.Super. 1998); Commonwealth, v. Muroski, 352 Pa.Super. 15, 506 A.2d 1312 (1986). It must be shown that the trial court "misapprehended or misinterpreted" the Commonwealth's decision and/or "without legitimate basis on the record", substituted its own judgment for that of the Commonwealth, in re Wilson, 2005 PA.Super. 211 (2005).

The court addresses Raymond Perelman's issues as follows:

"1. The Court abused its discretion or erred as a matter of law in determining that there were valid legal and policy reasons relied upon by the Commonwealth in support of its refusal to prosecute Messrs. Perelman and Boxer."

As previously stated in this opinion, when the Commonwealth offers a hybrid of legal and policy reasons for the disapproval of a private criminal complaint, deference to the Commonwealth's decision, rather than a de novo review, is the appropriate standard to be utilized by the trial court. In re Private Complaint of Owens Against Coker, 2002 PA.Super. 332 (2002). Absent a gross abuse of discretion, the Commonwealth's decision not to prosecute the private criminal complaint shall not be disturbed by the reviewing trial court. On October 9, 2012, the court held argument on Raymond Perelman's Petition to Review Commonwealth's Decision. At the October 9, 2012 argument, Mr. Maloney set forth the Commonwealth's reasons for denying Raymond Perelman's private criminal complaint. These reasons, both legal and policy related, were lack of jurisdiction and nexus with Montgomery County, "that another prosecutor's office had already examined the requested complaint, which was based on the identical facts and had found those facts insufficient", that the Philadelphia denial had been reviewed and upheld by the President Judge of the Municipal Court of Philadelphia, Judge Neifield, and that Raymond Perelman failed to disclose any of these facts to the Montgomery County District Attorney's office when filing an identical complaint in Montgomery County. NT. at 16-17.

On January 10, 2013, the court issued an order denying Raymond Perelman's Petition to Review. In the January 10, 2013 order, Judge Albright stated that the court had determined that "the multiple legal and policy reasons relied upon by the Commonwealth in support of its refusal to prosecute Messrs. Perelman and Boxer were both credible and sound, thereby warranting this Court's deference to that decision, in the absence of any bad faith, fraud, arbitrariness, discrimination or pretense by the Commonwealth, which clearly were not shown in this case."

Absent a showing of bad faith, fraud, or unconstitutionality by the Commonwealth, the court was required to defer to the Commonwealth's decision and reasons for not prosecuting Raymond Perelman's private criminal complaint. Counsel for Raymond Perelman presented no credible evidence at the October 9, 2012 argument that the Commonwealth acted in bad faith, or with fraud, arbitrariness, discrimination, or pretense. Mr. Eckert argued that the fact that the Montgomery County District Attorney's Office spent only two days on the investigation of the complaint showed bad faith by the Commonwealth. N.T. at 23. However, when Raymond Perelman filed his private criminal complaint in Montgomery County, he did not disclose the fact that the Philadelphia District Attorney's Office had previously reviewed and denied Raymond Perelman's complaint due to a policy based decision that they could not secure a conviction based on the facts. Raymond Perelman also did not disclose the fact that a Municipal Court Judge had also denied the complaint thereafter. Once the Montgomery County District Attorney's Office learned of the prior denial by the Philadelphia District Attorney's Office, it began its review of Raymond Perelman's petition with that office. Mr. Maloney stated that "Philadelphia had already done a thorough and exhaustive review of the facts of this case...Detective Young pursued the matter there first." N.T. at 17. Mr. Maloney also stated that Detective Young "talked to the chief county detective over in Philadelphia. He got the background as to what investigation they had done." N.T. at 17. Raymond Perelman did not show that this method of investigation by the Commonwealth amounted to bad faith, especially in light of Raymond Perelman's failure to disclose the prior review by another District Attorney's Office of the merits of the complaint. Absent the required showing of bad faith, fraud, arbitrariness, discrimination or pretense by the Commonwealth, the court was required to defer to the Commonwealth's decision in denying Raymond Perelman's private criminal complaint, and, the court did not abuse its discretion in doing so.

"2. The Court abused its discretion or erred as a matter of law in failing to conduct a de novo review of the Petition."

The court was not required to conduct a de novo review of Raymond Perelman's petition because the Commonwealth offered a hybrid of legal and policy decisions for its decision not to prosecute his private criminal complaint. Pursuant to Pa.R.Crim.P. 506, the Commonwealth issued a form denying Raymond Perelman's private criminal complaint. On the form, the Commonwealth checked off "lack of jurisdiction" as one reason for denying the private criminal complaint. However, as stated by Mr. Maloney at the October 9, 2012 argument, the Montgomery County District Attorney's Office "has never been constrained by the limitations on that form...so we always also attach a letter explaining in more detail the reasons for our decision when we approve or deny a private criminal complaint." NT. at 14. In this case, the Commonwealth attached a letter to the form, and this letter set forth the policy reasons as to why the Commonwealth did not feel that Raymond Perelman's private criminal complaint was an appropriate matter to pursue in Montgomery County. Therefore, the Commonwealth provided Raymond Perelman with both legal and policy reasons for the denial of his complaint. As such, the court was not required to conduct a de novo review of the Commonwealth's decision, and, the court did not abuse its discretion by "failing" to conduct a de novo review of the petition rather than deferring to the Commonwealth's decision.

"3. The Court abused its discretion or erred as a matter of law in denying the Petition in light of the fact that the Commonwealth did not perform an appropriate investigation pursuant to Pa.R.Crim.P. 506."

Pennsylvania Rule of Criminal Procedure 506 does not include any language referring to what constitutes an investigation to be done by the Commonwealth or what constitutes an investigation as "appropriate". Therefore, if Raymond Perelman is arguing that the Commonwealth's investigation was inappropriate based on investigatory guidelines set forth pursuant to Pa.R.Crim.P.506, this argument is without merit.

At the October 9, 2012 argument, Mr. Maloney told the court what steps were taken as part of the investigation of Raymond Perelman's private criminal complaint. The investigation was not lengthy due to the fact that the Philadelphia District Attorney's Office had reviewed, investigated, and denied the same allegations made by Raymond Perelman in a complaint he previously filed with their office, a fact which Raymond Perelman failed to disclose to the Montgomery County District Attorney's Office. Mr. Maloney stated: "...yes, the decision came quickly, but that's because it was an easy one to make for the reasons that I detailed." N.T. at 19. The Montgomery County District Attorney's Office was under no statutory or legal duty to conduct an investigation that went beyond the one conducted by the Philadelphia District Attorney's Office, as long as Montgomery County did not act in bad faith, or with fraud, arbitrariness, discrimination, or pretense in its investigation. At the October 9, 2012 argument, Mr. Eckert gave his opinion that two days was insufficient time for the Commonwealth to conduct an investigation, however, the court is not bound by counsel's opinion as to what would have been an appropriate investigation. Simply by stating in the 1925(b) statement that the investigation was not appropriate does not make it so. Therefore, the court did not abuse its discretion or err as a matter of law in denying the petition "in light of the fact that the Commonwealth did not perform an appropriate investigation pursuant to Pa.R.Crim.P.506."

"4. The Court abused its discretion or erred as a matter of law in determining that the Commonwealth's refusal to prosecute was made in the absence of any bad faith, fraud, arbitrariness, discrimination or pretense."

At the October 9, 2012 argument, Raymond Perelman failed to show that the Commonwealth's decision to deny his private criminal complaint was made "in the absence of any bad faith, fraud, arbitrariness, discrimination or pretense." He did not present any evidence on this issue, and, only addressed this issue in response to a question posed by the court when the court asked: "Where is the bad faith?", Mr. Eckert replied: "...we have less than two days of investigation..." NT. at 23. In response to the court asking; "Where is the flagrant abuse of discretion on the part of the District Attorney of Montgomery County?", Mr. Eckert replied: "...the fact that there was no investigation done and the fact that the alleged defendant's counsel was copied on the correspondence two days after the complaint is filed shows that there was more than what's -more investigation than what's alleged in that response done." N.T. at 24-25.

At the October 9, 2012 argument, Mr. Maloney set forth the reasons for the denial of Raymond Perelman's private criminal complaint. Mr. Maloney stated that based on Raymond Perelman's complaint which he argued should be "their best case scenario for why they believe a crime has occurred, " the Commonwealth "did not feel that there was a sufficient prima facie case." N.T. at 26. Mr. Maloney stated that the Commonwealth's decision was based on the fact that the District Attorney's Office has a policy of not getting involved in family court matters, and, there was an issue as to venue belonging with Philadelphia County. Finally, Mr. Maloney stated: "there was no criminality alleged. There was criminality implied..." N.T. at 27.

The above were proper reasons given by the Commonwealth for the denial of Raymond Perelman's private criminal complaint. He failed to show that any of the Commonwealth's actions in connection with its review of the complaint were made in bad faith, fraudulently, arbitrarily, or with discrimination or pretense. Therefore, Raymond Perelman's argument is without merit.

The court did not err or abuse its discretion in denying Raymond Perelman's petition to review the Commonwealth's decision denying his private criminal complaint. The court found that the Commonwealth's legal and policy based reasons for denying the complaint were credible and sound, and, that the decision was made absent bad faith, fraud, arbitrariness, discrimination, or pretense by the Commonwealth.

Therefore, the court properly deferred to or affirmed the Commonwealth's decision without a de novo review of the petition. The court respectfully requests that the court's January 10, 2013 order be affirmed.


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