In re Ajaj

Citation288 A.3d 94
Decision Date19 January 2023
Docket Number55 MAP 2021
Parties IN RE: Private Complaint filed by Luay AJAJ Appeal of: Commonwealth of Pennsylvania
CourtUnited States State Supreme Court of Pennsylvania

288 A.3d 94

IN RE: Private Complaint filed by Luay AJAJ

Appeal of: Commonwealth of Pennsylvania

No. 55 MAP 2021

Supreme Court of Pennsylvania.

Argued: March 9, 2022
Decided: January 19, 2023

Tracy Saylor Piatkowski, Esq., Michael F. J. Piecuch, Esq., PA District Attorneys Association, Joshua D. Shapiro, Esq., Pennsylvania Office of Attorney General, 16th Floor, Strawberry Square, Harrisburg, PA, for Amicus Curiae Attorney General Office & PA District Attorney's Association.

Robert Martin Falin, Esq., District Attorney of Montgomery County, Adrienne D. Jappe, Esq., Edward F. McCann Jr., Esq., Kevin R. Steele, Esq., Montgomery County District Attorney's Office, for Appellant.

Scott Christian McIntosh, Esq., Lewis McIntosh & Teare, LLC, for Appellee.




Pennsylvania Rule of Criminal Procedure 506 (Rule 506 )1 authorizes private citizens to file criminal complaints against other persons before the appropriate issuing authority.2 Before doing so, however, the private criminal complaint must first be submitted to an attorney for the Commonwealth3 for approval or disapproval. If the attorney for the Commonwealth disapproves the filing of the private criminal complaint with the issuing authority, Rule 506 thereafter permits the private complainant to petition the court of common pleas to review the disapproval decision.

In this discretionary appeal, we consider whether the Superior Court erred when it affirmed a decision by the Court of Common Pleas of Montgomery County, Criminal

288 A.3d 97

Division (trial court), which overturned the decision of the Montgomery County District Attorney (DA). The DA had disapproved the private criminal complaint (Complaint) of Luay Ajaj (Father) against Saja Ibrahim Abdulkareem Al Rabeeah (Mother) for violations of 18 Pa. C.S. § 2904(a) (interference with custody of children),4 and 18 Pa. C.S. § 2909(a) (concealment of whereabouts of a child).5 In so doing, we first consider the proper standard of review courts should apply when reviewing a disapproval decision under Rule 506(B)(2). In that regard, we hold that a reviewing court may only overturn a disapproval decision under Rule 506(B)(2) if the private complainant demonstrates that the disapproval decision amounted to bad faith, occurred due to fraud, or was unconstitutional. Applying that standard of review here, we conclude that Father failed to demonstrate that the DA's decision to disapprove the Complaint amounted to bad faith, occurred due to fraud, or was unconstitutional, and, consequently, we reverse the Superior Court's order.


We begin with a review of the relevant precedent applicable to private criminal complaints. As noted above, Rule 506 governs the initiation of criminal proceedings and authorizes private citizens to file private criminal complaints against another person with an issuing authority upon the approval of an attorney for the Commonwealth. Pa.R.Crim.P. 506(A). A private criminal complaint must, at the outset, set forth a prima facie case of criminal conduct. In re Wilson , 879 A.2d 199, 211 (Pa. Super. 2005) (en banc). The attorney for the Commonwealth is thereafter required to investigate the allegations set forth in the private criminal complaint and, based on that investigation, render his or her approval or disapproval of the private criminal complaint. Id. In so doing, the attorney for the Commonwealth "has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, ... to decide whether and when to prosecute, and [to decide] whether and when to continue or discontinue a case." Commonwealth v. Brown , 550 Pa. 580, 708 A.2d 81, 84 (1998) ( Brown II ) (plurality opinion) (some alterations in original) (citations omitted) (quoting Commonwealth v. DiPasquale , 431 Pa. 536, 246 A.2d 430, 432 (1968) ). "Thus, the [attorney for the Commonwealth] is permitted to exercise sound discretion to refrain from proceeding in a criminal case whenever he [or she], in good faith, thinks that the prosecution would not serve the best interests of the state." Id. (quoting Commonwealth v. Malloy , 304 Pa.Super. 297, 450 A.2d 689, 692 (1982) ).

288 A.3d 98

In the event that the attorney for the Commonwealth disapproves a private criminal complaint, the complainant may petition the court of common pleas for review of the decision. Pa.R.Crim.P. 506(B)(2). Rule 506(B)(2) is silent, however, on what standard of review the court of common pleas is required to apply when reviewing that decision. In Commonwealth v. Benz , 523 Pa. 203, 565 A.2d 764 (1989) (plurality opinion), a plurality of 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" and "essentially endorsed a de novo review by the [court of common pleas] when a prosecutor's disapproval is based on a legal determination of the sufficiency of the complaint." Brown II , 708 A.2d at 84. "The Benz plurality recognized, however, that when a prosecutor's disapproval is based on policy concerns, a de novo review would be improper: ‘[i]f the district attorney had stated policy reasons to support the decision not to prosecute, this Court would [give] deference ... to such a discretionary use of the executive powers conferred in that officer.’ " Id. (some alterations in original) (quoting Benz , 565 A.2d at 767 n.4 ).

Thereafter, in Brown II , a majority of this Court agreed that "a [court of common pleas] should not interfere with a prosecutor's policy-based decision to disapprove a private complaint absent a showing of bad faith, fraud, or unconstitutionality."6 Id. In so doing, this Court noted that "[a]pplication of this standard recognizes that proper deference must be given to the discretionary decisions of a prosecutor—a member of the executive branch—while acknowledging the authority and responsibility of the judiciary to ensure justice in the criminal court system." Id. at 84-85. A plurality of this Court, in an opinion authored by Justice Nigro, then went on to define "bad faith" as "not simply bad judgment or negligence, but rather ... the conscious doing of a wrong because of ... moral obliquity"i.e. , "a ‘deviation from moral rectitude or sound thinking.’ " Id. at 85 (some alterations in original) (quoting Black's Law Dictionary 139 (6th ed. 1990) and Merriam-Webster's Collegiate Dictionary 802 (10th ed. 1996)). Justice Cappy, on the other hand, indicated in his opinion in support of reversal that "bad faith is shown where the action under review was undertaken with a [fraudulent,] dishonest[,] or corrupt purpose." Id. at 87 (Cappy, J., opinion in support of reversal).

Following this Court's decision in Brown II , the Superior Court "continued to wrestle with a working definition of the appellate role ... in a valiant effort to harmonize what appears to be a divergence in the law with respect to appellate review" of a decision to disapprove a private criminal complaint. In re Wilson , 879 A.2d at 213. As a result, in In re Wilson , the Superior Court summarized the standard that both the Superior Court and the courts of common pleas continue to apply when reviewing a prosecutor's disapproval decision:

288 A.3d 99
Consistent with established Pennsylvania law in general, we now hold that when the district attorney disapproves a private criminal complaint solely on the basis of legal conclusions, the [court of common pleas] undertakes de novo review of the matter. Thereafter, the appellate court will review the [court of common pleas’] 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.

We further hold that when the district attorney disapproves a private criminal complaint on wholly policy considerations, or on a hybrid of legal and policy considerations, the [court of common pleas’] standard of review of the district attorney's decision is abuse of discretion. This deferential standard recognizes the limitations on judicial power to interfere with the district attorney's discretion in these kinds of decisions.

The private criminal complainant has the burden to prove the district attorney abused his[/her] discretion, and that burden is a heavy one. In the Rule 506 petition for review, the private criminal complainant must demonstrate the district attorney's decision amounted to bad faith, fraud or unconstitutionality. The complainant must do more than merely assert the district attorney's decision is flawed in these regards. The complainant must show the facts of the case lead only to the conclusion that the district attorney's decision was patently discriminatory, arbitrary or pretextual, and therefore not in the public interest. In the absence of such evidence, the [court of common pleas] cannot presume to supervise the district attorney's exercise of prosecutorial discretion[ ] and should leave the district attorney's decision undisturbed.

Thereafter, the appellate court will review the [court of common pleas’] decision for an abuse of discretion, in keeping with settled principles

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  • In re Kane, 1958 EDA 2022
    • United States
    • Superior Court of Pennsylvania
    • June 9, 2023
    ...rubric, where the applicable standard of review depended on the asserted basis for the prosecutor's disapproval decision. In re Ajaj, 288 A.3d 94, 109 (Pa. 2023) (emphasis added).[4] Instantly, the District Attorney stated the following reasons for disapproving Appellants' PCCs: 1) they lac......

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