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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NON-PRECEDENTIAL DECISION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 ...

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