Com. v. Brown

• Decision Date: 17 February 1998
• Citation: 708 A.2d 81,550 Pa. 580
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Michael Reuben BROWN, Appellee.
• Court: Pennsylvania Supreme Court

Page 81

708 A.2d 81

550 Pa. 580

COMMONWEALTH of Pennsylvania, Appellant, v. Michael Reuben BROWN, Appellee.

Supreme Court of Pennsylvania.

Submitted March 3, 1997.

Decided Feb. 17, 1998.

Thomas W. Corbett, Jr., Mary Benefield Seiverling, Harrisburg, Catherine Marshall, Philadelphia, for the Com.

Michael Reuben Brown, Pro Se.

Barry L. Smith, Warren, for Jay William Buckley.

John J. Kerrigan, Newtown, for Criminal Defense Lawyers, Amicus Curiae.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

ORDER

PER CURIAM.

THE COURT BEING EVENLY DIVIDED, THE ORDER OF THE SUPERIOR COURT IS AFFIRMED.

NIGRO, J., files an Opinion in Support of Affirmance in which FLAHERTY, C.J., joins and ZAPPALA, J., concurs in the result.

CAPPY, J., files an Opinion in Support of Reversal in which CASTILLE and NEWMAN, JJ., join.

SAYLOR, J., did not participate in the consideration or decision of this matter.

OPINION IN SUPPORT OF AFFIRMANCE

NIGRO, Justice.

In this case, the Attorney General of the Commonwealth of Pennsylvania appeals from the Superior Court's affirmance of the trial court's order compelling the Attorney General to prosecute a private criminal complaint against Appellee Michael Reuben Brown. At issue is the proper standard of review to be used by a trial court when reviewing a prosecutor's disapproval of a private criminal complaint. For the reasons presented herein, we would affirm.

In September 1989, police in Warren County, Pennsylvania were investigating the kidnapping, rape, and murder of Kathy Wilson, a resident of Chautauqua County, New York. ¹ Hoping to further the investigation, the New York and Pennsylvania State Police offered a $26,000 reward for information leading to discovery and conviction of the killer. Appellee Brown, a sixteen-year-old New York resident, contacted the authorities and claimed to have information about the case.

The police arranged for Brown to be transported to Pennsylvania, ostensibly to receive the reward. When he arrived at the State Police barracks in Warren County, however, he was immediately arrested and charged in the Wilson killing. In response, Brown identified Jay William Buckley as the killer. Buckley was then arrested and charged with kidnapping, rape, and murder. In return for his testimony against Buckley, Brown was permitted to plead guilty to the lesser charges of indecent assault, felonious restraint, and hindering apprehension.

At Buckley's trial, Brown testified that he had been with Buckley and had witnessed him kidnap, rape, and kill Ms. Wilson. However, during cross-examination, defense counsel pointed out numerous inconsistencies between Brown's testimony and his previous statements to police. As a result, Brown eventually admitted that he had repeatedly lied both in his statements to police and at Buckley's preliminary hearing. In all, Brown admitted to over 700 instances of falsification or perjury in connection with the abduction and murder of Ms. Wilson. After a four-week trial, Buckley was acquitted on all charges on June 6, 1991.

Brown, however, had pled guilty to lesser charges. After being sentenced to seven to fourteen years in prison, he filed a motion to withdraw his guilty plea and for reconsideration of sentence. A hearing was held, at which Brown stated that he had lied at Buckley's trial and that he was never an eyewitness to any of the crimes in the Wilson case. He claimed that Buckley had simply told him about having committed the crime. Brown stated that he had initially told the police that he was an eyewitness in order to receive the reward money offered. He then claimed that, once arrested, he was coached and prompted by police and the district attorney to repeatedly change his story so that it coincided with the physical evidence in the case. He stated that he altered his accounts in order to satisfy the authorities' desire for an eyewitness and because he was threatened with the withdrawal of his plea agreement.

The trial court granted Brown's motion to withdraw his guilty plea, finding that the police had worked with Brown, prompting him to align his story with the physical evidence and with the time frame of the events. ² Although the district attorney was authorized to reinstate the original charges against Brown, he chose not to prosecute, and the charges were nolle prossed. The district attorney also chose not to file charges against Brown for his false statements to police or for his perjury at Buckley's preliminary hearing and trial.

In response, Buckley filed a private criminal complaint with the district attorney's office, pursuant to Pa. R.Crim. P. 133, on November 21, 1991. ³ Buckley alleged that Brown had committed nine offenses: three acts of perjury and one act each of making false reports to law enforcement authorities, tampering with or fabricating physical evidence, hindering apprehension or prosecution, obstructing the administration of law or other governmental function, making unsworn falsifications to authorities, and criminal conspiracy.

In the complaint, Buckley named the district attorney and a State Police officer as Brown's co-conspirators, alleging that they had conspired to present false testimony at Buckley's trial. The district attorney therefore asserted a conflict of interest and asked the Attorney General to review Buckley's complaint. ⁴ The Attorney General did so and, in July 1993, disapproved the complaint, stating:

--There is no credible proof of a criminal conspiracy and the available evidence tends to negate any conspiratorial accord.

--Mr. Brown's conflicting accounts were patently obvious to everyone and rather than prejudicing Mr. Buckley, they aided his defense and substantially contributed to his acquittal.

--The trial resulting from [Buckley's] complaint, if [it] were approved would consume substantially more court time and resources.

Furthermore, Mr. Brown has already been incarcerated for two years [as a result of his guilty pleas in the Wilson case].

The decision to decline prosecution in this matter is based upon factors broader than simply the quantum of evidence available and is founded in the policy considerations inherent in this Office as public prosecutor.

R.R. at 129a (Disapproval of Buckley Complaint, dated 7/26/93).

Pursuant to Pa. R.Crim. P. 133(b)(2), Buckley sought approval of the complaint from the trial court. After a hearing, the court determined that the Attorney General had committed a gross abuse of discretion in disapproving the first eight charges in the complaint--all of them except the conspiracy charge. The court therefore directed the Attorney General to prosecute Brown on everything but the conspiracy charge.

The Attorney General appealed, and a divided Superior Court panel affirmed. After reargument en banc, the Superior Court again affirmed, finding that the trial court had not erred in concluding that the Attorney General had committed a gross abuse of discretion by disapproving Buckley's complaint. The Attorney General again appealed, and this Court granted allocatur. We must now determine the proper standard of review to be used by the trial court when it reviews a prosecutor's policy-based disapproval of a private criminal complaint under Pa. R.Crim. P. 133. ⁵

Initially, we find that the lower courts in this case erred in applying a gross abuse of discretion standard. This Court has previously indicated that there is no distinction between a gross abuse of discretion standard of review and an abuse of discretion standard. See Moore v. Moore, 535 Pa. 18, 28 n. 4, 634 A.2d 163, 168 n. 4 (1993). In other words, the term "gross" is mere surplusage; there is no separate and distinct gross abuse of discretion standard of review. See id.; see also Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85 (1993) (defining abuse of discretion). Thus, the lower courts erred in reviewing the Attorney General's actions under a gross abuse of discretion standard.

We note that

[a] District Attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case. See Commonwealth v. Ragone, 317 Pa. 113, 176 A. 454 (1935); Commonwealth ex rel. Specter v. Freed, 424 Pa. 508, 228 A.2d 382 (1967).

Commonwealth v. DiPasquale, 431 Pa. 536, 540-41, 246 A.2d 430, 432 (1968); accord Commonwealth v. Stipetich, 539 Pa. 428, 430, 652 A.2d 1294, 1295 (1995); Commonwealth v. Whitaker, 467 Pa. 436, 443, 359 A.2d 174, 177 (1976). "Thus, 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." Commonwealth v. Malloy, 304 Pa.Super. 297, 303, 450 A.2d 689, 692 (1982).

In Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989), a plurality decision, this Court distinguished between a prosecutor's disapproval of a private complaint for reasons of policy and a disapproval based on a legal evaluation of the sufficiency of the complaint. The district attorney in Benz had disapproved a private complaint because it failed to make out a prima facie case. The trial court reviewed that decision and affirmed the disapproval. On appeal, the Superior Court reversed after concluding that the evidence did establish a prima facie case. This Court then affirmed and explained that because the district attorney's decision not to prosecute was based on a legal evaluation of the merits of the case, the courts were authorized to determine the propriety of that decision. See Benz, 523 Pa. at 208, 565 A.2d at 767. The Opinion Announcing the Judgment of the Court stated: "because the reason [for the disapproval] was the ultimate determination by the district attorney that no crime had been committed, this Court is authorized to...