IN RE: PRIVATE CRIMINAL COMPLAINT DONALD MILES APPEAL OF: DONALD MILES
from the Order Entered February 22, 2017 In the Court of
Common Pleas of Lackawanna County Civil Division at No(s):
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
Donald Miles, appeals pro se from the order entered
in the Lackawanna County Court of Common Pleas, which denied
and dismissed his petition for approval of his private
criminal complaint. We affirm.
trial court opinion sets forth the relevant facts and
procedural history of this case as follows:
1. [Appellant] has attempted to file a private criminal
complaint against Vincent Butkiewicz, John Munley, Thomas
Davis, Harold Zech, all alleged to be Detectives with the
Lackawanna County District Attorney's Office. He has also
in the same pleading attempted to file a criminal complaint
against Attorneys James R. Elliot and Corey Kolcharno and
"…others to be charged from the DA's Office
magistrates & judge. Unlimited John Doe, unlimited Jane
2. [Appellant] has also attempted to file a criminal
complaint against Assistant District Attorney Cathy Ann
Tully, District Attorney James Henry Scanlon IV, Andrew
Jarbola (Judge, Lackawanna County Court of Common Pleas),
John Pesota (Magisterial District Judge) and Alyce Farrell
(Magisterial District Judge), Vito P. Geroulo (Judge,
Lackawanna County Court of Common Pleas). … For the
reasons that follow, the relief sought by [Appellant] is
denied and dismissed.
3. All of the above are alleged to have criminally wronged
[Appellant] relative to a criminal matter filed to OTN number
L924393 at Magisterial District Judge Alyce Farrell's
Office 45-1-02. The location of the alleged crime is at 521
Arthur Avenue, Scranton, PA 18510. The date of the offense is
in dispute but approximately February 17, 2016.
4. [Appellant] attempted to file a private criminal complaint
with the issuing authority against the District Attorney and
members of his staff on or about September 9, 2016. The
matter had to be referred by the issuing authority to the
District Attorney for approval to proceed with the case per
5. On or about October 13, 2016, a letter from the first
Assistant District Attorney Gene P. Riccardo directed to
[Appellant] acknowledged the private [criminal] complaint
attempted to be filed by [Appellant] against Attorney Cathy
Tully. At that time, recognizing the conflict of interest,
the Lackawanna County District Attorney's Office referred
the putative criminal complaints to the Office of the
Attorney General of the Commonwealth of Pennsylvania.
6. This referral was acknowledged as received by the Office
of the Attorney General of the Commonwealth of Pennsylvania
on December 28, 2016. …
7. [Appellant] erroneously filed a Petition for Review of the
District [Attorney's] "…disapproval of his
Private Criminal Complaint." The Petition for
Review…is in error because at that point on November
8, 2016, the District Attorney's Office had not
disapproved his private criminal complaint but had referred
it, due to conflicts, to the Office of the Attorney General.
8. On February 6, 2017 at 3:09 p.m., this [c]ourt received an
email from an attorney with the Office of the Attorney
General with two attachments. … The attachments
indicate the Office of Attorney General for the Commonwealth
of Pennsylvania refuses to approve [Appellant's] private
criminal complaint…per Pa.R.Crim.P. 506(2). The reason
for the disapproval as articulated in…Request to Close
the Case dated January 26, 2017 is[:] "In his lengthy
PCC [Appellant] completely failed, however, to articulate or
produce any evidence of criminal conduct by anybody. …
It is clear he is merely trying to confuse and delay his
criminal trial with this PCC."
9. Due to the response by the Office of the Attorney General,
closing the case of [Appellant's] [private criminal
complaint], [Appellant's] untimely and inaccurate
[p]etition for review had now become ripe for decision. This
is so because now the erroneous alleged rejection of the
[p]rivate [c]riminal [c]omplaint by the Office of the
District Attorney has in fact occurred by the Office of the
Attorney General. Accordingly, the November 8, 2016 Petition
for Review filed by [Appellant] will now be entertained on
its merits by this [c]ourt.
10. [T]he January 26, 2017 letter from the Office of the
Attorney General to [Appellant] and…the request to
Close Case also dated January 26, 2017 were submitted to this
[c]ourt by email dated February 6, 2017.
11. The context of both [documents] indicate[s] the
conclusion of the Office of the Attorney General that the
proposed private [criminal] complaints of [Appellant] are
lacking substantive merit. The letter…states,
"[Y]our private criminal complaint fails to articulate
or produce any evidence of criminal conduct by any person.
Moreover, the events you describe therein are the same
incidents for which you are currently awaiting trial."
(Docket No. CP 35-482-2015).
12. The Request to Close Case…states, "To
conclude, [Appellant] neither alleged nor substantiated at
all any facts to support any criminal charge against any
person. I do not find this PCC to be in good faith."
(Trial Court Opinion, filed February 22, 2017, at 1-4).
by order and opinion filed February 22, 2017, the trial court
denied and dismissed Appellant's petition for approval of
his private criminal complaint. Appellant timely filed a
pro se notice of appeal on March 7, 2017. The trial
court did not order Appellant to file a concise statement of
errors complained of on appeal per Pa.R.A.P. 1925(b), and
Appellant did not voluntarily file a Rule 1925(b) statement.
raises one issue for our review:
WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION OR
AN ERROR OF LAW WHERE THE TRIAL COURT DEPRIVED APPELLANT HIS
DUE PROCESS OF LAW UNDER OUR UNITED STATES CONSTITUTION WHEN
THE TRIAL COURT DID NOT ALLOW APPELLANT A FAIR OPPORTUNITY TO
FILE A PROPER AND TIMELY PETITION FOR REVIEW PURSUANT TO
PENNSYLVANIA RULE OF CRIMINAL PROCEDURE…506(B)(2) IN
THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY FOR SENIOR
DEPUTY ATTORNEY GENERAL BERNARD A. ANDERSON'S DISAPPROVAL
OF APPELLANT'S PRIVATE CRIMINAL COMPLAINT?
(Appellant's Brief at 4).
argues he was deprived of his due process rights.
Particularly, Appellant questions the referral of his private
criminal complaint to the Attorney General's Office.
Appellant does not understand why the District Attorney's
Office of Lackawanna County refused to rule on the private
criminal complaint. Appellant maintains he did not receive
timely notification of approval or disapproval of his private
criminal complaint as well. Appellant asserts his concern
about "deadlines" prompted him to file a premature
petition for review on November 8, 2016. Appellant contends
the Attorney General unreasonably delayed his decision to
disapprove Appellant's private criminal complaint.
further asserts the trial court deprived Appellant of his due
process rights by directly reviewing the disapproval of the
Attorney General's Office. Appellant contends he was
denied the opportunity to file a proper petition for review
per Pa.R.Crim.P. 506(B)(2) to defend or challenge the
Attorney General's disapproval. Appellant concludes he is
the victim of a conspiracy to divest him of his
constitutional due process rights, and this Court should
reverse the trial court's order denying approval of
Appellant's private criminal complaint. We disagree.
examination of a trial court's review of the District
Attorney's decision to disapprove a private criminal
complaint implicates the following:
[W]hen the district attorney disapproves a private criminal
complaint solely on the basis of legal conclusions, the trial
court undertakes de novo review of the matter.
Thereafter, the appellate court will review the trial
court's decision for an error of law. As with all
questions of law, the appellate standard of review is de
novo and the appellate scope of review is plenary.
[W]hen the district attorney disapproves a private criminal
complaint on wholly policy considerations, or on a hybrid of
legal and policy considerations, the trial court's
standard of review of the district attorney's decision is
abuse of discretion. This deferential standard recognizes the
limitations on judicial power to interfere with the district
attorney's discretion in these kinds of decisions.
In re Ullman, 995 A.2d 1207, 1213 (Pa.Super. 2010),
appeal denied, 610 Pa. 600, 20 A.3d 489 (2011)
(quoting In re Private Criminal Complaint of Wilson,
879 A.2d 199, 214-15 (Pa.Super. 2005) (en banc)
(internal citations omitted)).
private criminal complaint must at the outset set forth a
prima facie case of criminal conduct. In re
Ullman, supra at 1213. Nevertheless, even "a
well-crafted private criminal complaint cannot be the end of
the inquiry for the prosecutor." Id. (quoting
In re Private Complaint of Adams, 764 A.2d 577, 580
(Pa.Super. 2000). The district attorney must investigate the
allegations of the complaint to permit a proper decision on
whether to approve or disapprove the complaint. In re
Ullman, supra at 1213. "[S]uch investigation is not
necessary where the allegations of criminal conduct in the
complaint are unsupported by factual averments."
Id. (quoting Commonwealth v. Muroski, 506
A.2d 1312, 1317 (Pa.Super. 1986) (en banc). Both the
district attorney and the trial court have a responsibility
to prevent the misuse of judicial and prosecutorial resources
in the pursuit of pointless prosecutions. In re Ullman,
supra at 1213.
[E]ven if the facts recited in the complaint make out a
prima facie case, the district attorney cannot
blindly bring charges, particularly where an investigation
may cause him to question their validity. Forcing the
prosecutor to bring charges in every instance where a
complaint sets out a prima facie case would compel
the district attorney to bring cases he suspects, or has
concluded via investigation, are meritless. The
public prosecutor is duty bound to bring only those cases
that are appropriate for prosecution. This duty continues
throughout a criminal proceeding and obligates the district
attorney to withdraw charges when he concludes, after
investigation, that the prosecution lacks a legal basis.
Id. at 1214 (quoting In re Private Criminal
Complaint of Wilson, supra at 212).
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