Com. v. Brown

Decision Date29 December 1995
Citation669 A.2d 984,447 Pa.Super. 454
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Michael Reuben BROWN.
CourtPennsylvania Superior Court

Mary B. Seiverling, Deputy Attorney General, Harrisburg, for the Commonwealth, appellant.

Barry L. Smith, Warren, for Jay W. Buckley, participating party.

Before ROWLEY, President Judge, and CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT and SAYLOR, JJ.

JOHNSON, Judge:

The Commonwealth brings this appeal claiming that the trial court, in ordering the prosecution of a private criminal complaint, usurped its policy-making authority contrary to the separation of powers doctrine. We are also asked to clarify the standard by which the trial court evaluates a prosecutor's decision regarding a private complaint. Further, we must establish the standard for appellate review of such a complaint. Because we find that the trial court did not err or abuse its discretion in directing the Attorney General to prosecute this case, we affirm.

In September 1989, while investigating the kidnapping, rape and murder of Kathy Wilson, the police in Warren County, Pennsylvania, offered a reward for information leading to the discovery and conviction of her killer. In response, New York resident Michael Reuben Brown, then age 16, contacted authorities and claimed to have information about the case. Police arranged to have Brown transported to Pennsylvania. Upon his arrival, Brown was immediately arrested and charged with Wilson's murder, rape and kidnapping. Following his arrest, Brown gave statements to police that implicated Jay William Buckley as Wilson's murderer. Thereafter, police arrested Buckley and charged him with Wilson's murder, kidnapping, and rape. In return for his testimony against Buckley, prosecutors agreed to permit Brown 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 ultimately kill Wilson. However, during ten days of cross-examination, defense counsel questioned Brown about numerous inconsistencies between his in-court testimony and the statements he had given to police. Counsel pointed out discrepancies in, among other things, Brown's descriptions of Wilson's clothing, how she was abducted, and the type of weapon used. As a result, Brown admitted that he had repeatedly lied in his statements to police and during previous court appearances. Brown also conceded that he had committed numerous acts of perjury at Buckley's preliminary hearing. In all, Brown admitted to having told over 700 lies in connection with the disappearance and murder of Wilson. Subsequently, the jury acquitted Buckley on all charges.

Following Brown's guilty plea to the lesser charges, the trial court sentenced him to an aggregate term of 7 to 14 years' imprisonment. Brown then filed post-trial motions for reconsideration of his sentence and withdrawal of his guilty plea. Thereafter, at a hearing on these motions, Brown again testified that he had lied at Buckley's trial when he claimed to have been an eyewitness to Wilson's abduction, rape and murder. According to Brown, his trial testimony had been scripted by Pennsylvania State Trooper John Herzog and District Attorney Joseph Massa, and he had testified the way that he did at their request. The trial court granted Brown's petition to withdraw his guilty plea and authorized the Commonwealth to reinstate the original charges against him. The Commonwealth, however, elected not to prosecute and petitioned the court to nolle pros all charges. The trial court granted this petition. Further, the District Attorney decided not to file charges against Brown for making false statements to police or committing perjury during Buckley's preliminary hearing and trial.

On November 21, 1991, Buckley submitted a private criminal complaint to the Warren County District Attorney's Office pursuant to Pa.R.Crim.P. 133, Approval of Private Criminal Complaints, which has since been re-numbered as Pa.R.Crim.P. 106. In his complaint, Buckley alleged that Brown committed 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. The private criminal complaint was based upon Brown's actions leading up to Buckley's arrest and during Buckley's trial.

In his complaint, Buckley named the District Attorney as Brown's co-conspirator. As a result, the District Attorney, pursuant to the Commonwealth Attorney's Act, 71 P.S. § 732-205(a)(3), asserted a conflict of interest and requested that the Attorney General review the complaint. In July 1993, twenty months after its submission to the District Attorney's Office, the Attorney General disapproved Buckley's private criminal complaint. Pursuant to Rule 106, Buckley filed a petition with the court of common pleas, seeking its approval of the private criminal complaint. Following a hearing in December 1993, the trial court concluded that the Attorney General had committed a gross abuse of discretion in disapproving the first eight counts of Buckley's private criminal complaint and directed the Attorney General to prosecute Brown on those charges. However, the court disapproved the conspiracy charge, determining that the Attorney General had acted within his discretion when deciding not to prosecute on that charge. This appeal followed.

On appeal, the Attorney General argues that the trial court's directive to prosecute the criminal complaint, despite the Attorney General's policy-based discretionary decision to the contrary, violates the separation of powers doctrine. The Attorney General further asserts that the trial court erred in determining that he committed a gross abuse of discretion in disapproving the private criminal complaint.

In order to consider the merit of these contentions, we must analyze the authority that establishes the proper procedure for addressing private criminal complaints. This procedure is set forth in Pa.R.Crim.P. 106 as follows:

Rule 106. Approval of Private Complaints

(a) When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.

(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 file the complaint with a judge of a court of common pleas for approval or disapproval....

As his first issue, the Attorney General contends that the trial court's directive to prosecute Buckley's private criminal complaint, despite the Attorney General's policy-based discretionary decision to the contrary, violates the separation of powers doctrine. Specifically, he asserts that courts may never evaluate prosecutorial decisions that are based on policy determinations. We disagree.

First, after reviewing the record, we find that this issue is raised for the first time in the Attorney General's brief to this Court. It is well-settled that if an issue is not properly preserved at trial, it is waived for the purposes of appellate review. Pa.R.A.P. 302(a); Commonwealth v. Shoup, 423 Pa.Super. 12, 620 A.2d 15 (1993). Thus, we find that this issue has been waived.

Moreover, even if this issue had been properly preserved, we conclude that the Attorney General's contention is without merit. Rule 106, in authorizing the issuance of private criminal complaints, expressly provides for the approval or disapproval of such a complaint by a judge of the court of common pleas. See also Commonwealth v. Stivala, 435 Pa.Super. 176, 187, 645 A.2d 257, 262 (1994) ("The clear language of [Rule 106] indicates that although the prosecuting attorney has discretion over whether to prosecute based upon the filing of a private complaint, that discretion is not unfettered, and necessarily involves review by the trial court."). In addition, this Court has stated that a judge's independent review of a private complaint serves as a necessary check and balance of the prosecutor's decision and protects against the possibility of error. Commonwealth v. Pritchard, 408 Pa.Super. 221, 233, 596 A.2d 827, 833 (1991).

We agree with the Attorney General's assertion that the separation of powers doctrine, in general, prohibits the judiciary from intervening when the executive branch has freely exercised its discretionary authority to execute the laws of the Commonwealth. Cf. Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698 (1977). It is this doctrine that makes courts wary of interfering with or supervising a prosecuting attorney in the exercise of his discretion in controlling criminal prosecutions. In re Maloney, 431 Pa.Super. 321, 326, 636 A.2d 671, 676 (1994); Commonwealth v. Muroski, 352 Pa.Super. 15, 20, 506 A.2d 1312, 1314 (1986).

However, the separation of powers doctrine does not entirely preclude judicial review of discretionary decisions made by the executive branch. Our supreme court has stated that

"the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions. That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for...

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