Maloney, In re

• Decision Date: 27 January 1994
• Citation: 431 Pa.Super. 321,636 A.2d 671
• Parties: In re Larry M. MALONEY. Appeal of Larry M. MALONEY.
• Court: Pennsylvania Superior Court

Page 671

636 A.2d 671

431 Pa.Super. 321

In re Larry M. MALONEY.

Appeal of Larry M. MALONEY.

Superior Court of Pennsylvania.

Argued Dec. 8, 1993.

Filed Jan. 27, 1994.

Gregory T. Moro, Bloomsburg, for appellant.

Before ROWLEY, President Judge, and WIEAND and BROSKY, JJ.

WIEAND, Judge.

Larry M. Maloney sought to file a private criminal complaint, pursuant to Pa.R.Crim.P. 133, against Dr. Mark Pyles, charging Pyles with aggravated assault, simple assault, recklessly endangering another person and making a terroristic threat. The District Attorney of Columbia County refused to approve Maloney's complaint. In support of his action, the District Attorney cited insufficient evidence, insufficient probable cause and insufficient corroboration. Maloney then petitioned the Court of Common Pleas of Columbia County to approve a private criminal complaint. The court, after hearing, entered an order affirming the District Attorney's dismissal of Maloney's private criminal complaint. This appeal followed.

The charges which appellant wanted to bring against Dr. Pyles arose from an incident which had occurred at or about 2:55 p.m. on October 24, 1992. As appellant and a friend were driving north on Route 93 in Briar Creek Township, Columbia County, appellant observed a vehicle following him at a distance which he deemed inadequate. After the following car had remained close for the next mile and a half, appellant stopped his vehicle in the middle of the highway and, while blocking traffic, got out of the car and approached the following vehicle, with hands in the air and shouting, "What the hell is the problem?" Dr. Pyles, the driver of the following vehicle, pointed a gun at appellant through the windshield of his car and said, "Get the fuck out of here." Appellant thereupon returned to his car. When Dr. Pyles passed his vehicle, appellant followed and obtained the number of the license plate. Both state and township police, upon being told of the incident, declined to file charges.

Approval of private criminal complaints is required by Pa.R.Crim.P. 133, which provides as follows:

(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;

(3) Does not approve or disapprove within a reasonable period of time, the affiant may file the complaint on a separate form with the issuing authority, noting thereon that a complaint is pending before an attorney for the Commonwealth. The issuing authority shall determine whether a reasonable period has elapsed, and, when appropriate, shall defer action to allow the attorney for the Commonwealth an additional period of time to respond.

Regarding this rule, the Superior Court has observed:

In determining whether to approve or disapprove a private criminal complaint, the district attorney may rely on either a legal assessment of the complaint, or wholly discretionary matters of policy. Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989). When the district attorney rests the disapproval of a private criminal complaint on wholly discretionary matters of policy, this Court will not disturb that determination, absent a gross abuse of discretion. Commonwealth v. Pritchard, 408 Pa.Super. 221, 596 A.2d 827 (1991). See also In Re Wood, 333 Pa.Super. 597, 602, 482 A.2d 1033, 1036 (1985) (quoting Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980)) (prosecutorial discretion may depend on policy matters wholly apart from the existence or non-existence of probable cause; courts are wary of supervising exercise of such discretion). When the district attorney bases a dismissal solely on a lack of evidence, however, this Court will apply a de novo standard of review because such a decision is not entitled to the same deference afforded a policy decision not to prosecute, even where a prima facie case exists. Commonwealth v. Benz, supra [523 Pa.] at 208 n. 4, 565 A.2d at 767 n. 4. The special deference extended to a policy decision not to prosecute arises from the deference accorded the discretionary use of executive powers conferred in the district attorney. Id. The power to approve or disapprove private criminal complaints granted under Pa.R.Crim.P. 133 to the district attorney is consistent with the authority which that office regularly exercises in deciding to initiate or discontinue prosecutions. In re Petition of Piscanio, 235 Pa.Super. 490, 494, 344 A.2d 658, 660 (1975).

Commonwealth v. Jury, 431 Pa.Super. 129, 136, 636 A.2d 164, 168 (1993).

The complaint which appellant submitted for approval contained the following affidavit of probable cause:

OCTOBER 24, 1992--APPROXIMATELY 2:55 P.M.

I WAS DRIVING NORTH ON ROUTE 93 IN BRIAR CREEK TOWNSHIP WHEN I NOTICED A CAR TAILGATING ME. THIS CONTINUED FOR APPROXIMATELY 2 MILES. I THEN BRAKED & SLOWED DOWN BECAUSE I WAS APPROACHING MY TURN-OFF. THE AUTOMOBILE PROCEEDED CLOSER. I STOPPED MY CAR--UNAWARE OF A PROBLEM--AND ADVANCED TOWARD THIS VEHICLE. THE DRIVER OF THE CAR, DR. MARK PYLES,

PULLED A GUN, POINTED IT DIRECTLY AT ME & CURSED. I IMMEDIATELY GOT BACK INTO MY CAR. WHILE THE DEFENDANT PASSED ME, I GOT HIS LICENSE NUMBER, ADJ5580.

After careful review, we conclude that the District Attorney could properly find the absence of cause to prosecute Dr. Pyles for aggravated assault in violation of 18 Pa.C.S. § 2702(a)(1) or (4), simple assault in violation of 18 Pa.C.S. § 2701(a)(1) and recklessly endangering another person in violation of 18 Pa.C.S. § 2705. However, there was probable cause and also prima facie evidence to support a prosecution for simple assault under 18 Pa.C.S. § 2701(a)(3) and making a terroristic threat under 18 Pa.C.S. § 2706.

The Crimes Code, in pertinent part, defines the crimes of simple and aggravated assault as follows:

(a) Offense defined.--A person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; [or]

....

(3) attempts by physical menace to put another in fear of imminent serious bodily injury.

18 Pa.C.S. § 2701(a)(1) and (3); and:

(a) Offense defined.--A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [or]

....

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon....

18 Pa.C.S. § 2702(a)(1) and (4).

In Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d 183 (1993), the Superior Court observed that "the mere act of pointing a gun at another person is not sufficient to support a conviction for aggravated assault. Something more is required in order to establish a specific intent to cause injury to the person at whom the gun is being pointed." Id. at 370, 627 A.2d at 187. However, the act of pointing a gun at another person "[can] constitute a simple assault as an 'attempt[ ] by physical menace to put another in fear of imminent serious bodily injury.' " Commonwealth v. Savage, 275 Pa.Super. 96, 103, 418 A.2d 629, 632 (1980), quoting 18 Pa.C.S. § 2701(a)(3).

In the instant case, there did not appear to be any evidence that Dr. Pyles attempted to cause bodily or serious bodily injury to appellant. Because there was no actual injury, a violation of sections 2701(a)(1), 2702(a)(1) and 2702(a)(4) required a specific intent to cause injury. See: Commonwealth v. Everett, 408 Pa.Super. 166, 169, 596 A.2d 244, 245 (1991); In the Interest of J.L., 327 Pa.Super. 175, 177-178, 475 A.2d 156, 157 (1984). This intent may not be inferred from the mere act of pointing a gun at another person. Commonwealth v. Sanders, supra; Commonwealth v. Savage, supra.

It does appear, however, that the facts recited by appellant in his affidavit, if proved, would establish a prima facie case of simple assault in violation of 18 Pa.C.S. § 2701(a)(3).

The crime of recklessly endangering another person is defined by statute as follows:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705. To sustain a conviction under this statute, the Commonwealth must prove that the defendant had an actual present ability to inflict harm and not merely the apparent ability to do so. Commonwealth v. Trowbridge, 261 Pa.Super. 109, 115, 395 A.2d 1337, 1340 (1978) (en banc). "Danger, and not merely the apprehension of danger, must be created." Id. Thus, in Commonwealth v. Smith, 292 Pa.Super. 443, 447-448, 437 A.2d 757, 759 (1981), the Superior Court held that, absent evidence a gun held by the defendant was loaded, there was insufficient evidence to sustain a conviction for recklessly endangering another person. It would appear, therefore, that in order to obtain a conviction for recklessly endangering another person, the Commonwealth must " 'prove actual present ability to inflict death or serious bodily harm by showing either that the gun was loaded or the surrounding circumstances were inherently dangerous.' " Commonwealth v. Baker, 287 Pa.Super. 39, 45, 429 A.2d 709, 711 (1981), quoting opinion of the trial court. See also: Commonwealth v. Gouse, 287 Pa.Super. 120, 124, 429 A.2d 1129, 1131 (1981) ...