In Re: Peterman, T., Appeal of: Peterman, T. ( 2022 )


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  • J-A29036-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: TIMOTHY PETERMAN                    :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    APPEAL OF: TIMOTHY PETERMAN                :
    :
    :
    :
    :
    :   No. 258 WDA 2021
    Appeal from the Order Entered January 21, 2021
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
    CP-07-MD-0000823-2020
    BEFORE:      BENDER, P.J.E., DUBOW, J., and PELLEGRINI, J.*
    MEMORANDUM BY PELLEGRINI, J.:                        FILED: JANUARY 12, 2022
    Timothy and Tammy Peterman (the Petermans) appeal from the order
    entered in the Court of Common Pleas of Blair County (trial court) denying in
    part their appeal of the private criminal complaint they filed against Brad
    Confer (Confer) concerning the death of their son Zachary Peterman
    (Decedent) in a motorcycle accident in which they alleged charges of Homicide
    by Vehicle, Recklessly Endangering Another Person (REAP), Overtaking a
    Vehicle on the Right (OVR), Speeding, and Reckless Driving.1
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   75 P.S. § 3732, 18 Pa.C.S. § 2705, 75 P.S. §§ 3304, 3362 and 3736.
    J-A29036-21
    The trial court granted their appeal as to the bringing of the Reckless
    Driving charge only but denied it with respect to all remaining charges. On
    appeal, the Petermans challenge the trial court’s decision concerning the REAP
    and OVR charges. The Commonwealth also contests the court’s order as to
    the Reckless Driving offense.2 We affirm.
    I.
    A.
    The subject accident occurred on June 1, 2019, at 1:30 p.m. when the
    Decedent lost control of his motorcycle while negotiating a mostly blind right
    curve in the roadway while travelling northbound at approximately 76 miles
    per hour (mph), 36 miles per hour above the posted speed limit. The evidence
    showed that the Decedent’s motorcycle fell to its side as the Decedent slid
    along the roadway before he crashed into a guard rail and sustained injuries
    leading to his death.       The fatal accident was precipitated by an incident
    involving the Decedent and Confer, who was also travelling northbound on the
    roadway on his motorcycle. Confer had recognized the Decedent as the ex-
    ____________________________________________
    2 Because it did not file a cross-appeal, the Commonwealth’s contention that
    the trial court abused its discretion in allowing the private complaint to go
    forward involving the reckless driving charge is not before us. See Goodrich
    v. Luzerne Apparel Mfg. Corp., 
    514 A.2d 188
    , 189 (Pa. Super. 1986)
    (“Issues raised in the [Defendants’ Brief] will not be considered. If these
    parties were aggrieved by the trial court’s order, they could have appealed
    separately or could have joined in appellants’ appeal. Pa.R.A.P. 501, 512.
    Since they did neither, issues raised by them will not be considered.”).
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    fiancé of his daughter, Samantha Kimberling. The Decedent was 27 years-old
    at the time and was riding along side of his friend Tyler Wray (Wray) when
    the accident occurred.
    Pennsylvania State Police (PSP) Officer Justin Roland responded to the
    scene and interviewed several eyewitnesses to the accident.3          Confer
    approached the officer and relayed that he knew the Decedent and had
    information regarding the crash. Confer indicated that as he rode north on
    the roadway and was stopped at a red traffic light, he heard an individual
    yelling at him from behind and revving his motorcycle engine.         Confer
    observed that the Decedent and Wray were behind him and that all of the
    vehicles stopped at the traffic light proceeded forward when the light turned
    green. Confer recounted that the Decedent crossed the double yellow line in
    order to pass him on the left. The Decedent then braked and swerved in front
    of him, cutting him off. Confer passed the Decedent by moving into the right
    fog lane and he sped up past the Decedent, who was visible in his rearview
    mirror only for a short period of time. When Confer circled back, he came
    upon the crash scene. Confer advised Officer Roland that his motorcycle never
    made contact with the Decedent and that he was attempting to move away
    ____________________________________________
    3Investigators also arrived to take measurements and photographs and to
    gather other evidence to prepare an accident reconstruction report.
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    from him. Police inspection of Confer’s motorcycle revealed no evidence or
    markings indicating that he made any contact with the Decedent’s motorcycle.
    In a follow-up interview,4 Confer explained that he knew the Decedent
    through his daughter Kimberling, and that the couple had briefly resided with
    him before they ended their relationship. Although the Decedent had “anger
    issues,” Confer generally liked him and had ridden motorcycles with him in
    the past. (PSP General Offense Report, 10/14/20, at 13). Confer provided
    an account of the incident consistent with his initial interview and added that
    when the traffic light turned green, he extended his middle finger to the
    Decedent before the Decedent passed him.
    Wray recounted that the Decedent pointed Confer out as they
    approached the red light and revved the engine of his motorcycle.          The
    Decedent then crossed the double yellow line to pass Confer and cut over in
    front of him. Confer swerved his motorcycle towards the Decedent and both
    vehicles sped away and crested a hill. Wray followed the men and stopped
    when he saw the Decedent laying in the roadway.
    In his follow-up interview, Wray provided an account consistent with his
    initial statement and added that he and the Decedent had been connected by
    blue tooth headphones as they rode. The Decedent stated two things before
    ____________________________________________
    4Officer Roland interviewed Confer, Wray and witness Diana Krebs (Krebs)
    again in June 2019.
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    the crash: “I’m gonna pass him” and “Oh Fuck.” (Id.). Wray also indicated
    that both the Decedent and Confer passed a vehicle travelling in front of them
    by crossing the double yellow line but that he stayed behind the vehicle and
    did not pass it.
    Krebs relayed to Officer Roland that she was delivering mail in her
    vehicle and was completely off of the roadway at the time of the accident.
    Krebs heard loud motorcycles approach her vehicle from behind and observed
    two motorcycles pass by her at a high rate of speed and a third motorcycle
    slide along the roadway. Krebs saw the Decedent slide along the road behind
    his motorcycle and hit the guard rail, causing his helmet to fly off his head.
    The Decedent then slid under the guard rail before he was thrown back onto
    the road. Krebs attempted to render aid to the Decedent along with Wray. In
    a follow-up interview, Krebs again relayed that two motorcycles passed her
    and that the Decedent’s motorcycle slid past her. She also recounted that
    Wray was repeatedly yelling the Decedent’s name.
    Jackie and Todd Mertiff reside near the accident site and Ms. Mertiff
    heard loud motorcycles and metal scraping and observed the Decedent slide
    along the roadway and impact the guard rail.     She called 911 and for her
    husband, who had also heard loud, seemingly fast motorcycles and a scraping
    sound. Mr. Mertiff observed Confer pass the Decedent and the Decedent’s
    motorcycle slide to the ground.
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    In October 2019, Officer Roland met with Krebs and the then-District
    Attorney, Richard A. Consiglio, at the accident scene. A mostly blind right
    curve leads north downhill towards the crash scene, with no shoulder area
    after the right fog lane. Krebs explained that she always parks off the roadway
    while delivering mail at this location, “because of the curve and the excessive
    speeds people travel on the roadway.”              (Id. at 23).    The accident
    reconstruction report calculated the speed of the Decedent’s motorcycle when
    he lost control at approximately 76 mph in a 40 mph zone.
    Officer Roland and DA Consiglio conferred about potential charges to
    bring against Confer, including REAP. Officer Roland recommended:              “this
    incident [should] be closed as unfounded for Reckless Endangerment. I do
    not believe there is enough evidence to distinguish between any particular
    rider for criminal charges. I, with the approval of my supervisors believe this
    to be a traffic accident. I recommend that Confer be charged for violation of
    PAVC 3361 Driving Vehicle at Safe Speed and PAVC 3714 Careless Driving.”
    (Id.).    The PSP filed these two charges against Confer in accordance with
    Officer Roland’s recommendation.
    B.
    The Petermans, acting pro se, filed a private criminal complaint on
    December       19,   2019,   petitioning    the   Commonwealth    to   bring    the
    aforementioned charges against Confer, including REAP, Reckless Driving and
    OVR. The complaint averred: “it is known that [Confer and the Decedent]
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    disliked each other as a result of the failed engagement” and that Confer
    “engaged his middle finger in an obscene gesture towards the Victim
    Peterman” as both parties revved the engines of their motorcycles and
    proceeded northbound at high rates of speed. (Affidavit of Probable Cause,
    12/19/19, at 1).      The Petermans alleged that Confer’s conduct during the
    incident resulted in the motorcycle crash and the death of their son. (See id.
    at 3).
    On February 6, 2020, DA Consiglio disapproved the Petermans’ private
    criminal complaint, explaining:
    The attached private criminal complaint is disapproved for
    more than one reason.
    The charges of Homicide by Vehicle and Recklessly
    Endangering Another Person have no prosecutorial merit. The
    same has been determined by the undersigned after investigation
    of the incident, including the review of all reports, viewing the
    scene, interviewing witnesses, and viewing various taped
    recordings of statements by witnesses.
    In addition, the State Police have already charged the
    defendant, Brad Confer, with the summary offenses of Driving at
    Safe Speed (75 Pa.C.S.A. 3361), and Careless Driving (75
    Pa.C.S.A. 3314). The filing of those two charges make the
    summary charges requested in the private criminal complaint
    moot.
    Further, it is the policy of the District Attorney’s Office not
    to pursue private complaints when the police authorities have
    already filed charges in connection therewith and the undersigned
    determines that the charges filed by the State Police are
    appropriate.
    (DA Consiglio Disapproval Letter, 2/06/20).
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    In an accompanying letter to the PSP, DA Consiglio reiterated his
    conclusion after his review of all the evidence in this case that the charges
    filed by the police were appropriate. (See Letter to Sergeant Jesse Moyer,
    2/06/20).
    C.
    The Petermans filed the underlying petition to appeal the denial of the
    private criminal complaint in the trial court in July 2020 and the court held
    oral argument at which the Petermans were represented by counsel on
    October 14, 2020.5 At the hearing, the new District Attorney, Peter Weeks,
    had not yet received the disapproval letter authored by DA Consiglio and he
    indicated his understanding that the private criminal complaint was denied for
    more than one reason but that:            “I will defer to the reasons set forth by
    Attorney Consiglio, and I will wait until I get that document.” (N.T. Hearing,
    10/14/20, at 14). District Attorney Weeks also stated that in speaking with
    DA Consiglio, his position was that “he and the State Police met several times
    and reviewed the investigation and came to the conclusion that the summary
    charges that they filed were the appropriate charges, and that a private
    criminal complaint as a matter of policy should not upset that determination.
    I will defer to the language used by Attorney Consiglio in the denial.” (Id. at
    ____________________________________________
    5 In the interim, the Petermans filed a second private criminal complaint before
    learning that the appropriate procedure was to appeal the first complaint for
    which they retained counsel.
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    20-21). He also explained that the charging decision against Confer was a
    collaborative effort where “the State Police met with Attorney Consiglio and
    he went out to the scene. He went to the barracks. They came here. There
    was a lot of back-and-forth.    Attorney Consiglio interviewed the different
    investigators, and then a joint decision was reached on what charges to be
    filed.” (Id. at 23).
    The trial court took the matter under advisement and left the record
    open to receive the disapproval letter. The court issued its Opinion and Order
    granting the Petermans’ petition as to the Reckless Driving charge only and
    denying their request as to all remaining charges on January 21, 2021. The
    trial court found that DA Consiglio did not abuse his discretion concerning the
    majority of the alleged charges, and that the private criminal complaint was
    denied “on a policy reason as to the homicide by vehicle and REAP charges,
    and a facially stated hybrid of fact and policy as to the summary offenses.”
    (Trial Court Opinion, 1/21/21, at 31). However, the court concluded that DA
    Consiglio did abuse his discretion as to the summary offense of Reckless
    Driving, which he denied “either based on a policy for which the court can find
    no support in the law, or a policy which was a thin veneer over fact and a
    deferral of his responsibility as the ultimate decision-maker about whether or
    not to bring charges in Blair County.” (Id. at 32). The Petermans timely
    appealed and they and the trial court complied with Rule 1925. See Pa.R.A.P.
    1925(a)-(b).
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    II.
    A.
    On appeal, the Petermans contest the trial court’s finding that DA
    Consiglio properly disapproved the REAP and OVR charges.6 They contend
    that the purported policy basis provided by DA Consiglio for declining to
    prosecute these charges was arbitrary and pretextual, and that there was no
    reasonable basis for the trial court to sustain the “nonsensical proffered policy
    determination     . . . [made] in bad faith.”            (Petermans’ Brief, at 17).   The
    Petermans point to the excessive speed at which Confer was travelling in close
    proximity to other vehicles at the time of the crash, and Confer’s admission
    ____________________________________________
    6The REAP statute provides: “A person commits a misdemeanor of the second
    degree if he recklessly engages in conduct which places or may place another
    person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. The
    OVR statute provides in relevant part:
    (a) General rule.─The driver of a vehicle may overtake and pass
    upon the right of another vehicle only under one of the following
    conditions:
    *       *     *
    (2) Upon a roadway with unobstructed pavement of
    sufficient width for two or more lines of vehicles moving lawfully
    in the direction being traveled by the overtaken vehicle, except
    that such movement shall not be made by driving off the roadway.
    (b) Limitation.─No passing movement under this section shall
    be made unless the movement can be made in safety.
    75 Pa.C.S. § 3304(a)(2), (b).
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    that he passed the Decedent on the right to support its position that they
    “would have unquestionably prevailed” if the trial court had employed the
    appropriate de novo standard of review instead of a differential abuse of
    discretion standard. (Id. at 17).7 The Petermans maintain that DA Consiglio’s
    “decision boils down solely to the assertion by the PSP Trooper [Roland] that
    he could not distinguish between any particular rider for criminal charges”
    which is arbitrary and pretextual given the “mere fact that all three riders may
    have been engaging in reckless conduct does not obviate the criminal
    responsibility of any individual.” (Id. at 11-12).
    The Commonwealth responds by contending that the appropriate
    standard is abuse of discretion and that the court properly denied the
    Peterman’s appeal as to DA Consiglio’s disapproval of the REAP and OVR
    ____________________________________________
    7
    [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. . . . [In contrast], when 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 Miles, 
    170 A.3d 530
    , 534–35 (Pa. Super. 2017) (citation omitted;
    emphasis added).
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    charges. However, it maintains that in rendering its decision on the Reckless
    Driving offense,8 the court improperly substituted it judgment for that of DA
    Consiglio and misinterpreted his disapproval letter.
    B.
    We begin by noting that “a private criminal complaint must at the outset
    set forth a prima facie case of criminal conduct.” In re Wilson, 
    879 A.2d 199
    , 211 (Pa. Super. 2005) (citation omitted). “The district attorney must
    investigate the allegations of a properly drafted complaint to enable the
    exercise of his discretion concerning whether to approve or disapprove the
    complaint.”     
    Id.
     (citation omitted).        “If the Commonwealth disapproves a
    private criminal complaint, the complainant can petition the Court of Common
    Pleas for review.” Kundratic v. Luzerne Cty. Dist. Attorney’s Office, 
    261 A.3d 563
    , 565 (Pa. Super. 2021); see also Pa.R.Crim.P. 506(B)(2).
    A district attorney’s conclusion that a case lacks
    prosecutorial merit is a ‘policy determination’ subject to
    the trial court’s review for an 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. Thereafter, the appellate court will
    review the trial court’s decision for an abuse of discretion, in
    keeping with the settled principles of appellate review of
    discretionary matters. The district attorney’s decision not to
    prosecute a criminal complaint for reasons including policy
    matters carries a presumption of good faith and soundness.
    ____________________________________________
    8The Vehicle Code provides that “Any person who drives any vehicle in willful
    or wanton disregard for the safety of persons or property is guilty of reckless
    driving.” 75 Pa.C.S. § 3736(a).
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    The complainant must create a record that demonstrates
    the contrary. Thus, the appropriate scope of review in policy-
    declination cases is limited to whether the trial court
    misapprehended or misinterpreted the district attorney’s decision
    and/or, without a legitimate basis in the record, substituted its
    judgment for that of the district attorney. We will not disturb the
    trial court’s decision unless the record contains no reasonable
    grounds for the court’s decision, or the court relied on rules of law
    that were palpably wrong or inapplicable. Otherwise, the trial
    court’s decision must stand, even if the appellate court would be
    inclined to decide the case differently.
    The private criminal complainant has the burden to
    prove the district attorney abused his discretion, and that
    burden is a heavy one. In the Rule 506 petition for review, the
    private criminal complainant must demonstrate the district
    attorney’s decision amounted to bad faith, fraud or
    unconstitutionality.     The complainant must do more than
    merely assert the district attorney’s decision is flawed in these
    regards. The complainant must show the facts of the case
    lead only to the conclusion that the district attorney’s
    decision was patently discriminatory, arbitrary or
    pretextual, and therefore, not in the public interest. In the
    absence of such evidence, the trial court cannot presume to
    supervise the district attorney’s exercise of prosecutorial
    discretion, and should leave the district attorney’s decision
    undisturbed.
    Kundratic, supra at 565 (emphases added; citation omitted); see also In
    re Private Criminal Complaints of Rafferty, 
    969 A.2d 578
    , 582 (Pa. Super.
    2009) (stating that this Court has consistently held that a determination that
    a case lacks prosecutorial merit is a policy determination).
    “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.” In re Miles,
    supra at 535 (citation omitted).     “This decision not to prosecute may be
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    implemented by the district attorney’s refusal to approve the private criminal
    complaint at the outset.” Id. (citation omitted).
    C.
    In this case, DA Consiglio’s disapproval letter clearly explains that his
    office would not pursue the requested charges on the policy grounds of lack
    of prosecutorial merit and/or because it was the general policy of the DA’s
    Office to decline to pursue the allegations raised in private criminal complaints
    under circumstances where the police authorities have already filed charges
    that the DA’s office has deemed appropriate, as was the case here.9
    Although the Petermans characterize DA Consiglio’s stated policy
    reasons for denying the complaint as “illusory” and “bogus,” this claim lacks
    any support in the record. (See Petermans’ Brief, at 17-18). The Petermans
    claim that the DA’s decision was solely based on a single isolated statement
    made by Officer Roland indicating that he could not distinguish between any
    particular rider for criminal charges. However, DA Consiglio made no mention
    of this statement in his disapproval letter or accompanying letter to the PSP.
    Moreover, it is clear from the record that both Officer Roland and DA Consiglio
    did not absolve Confer from criminal responsibility for his conduct simply
    ____________________________________________
    9The DA also found the request for the filing of summary traffic offenses moot
    as Confer had already been charged with the similar offenses of Speeding and
    Careless Driving, obviating the need for redundant charges.
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    because the Decedent was also driving unsafely, as they approved charges
    against Confer for Speeding and Careless Driving.
    The record also reflects that DA Consiglio made his policy determination
    not to bring additional charges against Confer after meeting with Officer
    Roland and eyewitness Krebs at the crash scene, conferring with Officer
    Roland as to the possible charges to bring against Confer, and considering all
    available evidence including an accident reconstruction analysis of the crash.
    The evidence showed that at the time of the crash, the Decedent was
    travelling at an excessive speed of 76 mph in a 40 mph zone while negotiating
    a dangerous blind curve in the road and that his motorcycle lacked any
    markings indicating that Confer had made contact with it. Furthermore, the
    DA had already made a charging determination and had authorized the state
    police to bring two particular charges, which had already been filed at the time
    the Petermans filed their complaint. Thus, the appropriate standard of review
    was an abuse of discretion rather than de novo. See Kundratic, supra at
    565.    Under this standard, the petitioner has the very heavy burden of
    demonstrating that the DA’s decision was patently discriminatory, arbitrary or
    pretextual and, therefore, not in the public interest. See id.
    Here, as discussed above, the Petermans have made only generalized
    unsupported allegations that DA Consiglio’s decision was pretextual and
    “bogus” without reference to any actual evidence in the record showing any
    indica of bias or unfairness on the part of the DA or PSP in bringing only two
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    charges against Confer. Instead, the record reflects that the PSP conducted
    a thorough investigation of the crash and filed charges based on Officer
    Roland’s informed assessment that this was a tragic traffic accident.
    The DA, likewise, carefully weighed the potential charges against Confer
    and made his decision to disapprove the private criminal complaint after
    careful review of the crash scene, witness statements and accident
    reconstruction data. Thus, we agree with the trial court that the DA acted
    within his discretion in disapproving the Petermans’ complaint as to the REAP
    and OVR charges.
    Order affirmed. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 01/12/2022
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Document Info

Docket Number: 258 WDA 2021

Judges: Pellegrini, J.

Filed Date: 1/12/2022

Precedential Status: Precedential

Modified Date: 1/12/2022