253 A.3d 722
Pa. Super. Ct.2021Background
- Father (Ajaj) obtained emergency order in Montgomery County giving him sole legal and physical custody; mother left with the two children to Iraq in Aug. 2017 and their whereabouts were concealed.
- Ajaj pursued U.S. Embassy/State Department assistance and filed a private criminal complaint (May 31, 2019) charging mother with interference with custody (18 Pa.C.S. § 2904(a)) and concealment of a child (18 Pa.C.S. § 2909(a)).
- The District Attorney disapproved the complaint on June 19, 2019, citing only "evidentiary issues." Ajaj petitioned the Court of Common Pleas for de novo review under Pa.R.Crim.P. 506(B)(2).
- On the day of the hearing, the Commonwealth for the first time asserted additional policy reasons for disapproval (e.g., general policy against private complaints alleging felonies; caution in criminalizing parental custody disputes; availability of civil/federal remedies).
- The trial court conducted a de novo review of the evidentiary objections, found the private complaint made out a prima facie case, rejected evidentiary/resource concerns, and (under an abuse-of-discretion standard) rejected the Commonwealth’s policy reasons.
- The Superior Court affirmed: no error of law in rejecting evidentiary grounds and no abuse of discretion in rejecting the policy grounds; ordered the Commonwealth to accept and transmit the complaint for prosecution.
Issues
| Issue | Plaintiff's Argument (Ajaj) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether the trial court erred in reversing the DA’s disapproval of the private criminal complaint | Complaint states prima facie case and DA’s listed evidentiary reasons are meritless; review should be de novo | DA acted in good faith; disapproval was proper based on evidentiary and policy grounds; if policy-based, review is abuse-of-discretion | Affirmed trial court: de novo review on evidentiary issues supported reversal; policy reasons also insufficient under abuse-of-discretion review |
| Whether the private complaint made out a prima facie case of concealment/interference | Complaint and custody orders (sole custody, bench warrant) supply sufficient prima facie evidence | Insufficient probable cause: evidence points to mother’s uncles, not mother; affirmative defenses (e.g., fleeing abuse) unresolved | Trial court (and Superior): prima facie case established; custody proceedings and mother’s noncompliance undermine defense claims |
| Whether DA’s policy reasons justify disapproval (e.g., blanket refusal to approve felony private complaints; reluctance to criminalize custody disputes; availability of civil/federal remedies) | Policies are inapplicable or unsupported here; extraordinary facts (bench warrants, court orders, federal interest) justify criminal intervention | Policy supports discretion to decline prosecution; civil/federal remedies available; prosecutorial caution is appropriate | Trial court: Commonwealth failed to identify persuasive, specific policy justification; policy reasons insufficient and untimely; no abuse of discretion shown |
| Whether Commonwealth waived policy arguments by raising them only at hearing | Commonwealth’s late assertion prejudiced Ajaj and undermines genuineness of policy claim | DA can assert policy at hearing; review standard may shift to abuse of discretion | Trial court noted possible waiver but addressed policy claims on the merits; Superior Court affirmed result would be same even under abuse-of-discretion review |
Key Cases Cited
- In re Hamelly, 200 A.3d 97 (Pa. Super. 2018) (private complaint must set forth a prima facie case; DA must investigate properly drafted complaint)
- In re Ullman, 995 A.2d 1297 (Pa. Super. 2010) (standards for private criminal complaints and DA review responsibilities)
- In re Miles, 170 A.3d 530 (Pa. Super. 2017) (distinguishes de novo review for legal disapproval from abuse-of-discretion review for policy-based disapproval)
- In re Wilson, 879 A.2d 199 (Pa. Super. 2005) (abuse-of-discretion standard for reviewing policy-based prosecutorial decisions)
- Commonwealth v. Brown (Brown I), 669 A.2d 984 (Pa. Super. 1995) (trial court review limits and prosecutor’s policy justification requirements)
- Commonwealth v. Brown (Brown II), 708 A.2d 81 (Pa. 1998) (affirming that bad faith is required to overcome prosecutorial discretion; defines "bad faith")
- Commonwealth v. Cooper, 710 A.2d 76 (Pa. Super. 1998) (availability of civil remedies can be a legitimate policy reason to decline prosecution)