In Re: Private Complaint Filed by Luay Ajaj ( 2021 )

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2021 PA Super 28IN RE: PRIVATE COMPLAINT FILED BY IN THE SUPERIOR COURT
LUAY AJAJ OF PENNSYLVANIA
APPEAL BY: COMMONWEALTH OF
PENNSYLVANIA
No. 3421 EDA 2019
Appeal from the Order Entered October 31, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at Nos: CP-46-MD-0001539-2019,
CP-46-MD-0001539-2019
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
OPINION BY STABILE, J.: Filed: February 25, 2021
The Commonwealth appeals from the October 31, 2019 order entered
in the Court of Common Pleas of Montgomery County overturning the
Commonwealth’s disapproval of a private complaint filed by Luay Ajaj (“Ajaj”).
Ajaj filed the private complaint seeking charges against his wife (“Mother”) for
violations of 18 Pa.C.S.A. § 2904(a) (interference with custody of children)
and § 2909(a) (concealment of whereabouts of a child). The Commonwealth
disapproved the complaint, initially citing “evidentiary issues.” However, at
the time of the hearing on the matter, the Commonwealth argued “policy
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* Retired Senior Judge assigned to the Superior Court.
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considerations.” The Commonwealth asserts the trial court abused its
discretion by overturning the disapproval. Following review, we affirm.
While the underlying facts themselves are somewhat complicated, they
are further complicated by the state of world affairs. Essentially, after the
court awarded Ajaj custody of his two children, he filed a private complaint
charging Mother with interfering with their custody and concealing their
whereabouts “by hiding them away in the war-torn country of Iraq contrary
to orders of this court conferring sole legal and physical custody of the children
on Ajaj, issuing bench warrants for [Mother], and directing all agencies of law
enforcement to cooperate in securing the children’s return.” Trial Court
Opinion 5/8/20, at 1 (some capitalization omitted).
The trial court provided the following factual and procedural
background:
Ajaj instituted this action in this court on June 26, 2019, by
petition under [Pa.R.Crim.P.] 506(B)(2), for review of the District
Attorney’s disapproval of Ajaj’s private criminal complaint. The
petition, however, was not the beginning of Ajaj’s struggle to
attain the return of his purloined children, but the last straw in a
long and tortuous process . . . to bring them home from one of
the most perilous countries on Earth. . . .
The current saga began in August 2017, when the mother of the
two children, then approximately one and four years old, left with
them and [Ajaj] from the home in West Norriton, Pennsylvania,
where the family, all United States citizens, had lived since the
children’s birth, on a trip to Iraq. While there, she and her uncles
took the children away to an undisclosed location. Ajaj has been
on an unfailing quest to get them back ever since.
Following the trail of the somewhat disjointed pro se narrative and
exhibits of the private criminal complaint attached to Ajaj’s
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petition . . . , this lower court pieces together that to get his
children back Ajaj first consulted with American authorities in Iraq,
where his life was being threatened by the mother’s powerful
uncles and other third parties. Ajaj had a meeting with the office
of American Citizen Services of the United States Embassy in
Baghdad, Iraq (where he believed the mother still to be with the
children) on September 12, 2017.
Unsuccessful there, he returned home, retained counsel, and
broadened his outreach stateside to the United States Department
of State’s passport center, Diplomatic Security Service, and Office
of Children’s Issues, later repeating his foray to the U.S. Embassy
in Baghdad in August 2018. Based on these contacts and
meetings, on September 17, 2018, the Office of Children’s Issues
opened a case file and, through Soren Andersen, “the Country
Officer in the Office of Children’s Issues responsible for outgoing
cases of international parental child abduction to Iraq,” wrote Ajaj
a letter listing resources to help him in resolving the crisis.
Id. at 2-3 (citations to exhibits and some capitalization omitted).
The letter from Sorensen to Ajaj outlined options available to Ajaj,
including filing for custody in the United States and seeking recognition of a
custody order in Iraq; filing for custody in Iraq; or consulting with law
enforcement authorities about potential criminal remedies, noting his office
“can assist you with communicating with law enforcement, should you decide
to pursue criminal warrants against your children’s mother.” Id. at 3 (quoting
Sorensen’s September 17, 2018 letter to Ajaj). Sorensen also recommended
filing a missing persons report as a first step to any of the available options
as a means of documenting the children’s retention by Mother. Id.
While seeking advice from various agencies and entities, on September
27, 2018, Ajaj also filed an emergent petition for custody of the children in
the Family Division of the Montgomery County Court. On October 1, 2018,
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that court entered an order deeming the matter an emergency and granting
sole legal and physical custody to Ajaj pending a full hearing upon the
children’s return. The court scheduled additional proceedings, at which
Mother did not appear, and ultimately issued a bench warrant for Mother’s
arrest and affirmed the award of sole legal and physical custody to Ajaj.
The trial court summarized various legal proceedings and developments
that occurred between September 2018 and May 2019, id. at 5-13, including
the issuance of an order in the domestic proceedings that directed
Montgomery County law enforcement agencies to cooperate in the capture of
Mother and the return of the minor children. Id. at 13 (citing order dated
5/31/19 and entered 6/3/19).
On May 31, 2019, Ajaj filed his private criminal complaint with exhibits,
seeking to charge Mother with the offenses noted above, i.e., interference
with custody of children and concealing the whereabouts of children. As this
Court reiterated in In re Hamelly, 200 A.3d 97 (Pa. Super. 2018), “A private
complaint must at the outset set forth a prima facie case of criminal conduct.”
Id. at 101 (quoting In re Ullman, 995 A.2d 1297, 1213 (Pa. Super. 2010)).
“The district attorney must investigate the allegations of a properly drafted
complaint to permit a proper decision on whether to approve or disapprove
the complaint.” Id. (citing Ullman, 995 A.2d at 1213).
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On June 19, 2019, the District Attorney’s Office issued its disapproval of
the complaint, citing “evidentiary issues.”1 Because the disapproval was
based on evidentiary issues, on June 26, 2019. Ajaj filed a petition for de novo
review of the disapproval. The court scheduled a July 23, 2019 hearing on
the petition.2
On the day of the hearing, the District Attorney’s Office (hereinafter
referred to as “the Commonwealth”) filed an answer to the petition in which it
asserted for the first time that the complaint was properly disapproved, not
only for evidentiary issues, but also for policy considerations. The
Commonwealth then argued policy considerations at the hearing.3 Those
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1 The private Criminal Complaint at issue is a two-page form complaint to
which Ajaj appended documentation in support of his claims. At the bottom
of the second page, the District Attorney checks a box indicating the complaint
is either approved or disapproved. In the event of disapproval, the reason is
to be identified. In the instant case, the form reflects that the complaint was
“disapproved because ‘evidentiary issues.’” See Private Criminal Complaint
at 2.
2 As will be discussed infra, when a private criminal complaint is disapproved
for legal reasons, such as “evidentiary issues,” the trial court’s review of that
disapproval is de novo. However, when a complaint is disapproved for policy
reasons, or a combination of policy and legal reasons, the trial court reviews
the disapproval for abuse of discretion. In re Miles, 170 A.3d 530, 534-35
(Pa. Super. 2017). See also In re Wilson, 879 A.2d 199, 214-15 (Pa. Super.
2005) (en banc).
3 While we expect that the court and Ajaj’s counsel had the benefit of the
Commonwealth’s answer at the time of the hearing, we note that the
transcript reflects the hearing began at 10:45 a.m. on July 23, 2019 and
concluded at 11:10 a.m., while the Commonwealth’s answer was not filed with
the Clerk of Courts until 12:09 p.m. that day.
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policy considerations included the Commonwealth’s policy of not approving
private complaints alleging a felony, the Commonwealth’s use of caution in
criminalizing actions of parents involved in custody disputes, and the
availability of alternative civil as well as federal remedies. See
Commonwealth’s Response to Motion Seeking Review and Approval of Private
Criminal Complaint (“Commonwealth’s Response to Motion”), 7/23/19, at
¶ 1(a)-(c); see also Notes of Testimony, 7/23/19, at 9-15.4
The trial court took the matter under advisement and issued an order
granting Ajaj’s petition and reversing the disapproval of his private complaint.
Trial Court Order, 10/31/19. This timely appeal followed. Both the
Commonwealth and the trial court complied with Pa.R.A.P. 1925.
The Commonwealth asks this Court to consider one issue:
1. Did the lower court err and abuse its discretion by overturning
the Commonwealth’s disapproval of a private criminal
complaint, where the Commonwealth acted in good faith and
the private criminal complainant did not meet his burden to
show that the Commonwealth’s disapproval was an abuse of
discretion?
Appellant’s Brief at 5.
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4 The Commonwealth’s Response to Motion also outlined two evidentiary
issues, i.e., insufficient probable cause to establish that Mother, rather than
her uncles, committed a crime, and the lack of resources to investigate the
merits of the complaint. Commonwealth’s Response to Motion, 7/23/19, at
¶ 1(d)-(e).
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We begin by setting forth the applicable standard of our review. As this
Court explained in In re Miles, 170 A.3d 530 (Pa. Super. 2017), the trial
court undertakes a de novo review when a district attorney disapproves a
private criminal complaint solely on the basis of legal conclusions. Id. at 534.
“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.” Id. (citations omitted).
By contrast, when reviewing a disapproval that is based “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.” Id. at 535. In that instance, “the appellate court will review the
trial court’s decision for an abuse of discretion, in keeping with settled
principles of appellate review of discretionary matters.” Wilson, 879 A.2d at
215 (citations omitted). “An abuse of discretion is not merely an error
of judgment, but if in reaching a conclusion the law is overridden or misapplied
or the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence or the record,
discretion is abused.” Id. (citations omitted). See also Commonwealth v.
Brown (“Brown II”), 708 A.2d 81, 84 (Pa. 1998) (“a trial court should not
interfere with a prosecutor’s policy-based decision to disapprove a private
complaint absent a showing of bad faith, fraud, or unconstitutionality”).
Here, the trial court recognized the competing standards of review to be
employed by the trial court, depending on whether the disapproval was based
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on legal reasons or on policy reasons (or a hybrid of both). Recognizing that
the Commonwealth waited until the day of the hearing to raise policy
considerations—more than a month after disapproving the complaint for
evidentiary reasons, the court remarked:
For the Commonwealth thus to have changed its tune at the last
minute put Ajaj at a disadvantage by leading him to believe he
would be entitled to de novo review of the Commonwealth’s
decision, and to come to the hearing prepared to testify to rebut
any evidentiary concerns, only to find that the Commonwealth was
now bringing in unanticipated issues of policy not only to heighten
the standard of the court’s review to one of abuse of prosecutorial
discretion, but to deny the relevance of an evidentiary hearing
altogether.
Trial Court Opinion, 5/11/20, at 20. The court suggested that the
prosecution’s failure to raise any policy considerations prior to the date of
Ajaj’s hearing “casts doubt on their genuineness.” Id. at 21. “However,
whether the Commonwealth’s not raising ‘policy issues’ in initially
disapproving the complaint . . . waived any such issues for purposes of appeal
is for the honorable Superior Court to determine.” Id.
The court then conducted a de novo review of the evidentiary issues
raised by the prosecution in the Commonwealth’s Response to Motion and its
Rule 1925(b) statement. As framed in the Commonwealth’s Rule 1925(b)
statement, there were
evidentiary concerns because the conduct outlined in the
complaint focuses on the conduct of the mother’s uncles and does
not provide sufficient evidence of mother’s knowledge and intent,
and evidentiary concerns because there is no evidence to
overcome affirmative defenses that the mother was taking action
necessary to preserve the child from danger or that she was not
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fleeing domestic violence or child abuse, or that mother had no
legal privilege to custody of the children especially because there
are currently custody proceedings going on in Iraq; and []
investigative and evidentiary concerns because, with the
exception of [] Ajaj, all possible witnesses, court documents, and
other information is in Iraq, and local law enforcement does not
have the resources to conduct a thorough investigation to resolve
the above concerns.
Rule 1925(b) Statement at ¶ 1(2)-(3).
The trial court dismissed the Commonwealth’s “evidentiary issues”
relating to custody, noting that Ajaj was the best source of evidence
concerning Mother’s conduct. As for Mother’s actions in possibly preserving
the children from danger or fleeing domestic or child abuse, any such issues
could have been raised before the court in the custody proceedings. Despite
Mother’s assurances she would return to Montgomery County with the
children, she never did so. Ultimately, the judge handling the custody
proceedings not only awarded sole legal and physical custody to Ajaj—
grounding her ruling firmly in the “best interests of the children”—but also
issued bench warrants for Mother and directed law enforcement to cooperate
in securing the children’s return. See Trial Court Opinion, 5/8/20, at 21-24.
Having reviewed the evidentiary concerns relating to custody, the trial court
concluded that Ajaj’s complaint made out a prima facie case that Mother
concealed the whereabouts of the children in violation of 18 Pa.C.S.A.
§ 2909(a). The trial court’s analysis and conclusion apply equally to a finding
that the complaint made out a prima facie case of interference with the
custody of the children in violation of 18 Pa.C.S.A. § 2904(a). “For the
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Commonwealth to put forward the possibility of evidence of abuse as grounds
for refusing prosecution in these circumstances is an affront to the court that
found no such credible evidence after counselled proceedings at which
[Mother] had several opportunities, indeed was compelled by the court, to
appear and testify.” Id. at 24-25 (some capitalization omitted).
With respect to witnesses and documents being in Iraq, the trial court
similarly dismissed those concerns. The court noted that Mother failed to
comply with the directive in the custody proceedings to provide documents
relating to any parallel proceedings in Iraq. Further, the court rejected the
Commonwealth’s contention that it lacked resources to investigate evidentiary
matters, noting that federal authorities
were “blinking red” with signals to the [Commonwealth] to file
charges and have a warrant issued so that the federal government
would have the requisite basis upon which to pursue the matter
and assist the [Commonwealth] with the only means possible of
securing capture of [Mother] and, hopefully by extension, rescue
the children.
Id. at 26. The court noted the Commonwealth’s awareness of the FBI and
State Department’s indications to Ajaj that “he would have little chance of
getting their best efforts to secure the capture of the mother and the return
of the children” if charges were not filed and a warrant issued. Id.
Based on its de novo review of the disapproval based on evidentiary
issues, the trial court found the Commonwealth’s claims lacked merit. Having
undertaken a plenary review of that decision, we find no error of law in the
trial court’s ruling. Therefore, we shall not disturb it.
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As reflected above, the Commonwealth first raised policy considerations
at the time of the July 23, 2019 hearing on the disapproval, after listing only
“evidentiary issues” as the basis for its disapproval on the complaint form on
June 19, 2019. The trial court declined to find waiver, leaving that decision
to this Court, and proceeded to review and reject the Commonwealth’s policy
claims under an abuse of discretion standard. While we might be inclined to
find the Commonwealth limited its basis for disapproval when it noted only
evidentiary issues in its disapproval, our review of the trial court’s disposition
under an abuse of discretion standard would not yield a different result.
As this Court explained in Commonwealth v. Brown (“Brown I”), 669
A.2d 984 (Pa. Super. 1995) (en banc), aff’d by an equally divided court,
Brown II, 708 A.2d 81 (Pa. 1998):
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.
Brown I at 990 (emphasis in original).
In its Rule 1925(a) opinion, the trial court addressed each of the policy
considerations asserted in the Commonwealth’s Response to Motion. First, it
considered the Commonwealth’s contention that it did not approve private
complaints alleging a felony. After suggesting that such a policy could have
been easily stated when it first disapproved the complaint, the court noted
that the Commonwealth did not present any evidence of such guidance to its
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prosecuting attorneys. Trial Court Opinion, 5/8/20, at 27. Moreover, such a
policy struck the court “as an especially bad one. It wipes from the books for
consideration in the private-complaint setting the most serious of classic
crimes spelled out in the Crimes Code,” including third-degree murder,
kidnapping, forcible rape, and the crimes charged in the instant case:
interference with custody of children and concealment of the whereabouts of
a child. Id.The trial court next considered the policy assertion that caution should
be exercised in criminalizing actions of estranged parents involved in a custody
dispute. While acknowledging such a policy might be laudable when one
parent is attempting to tilt the playing field in what should be strictly a
domestic-relations rather than criminal case, “that is not what happened
here.” Id. at 28. Instead, despite the best efforts of the judge in the custody
case to apply civil remedies, the judge nevertheless was compelled to call
upon law enforcement agencies to cooperate in Mother’s capture and the
return of the minor children. Id. The extraordinary circumstances of this case
“should not be overcome by the [Commonwealth’s] ordinary reluctance to
intervene in civil suits.” Id. at 29.
The court next considered the Commonwealth’s argument that civil
remedies were available to Ajaj. While recognizing that the existence of civil
remedies can serve as a legitimate policy reason for disapproving a complaint,
“here that policy reason does not apply.” Id. (citing, inter alia,
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Commonwealth v. Cooper, 710 A.2d 76, 81 (Pa. Super. 1998)). As the
court explained:
Essentially this court through its orders was acknowledging that
the civil remedies Ajaj had pursued to the hilt and been granted
would still be inadequate, and that [Mother’s] criminal actions in
defiance of the court’s orders required the intervention of all the
organs of criminal law enforcement to have any force and effect.
Id. (some capitalization omitted).5
In Brown I, the trial court rejected the policy considerations asserted
by the Commonwealth as its basis for disapproving the private criminal
complaint, noting the Commonwealth’s “vague claim of ‘policy’ [was]
unsupported by reference to a specific policy that requires the disapproval of
this private complaint.” Id. at 992. This Court concluded that the trial court
did not abuse its “narrowly limited discretion” when it found the
Commonwealth “failed to advance sufficient policy reasons in support of the
disapproval of the private criminal complaint.” Id. Similarly, in the present
case, while the Commonwealth offered three “policy considerations” for
disapproving Ajaj’s complaint, the trial court found the Commonwealth failed
to advance sufficient policy reasons for any of the three “policies.” In Brown
II, an equally divided Supreme Court affirmed this Court’s en banc decision,
which affirmed the trial court’s reversal of the Commonwealth’s disapproval
of the private complaint, noting:
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5 Although the Commonwealth did not mention the availability of civil remedies
in its Rule 1925(b) statement, the trial court elected to address it because it
was raised in the Commonwealth’s Response to Motion.
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In sum, we are unable to conclude that the Attorney General’s
decision not to prosecute . . . was in furtherance of any valid policy
of this Commonwealth. While the discretionary decisions of a
prosecutor must be given due deference, it is clear that the
Attorney General’s position in this case represents a “deviation
from moral rectitude [and] sound thinking,” and is simply not
tenable. Thus, we are compelled to conclude that the Attorney
General acted in bad faith in disapproving [the] complaint.
Brown II, 708 A.2d at 86.6
In the instant case, not only did the Commonwealth raise policy
considerations in an untimely manner, but also it raised policy considerations
that deviate from moral rectitude and sound thinking under the facts as
developed in the custody proceedings and as summarized in Ajaj’s complaint
and exhibits. Therefore, we find the trial court did not abuse its discretion
when it found the Commonwealth failed to advance sufficient policy reasons
to support disapproval of the complaint. As explained above, we also find that
the trial court did not commit error of law in rejecting the Commonwealth’s
disapproval based on evidentiary issues. Therefore, we affirm the trial court’s
order directing the Commonwealth to accept and transmit the complaint for
prosecution in accordance with Pa.R.Crim.P. 506(B)(1).
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6 In Brown II, the Court noted:
The term “bad faith” has been defined as “not simply bad
judgment or negligence, but rather it implies the conscious doing
of a wrong because of . . . moral obliquity . . ..” Black’s Law
Dictionary 139 (6th ed.1990). “Obliquity” involves a “deviation
from moral rectitude or sound thinking.” Merriam–Webster’s
Collegiate Dictionary 802 (10th ed.1996).
Brown II, 708 A.2d at 85.
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Order affirmed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/21
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