Com. v. Pritchard

• Court: Pennsylvania Superior Court
• Writing for the Court: POPOVICH; Larsen
• Citation: Com. v. Pritchard, 596 A.2d 827, 408 Pa.Super. 221 (Pa. Super. Ct. 1991)
• Decision Date: 16 August 1991
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Gerald PRITCHARD, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Brian PRITCHARD, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Donald RUDOLPH, Appellee.

Page 827

596 A.2d 827

408 Pa.Super. 221

COMMONWEALTH of Pennsylvania, Appellant, v. Gerald PRITCHARD, Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. Brian PRITCHARD, Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. Donald RUDOLPH, Appellee.

Superior Court of Pennsylvania.

Argued April 24, 1991.

Filed Aug. 16, 1991.

Daniel G. Spengler, Asst. Dist. Atty., Bath, for Com.

G. Pritchard, pro se.

B. Pritchard, pro se.

D. Rudolph, pro se.

Brian M. Monahan, Easton, for participating party. (Submitted).

Before KELLY, POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge:

This case of first impression involves the interpretation of Pa.R.Crim.P. 133. Herein, we are presented with the Commonwealth's appeal from an Order of the Court of Common Pleas of Northampton County which permitted the filing of a private criminal complaint without the approval of the Attorney for the Commonwealth. ¹

The Commonwealth argues that approval of the private criminal complaint by the District Attorney was required in the present case and that the trial court was in error in concluding that the charges constituted a "clear and present danger" within the meaning of Rule 133, thus obviating the need for the approval of the district attorney before issuance of process. ²

Upon review, we find that the instant case does not present circumstances which constitute a "clear and present danger" within the meaning of Rule 133. Consequently, we reverse and remand for the trial court to determine whether to approve the private criminal complaint, pursuant to Pa.R.Crim.P. 133(b)(2). The facts of this case were summarized by the trial court in the opinion and order of July 23, 1990, as follows:

On December 9, 1989, an altercation occurred in Bushkill Township between petitioner, various members of his family, and the three men named in the complaints. Petitioner contends that the three individuals appeared at his residence and remained on the premises after actual communication against their presence was made by him, thus, the three individuals committed defiant trespass as defined in 18 Pa.C.S.A. § 3503(b)(1)(i). Additionally, petitioner alleges that the three men kicked and punched him attempting to cause serious bodily injury and thus, they committed simple assault under 18 Pa.C.S.A. § 2701(a)(1) and aggravated assault under 18 Pa.C.S.A. § 2702(a)(1). Finally, petitioner claims that the men's actions constituted harassment under 18 Pa.C.S.A. § 2709(1).

Chief Kostenbader was called to the scene of the incident for other reasons. After arriving at petitioner's residence, Kostenbader testified that he separated everyone involved and had everyone go to the police station so that he could get their statements. Kostenbader did not press charges against anyone involved. Subsequently, petitioner and his mother submitted private criminal complaints under Pa.R.Crim.P. 133.... The assistant district attorney declined to prosecute believing that the cases lacked prosecutorial merit. The petitioner now seeks independent review of that decision from this court.

(Trial Court Opinion, pp. 1-3).

On July 23, 1990, the trial court permitted the complaints to be filed without approval of the attorney for the Commonwealth, concluding that the complaints constituted charges that involved a "clear and present danger to any person or to the community" under Rule 133(a). This appeal followed.

First, we must determine whether the trial court erred in concluding that a "clear and present danger to any person or to the community" existed within the meaning of Pa.R.Crim.P. 133(a) under the facts of this case. Pa.R.Crim.P. 133 states in pertinent part:

(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 without unreasonable delay.

(b) If the attorney for the Commonwealth

(1) Approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;

(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; ...

Instantly, the assistant district attorney declined to prosecute this action stating that the case "lacked prosecutorial merit." The affiant was then entitled to an independent review of that decision by the Court of Common Pleas as provided in Rule 133(b)(2). As stated in the trial court's opinion, the District Attorney's decision not to prosecute was based upon:

... his belief that petitioner was not really hurt, since he left the hospital before being treated; Kostenbader's contention that the incident was a "mutual free for all" and no one was assaulting anyone; statements of various witnesses were in conflict; the three alleged assailants cooperated by providing full written statements; and the fact that the police decided not to prosecute.

(Trial Court Opinion, p. 3).

The trial court determined both that the testimony of the affiant and witnesses established a prima facie case of aggravated assault and that this was "a charge involving a clear and present danger to a person." The court found support for its decision in Justice Larsen's concurring opinion in Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764.

Benz involved the accidental shooting of an individual by an off-duty police officer during a scuffle. A coroner's jury recommended that Officer Benz be charged with voluntary manslaughter. The District Attorney did not file charges because the evidence supported the claim that the shooting was accidental. Judicial review was sought and the court denied approval of the complaint concluding that the district attorney did not abuse his discretion by not prosecuting. The Supreme Court reversed finding that there was sufficient evidence to establish a prima facie case. ³

Justice Larsen, in his concurring opinion, stated that:

[T]he approval of a private criminal complaint by a district attorney or a judge of the court of common pleas is only necessary where the offense charged does not involve a clear and present danger to any person or to the community. In all other cases, i.e., those involving charges that present a clear and present danger to any person or to the community, the district attorney does not act as a buffer between the private complainant and the issuing authority. Thus, upon the filing of a private criminal complaint involving acts which constitute a clear and present danger to any person or to the community, the issuing authority must conduct a preliminary hearing. As this case involves a charge of homicide, the approval of the district attorney pursuant to Rule 133 was not necessary.

Benz, 523 Pa. at 211-212, 565 A.2d at 769.

This seems to have implied that the crime of homicide necessarily involves a "clear and present danger." However, the concurring opinion does not provide a working definition of the phrase. It would be impractical to conclude from the above paragraph that any crime involving violence constitutes a "clear and present danger" and is therefore an exception to the rule requiring approval of the attorney for the Commonwealth. Such an interpretation would effectively usurp the prosecutorial discretion of the District Attorney in deciding when to prosecute an action.

The District Attorney's function is to represent the Commonwealth in criminal prosecutions. The District Attorney exercises this responsibility by first evaluating complaints to determine whether criminal charges should be brought against an individual. See Petition of Piscanio, 235 Pa.Super. 490, 490, 344 A.2d 658, 660 (1975). The private prosecutor, even if he or she was the victim, "has no legitimate interest, other than as a member of the general public, in seeing a violator of the laws brought to justice by the Commonwealth and punished for his misdeeds. If a private prosecutor feels individually harmed his remedy is a civil suit for damages." Id., 344 A.2d at 661-62. It would make little sense to grant to the attorney for the Commonwealth broad prosecutorial discretion in his role as advocate for the Commonwealth, only to allow private affiants the ability to file complaints without the approval of the District Attorney whenever an alleged victim makes out a complaint involving some type of violent act.

Our task, then, is to determine under what circumstances a "clear and present danger to any person or to the community" exists and when approval of the attorney for the Commonwealth need not be sought. The phrase "clear and present danger" was coined by Justice Holmes in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, 473 (1919). It was used in the context of government restraint on the freedom of speech and required a determination of "whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." Schenck, 249 U.S. at 52, 39 S.Ct. at 249.

Justice Holmes's test required a weighing of the evil threatened against the Constitutional right which would be abridged. The risk of harm must, therefore, be substantial. In discussing the line of cases which have applied the "clear and present danger" test, the Supreme Court, in Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), stated that "[w]hat finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished." Bridges, 314 U.S. at 263, 62 S.Ct. at...