In Re: Ellis, O. Appeal of: Ellis, O. ( 2016 )

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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: OLIVER ELLIS IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
APPEAL OF: OLIVER ELLIS
No. 2201 MDA 2015
Appeal from the Order Entered November 17, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP- 22 -MD- 0001520 -2015
BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 24, 2016
Oliver Ellis appeals from the order affirming the disapproval of his
private criminal complaint by the Office of the District Attorney of Dauphin
County ( "District Attorney "). We affirm.
This case involves the District Attorney's denial of Appellant's private
complaint wherein Appellant sought to file assault charges against John
Sanks, III. The pertinent factual background is taken from the certified
record. On June 1, 2013, Harrisburg City Police responded to the
intersection of Harris and North 6th Streets for a reported motor vehicle
accident. Appellant was located on the sidewalk near the intersection, and
told police he did not know what had happened. The officers observed that
Appellant was disoriented, displayed slurring of his speech, and had
* Former Justice specially assigned to the Superior Court.
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bloodshot eyes. Appellant was taken to Harrisburg Hospital, where he
consented to a blood draw. Subsequent testing revealed that Appellant's
blood alcohol level was 0.194, and he was later charged with driving under
the influence. The police learned that Appellant struck a motorcyclist, Brian
Sanks, when Appellant entered the motorcycle's lane of travel. Appellant did
not mention any assault when speaking to officers at the hospital.
In May 2015, almost two years after the incident, Appellant contacted
the Harrisburg City Police to file charges, claiming that John Sanks, III, the
brother of the injured motorcyclist, punched Appellant in the back of the
head shortly after the crash. He named two witnesses to the assault: Eric
Tarter and George Waters, whom the police then interviewed. Mr. Tarter
confirmed he was at the scene of the incident, but said he arrived after
Appellant was on the sidewalk and did not see the alleged attack. Mr.
Waters confirmed that a male had punched Appellant, but was unable to
identify the assailant. The police closed the case for lack of evidence.
Letter, 10/20/15 (Exhibit to Petition for Review of Decision to Disapprove
Private Criminal Complaint, 11/2/15).
Rebuffed by the police, Appellant submitted a private complaint on
October 3, 2015, for district attorney approval pursuant to Pa.R.Crim.P. 506.
The rendition of the facts in the complaint was as follows:
On the aforementioned date, the Defendant, following a motor
vehicle accident involving the Defendant, the Defendant's
brother, Brian, and myself, punched me in the back of my head,
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causing me to lose consciousness and as a result, sustain a
concussion. I do not remember anything following the punch,
but Mr. George Waters witnessed the entire incident. Other
injuries sustained include burns to my head and right arm as
well as a black eye.
Private Complaint, 10/03/15.
The District Attorney denied the complaint on October 20, 2015, with a
corresponding letter explaining its reasons. The letter informed Appellant
that its office had reviewed the Harrisburg City Police files and highlighted
the fact that the witnesses could not identify the alleged culprit.
Additionally, the reviewing prosecutor set forth her opinion that Appellant's
testimony was unlikely to be credited, since he told police at the time that
he could not recall what had happened and waited almost two years to make
his allegations.
On November 2, 2015, Appellant filed a petition for review with the
Court of Common Pleas of Dauphin County pursuant to Rule.' The court
ordered the District Attorney to file a response, and the Commonwealth
' (B) If the attorney for the Commonwealth:
(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.
Pa. R.Crim.P 506(B)(2).
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complied on November 13. The court denied the petition four days later.
Appellant filed a timely notice of appeal. Appellant and the trial court
complied with the requirements of Pa.R.A.P. 1925, and the matter is now
ready for our review. Appellant presents two issues:
I. Whether the [t]rial [c]ourt committed an error of
law when it denied [Appellant's] Petition for Review from
the [d]enial of his Private Criminal Complaint, where the
District Attorney based its denial on legal conclusions, and
where the private criminal complaint set forth a prima
facie case of criminal conduct which was supported by
factual assertions which were corroborated by its
investigation?
II. Whether the [t]rial [c]ourt committed an abuse of
discretion when it denied [Appellant's] Petition for Review
from the [d]enial of his Private Criminal Complaint, where
the District Attorney based its denial on policy, or a hybrid
of policy and legal reasoning, and where the denial was
done with bad faith, fraud, or unconstitutionality?
Appellant's brief at 4.
Our review is confined to the trial court's review of the District
Attorney's decision.
When an appeal is brought from a common pleas court's decision
regarding the approval or disapproval of a private criminal
complaint, an appellate court is limited to ascertaining the
propriety of the trial court's actions. Thus, our review is limited
to determining whether the trial court abused its discretion or
committed an error of law.
Commonwealth v. Brown, 669 A.2d 984, 990 (Pa.Super. 1995) (en banc)
(emphasis in original). The trial court itself applies different standards
depending on the prosecution's reasons for denying the complaint. "The
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trial court must first correctly identify the nature of the district attorney's
reason(s) for denying a private criminal complaint." In re Wilson, 879 A.2d
199, 212 (Pa.Super. 2005) (en banc). The determinative factor is whether
the Commonwealth decision was based solely on legal grounds, or whether a
policy consideration played a role.
When the Commonwealth's disapproval is based wholly on legal
considerations, the court employs a de novo review. Where the
decision includes or is entirely based on policy considerations,
the trial court reviews the Commonwealth's determination under
an abuse of discretion standard.
Braman v. Corbett, 9 A.3d 1151, 1157 -58 (Pa.Super. 2011) (citations
omitted). The trial court's selection of standard is itself subject to an abuse
of discretion review. Commonwealth v. Cooper, 710 A.2d 76, 80
(Pa.Super. 1998) ( "Regarding appellant's second argument, that the district
attorney's decision was solely a legal conclusion, we find no abuse of
discretion in the trial court's determination that the decision was based on
policy considerations. ").
Instantly, the trial court applied an abuse of discretion standard,
finding that the complaint was denied, in part, for policy reasons. Appellant
maintains that the court should have applied a de novo standard.
Despite admitting that the disapproval of the Private Criminal
Complaint was based solely upon legal reasons, in its Response,
the Commonwealth makes several claims that could be
considered policy justifications for its denial. However, it is
important to point out that this was not raised when the District
Attorney denied the Private Criminal Complaint, but was only
raised when this decision was questioned before the Trial Court.
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Appellant's brief at 13 (emphasis in original). We disagree. The trial court's
opinion states, in pertinent part:
In the instant matter, the Commonwealth articulated a hybrid of
legal and policy rationale in support of its denial. The Deputy
District Attorney cited the unlikelihood of successfully
prosecuting Mr. Sanks where the alleged conduct could not be
corroborated by any witnesses and the alleged assailant could
not be positively identified.
Trial Court Opinion, 3/7/16, at 5.
The trial court clearly did not abuse its discretion in finding that the
district attorney articulated a hybrid rationale. We recognize Appellant's
argument that the District Attorney relied solely upon a legal reason in
denying the complaint. As Appellant points out, the letter appended to the
disapproval states, "[B]ased upon the lack of evidence, and thus an inability
to prove the case beyond a reasonable doubt, your Private Criminal
Complaint has been disapproved." Letter, 10/20/15, at 3 (Exhibit to Petition
for Review of Decision to Disapprove Private Criminal Complaint, 11/2/15).
We agree that the phrase "inability to prove the case beyond a reasonable
doubt" is a legal conclusion evaluating the sufficiency of the evidence.
Nevertheless, we find it is abundantly clear from the context of the letter as
a whole that the prosecutor believed the likelihood of securing a conviction
was minimal. To the extent that notion is in dispute, the Commonwealth's
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response to the trial court's order dispels it.2 "In reviewing the information
submitted from the police, as well as Mr. Ellis, it would be highly unlikely
that the case could be proven beyond a reasonable doubt to a jury."
Commonwealth Response, 11/13/15, at unnumbered 4. We have held that
a statement declaring a minimal likelihood of conviction implicates policy and
is subject to the abuse of discretion standard:
Here, the District Attorney disapproved Appellant's private
criminal complaint for mixed reasons of law and policy. The trial
court correctly applied due deference to that decision, in
recognition of the District Attorney's duty to conserve and
devote the resources of his office to cases in which there is a
likelihood of a conviction.
In re Wilson, supra at 218. Therefore, the trial court properly applied the
abuse of discretion standard.
2 Appellant recognizes that the Commonwealth's response articulates a
policy rationale. "Despite admitting that the disapproval of the Private
Criminal Complaint was based solely upon legal reasons, in its Response, the
Commonwealth makes several claims that could be considered policy
justifications for its denial." Appellant's brief at 13. We discern Appellant's
argument to be that the trial court erred in its scope of review by
considering the Commonwealth's November 13, 2015 response.
However, the trial court is clearly permitted to consider the Commonwealth's
response. See Commonwealth ex rel. Guarrasi v. Carroll, 979 A.2d 383(Pa.Super. 2009) (record was not clear as to whether prosecutor declined to
prosecute for legal reasons, policy reasons, or hybrid of both; remanded for
evidentiary hearing on that issue).
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Having determined the trial court applied the correct standard, we now
proceed to review the trial court's denial of the petition. Appellant must
show that
the decision not to prosecute was "patently discriminatory,
arbitrary or pretextual, and therefore not in the public interest."
We will not disturb the trial court's ruling unless "there are no
reasonable grounds for the court's decision, or the court relied
on rules of law that were palpably wrong or inapplicable."
Braman v. Corbett, 19 A.3d 1151, 1158 (Pa.Super. 2011).
Appellant does not attempt to show the District Attorney decision was
discriminatory, arbitrary, or pretextual. Nor does Appellant dispute the
accuracy of the facts as revealed by the District Attorney's investigation of
the police reports. Instead, Appellant merely repeats his argument, which
we have rejected, that the trial court "suppl[ied] its own policy justification
for the District Attorney's disapproval, and thereby appl[ied] the incorrect,
and notably more deferential, standard." Appellant's brief at 15.
As the Commonwealth correctly notes, its investigation failed to
produce any corroborating evidence whatsoever that Mr. Sanks punched him
in the back of the head. At best, the eyewitnesses supplied by Appellant can
testify only that someone punched Appellant. The reviewing prosecutor
pointed out that Appellant did not mention to the police any assault at the
time of the incident, and did not press charges for over two years. Those
reasons alone justify the trial court's deference to the Commonwealth's
decision not to prosecute. As we stated in Braman:
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Even 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 1159 (citing In re Ullman, 995 A.2d 1207, 1213 -14 (Pa.Super.
2010)).
The only argument marshaled against the Commonwealth's exercise of
discretion is a cursory statement that the "denial was done with bad faith,
fraud, or unconstitutionality." Appellant's brief at 13. Moreover, Appellant
claims the office failed to set forth any established policy justifying the
disapproval. However, the Commonwealth is not required to do so. See
Braman, supra at 1162 (prosecution not required to submit evidence of a
policy when rejecting complaint on basis that a conviction is unlikely). The
District Attorney is permitted to conserve and devote resources of the office
to cases in which there is a likelihood of conviction. In re Wilson, supra at
218. Accordingly, reasonable grounds exist for the trial court's decision and
we therefore find no abuse of discretion.
Order affirmed.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 10/24/2016
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