*1 15 of principles are an statutory construction aid in only deter- mining legislative permitted intent will not be to change Philadelphia meaning legislative the clear of mandate.” Housing v. Authority Commonwealth Pennsylvania Board, Labor Relations 576, 581, 508 Pa. 294, 499 A.2d (1985) (Nix, C.J.). Consequently, language clear, statute is it may disregarded not be under the guise Mandarino, Causer of presumed legislative intent. v. 564, unfortunate, It is appellee contends, as the legisla- ture, guided by intent or has neglect, chosen to certain exclude a providers class service from coverage under section this of the No-Fault Clearly Act. this is not a case in provider which service has failed meet accred- itation or licensing requirements. As we realize today, certain professions do not have to fulfill responsibili- similar instances, ties. in some Consequently, victims may have to forego treatment from such individuals/facilities or incur expense such treatment themselves. While it is true legislature may not have envisioned situation this confronting are today, court we nevertheless bound to interpret the law legislate.
Order affirmed.
Appeal of James PAGE. Superior Pennsylvania. Court of
Argued Oct. 1985.
Filed March 1986. *2 Eakin,
John M. District Attorney, Carlisle. SPAETH, Before Judge, BROSKY, President ROW LEY, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, MON TAMILIA, TEMURO and JJ.
McEWEN, Judge:
We are here called determine whether a *3 complainant has appeal standing from a trial court order sustaining disapproval1 the the attorney district of a private and, so, criminal complaint whether, in the instant case, the trial court its abused discretion or committed an error of by concluding law that the district attorney proper- ly exercised his in discretion disapproving private the crimi- nal complaint filed by appellant.
Appellant, James an Page, Huntingdon inmate at the Institution, State Correctional private filed a criminal com- plaint against 7, Chester B. Muroski on 1983, January had, alleging earlier, that Mr. Muroski fifteen months on 133(B)(3)(ii) provided 1. Pa.R.Crim.P. as follows: Complaint: Rule 133. Police and Private Affiant (B) PRIVATE COMPLAINTS: [******]
(3) If the attorney [******] for the Commonwealth text of This Rule was rescinded effective approval pears as Pa.R.Crim.P. complaint form and return it to the affiant. Thereafter (ii) file disapproves the or now complaint disapproval. rescinded Pa.R.Crim.P. [******] 133(b)(3). complaint, with judge he January of a shall Court 133(B)(3)(ii) currently state 1985. The his reasons on the Common Pleas for the affiant pertinent ap- 24, 1981, Hill Insti- Camp at the State Correctional August crimi- tution, conspiracy, committed the crimes of criminal influence in solicitation, threats and other improper nal matters, obstructing political and administration official oppression. or other function official governmental law later disapproved five months private complaint The on County Attorney’s District Office June the Cumberland complaint any proba- did not set forth because then private complaint cause. filed Appellant ble County pursu- of Common Pleas of Cumberland the Court 133(B)(3)(ii). The trial court reviewed ant Pa.R.Crim.P. affidavit, that concluded cause, failed to state and likewise filing sustaining of the thus of the disapproved attorney. of the district We conclude that the decision bring this and that standing appeal have appellant does attorney concluded that district properly the trial court his discretion. did abuse has no appellant asserts Commonwealth Common appeal this and relies
standing bring Malloy, (1982), wealth Malloy is, however, neither control its support assertion. helpful presented nor to the since it ling Commonwealth The district fundamentally different situation.
Malloy and, after a approved hearing, concluded justice preliminary prima case. None had established a facie Malloy, theless, after it had conducted a trial court transcript testimony preliminary of the of the study *4 corpus habeas proceedings in to initiated hearing, response prima defendants, case determined that a had the by facie charges that be dis and directed the not been established the district discharged. and the defendants When missed dismissing did the order the attorney appeal from complainants pro appeal the undertook charges, a victim/complain Court ruled that ceedings. Superior The proceeded proceedings is not a to the criminal party ant Malloy in the the held quash appeal. to Court attorney, representative district as the state, is the in party plaintiff a prosecution, criminal while the vic- tim/complainant merely is a witness. The victim of an crime, alleged therefore, standing has no a appeal judicial complaint determination that a must be dismissed reason of a failure the Commonwealth to prima a establish case. facie
Unlike the Malloy, question here is not a private complainant has standing appeal after the attor- district ney has approved complaint the court trial has no prima determined that case has been established. facie Rather, attorney the district here did not approve pri- the vate criminal and there has judicial been no determination regarding insufficiency of case against Thus, Mr. Muroski. Malloy distinguishable from the matter we presently which consider.
We also distinguished
Malloy
Wood,
In re:
333 Pa.Su
per.
(1984)
We must now determine whether the trial court abused its discretion or committed an error of law when it decided prosecutor had not acted improperly disapproving appellant. dispute No one would has in deciding broad discretion wheth- “ charge person er with a criminal offense. ‘This
20 Attorney in power determining District
discretionary or prosecution shall be commenced maintained whether policy wholly separate apart on matters of depend well reason, cause. For this from the existence of or interfering attempting have wary courts been exercise of his discre the district supervise ” Wood, In re: controlling criminal prosecutions.’ tion 1036; 601-03, 482 at supra, Pa.Superior Ct. at A.2d Eisemann, Commonwealth quoting Cox, 342 F.2d See U.S. v. 546, 419 denied, (5th Cir.1965), cert. 167, 171 381 U.S. 85 S.Ct. See also Relating 700. A.B.A. Standards L.Ed.2d to the Prosecution Function the Defense Function 3.4. §
Our determination must necessarily discretion commence with an abused his which, in this examination of instance, composed completed of two forms: *6 appears top at
The decision of disap- note that with the page the first cause”. is “no there proved because quite explicit 132(6)(a), sets forth which Pa.R.Crim.P. set forth such a criminal prerequisite apprised the facts that a defendant would summary of charged, provides: the offense the nature of Complaint 132. Contents RULE [*] [*] [*] Sic [*] [*] *7 case, shall (6)(a) [every complaint In a court contain] the defendant sufficient to advise summary of the facts neither the charged, offense but of the nature of the need cited allegedly violated be evidence nor the statute statute a citation of the complaint, in the nor shall violated, itself, compliance a sufficient be allegedly subsection____ with this 132(6)(a). Pa.R.Crim.P. 133(B)(3)(ii), court, Pa.R.Crim.P. pursuant
The trial appellant of complaint the and affidavit reviewed it insufficient was disapproved complaint the because activity. of criminal as it failed to aver facts it affidavit discloses consideration of the [C]areful generalities of solely is insufficient it consists because displays a com- complaint likewise specifics. without alleged any supporting failure to aver facts plete activity. criminal as and affidavit we complaint have reviewed
We 113(B)(3)(ii) to Pa.R.Crim.P. required pursuant are to do disapproval and conclude that [sic] therefore, We, likewise warranted. complaint of this disapprove filing Opinion, Trial 1-2. p. Court trial court that the conclusion of the agree
We
fatally
affidavit are
defective
supporting
due to the
of concerning
absence
factual averments
activity by
Mr. Muroski.
It is incumbent
private complainant
provide
the district attorney with
sufficient facts to enable him to make an informed decision
regarding whether to permit the commencement of criminal
proceedings. While some investigation
allegations
into the
of a
drafted
properly
necessary
order
to enable the district
properly exercise his
concerning
discretion
the decision whether to approve the
investigation
such
is not necessary where the
allegations of criminal conduct contained in
are unsupported by factual averments. Both the district
attorney and the trial court have a responsibility
prevent
of judicial
misuse
and prosecutorial
in pursuit
resources
prosecutions.
futile
Wood,
In re:
supra,
603-04,
at
Order affirmed. private complainant 2. The complaint disapproved whose criminal attorney the district and the Court of Common Pleas for failure to is, course, precluded set forth sufficient filing facts not from a subsequent, complaint amended allege which does sufficient Eisemann, e.g., facts. See Pa.Super. Commonwealth v. (1982); Eisemann, A.2d 1045 Commonwealth v. A.2d 591 concurring and dissent- SPAETH, files a Judge, President opinion. ing
CIRILLO, J., dissenting opinion. files CIRILLO, J., dissenting opinion. ROWLEY, J., joins in this decision SPAETH, Judge, participated President his term on the Court. expiration the before dissenting: and SPAETH, concurring Judge, President complainant has private that a majority I with the agree upholding decision a trial court’s standing appeal to I complaint. dis- approve to the attorney’s refusal district however, scope of regarding the the agree majority, complaint, to review the responsibility attorney’s the district court’s review on of the trial also, regarding scope and approve refusal to attorney’s district from the appeal allege must complainant privant The holds that a majority make an attorney to the district sufficient facts to enable at 1317. prosecute. Maj. “informed decision” on whether that a requirement to a equivalent requirement I find this cause, in my and complaint allege must private I should hold that requirement. that is too strict opinion, investigate obliged the district allege suffi- complaint does though even complaint it is prosecute; probable cause cient facts to show nature believe, general states the complaint I enough, of the offense. place time and court, appeal on that the trial further holds majority approve attorney’s refusal from the district case, determine whether the only had in this I that the court cause. believe alleged probable affidavit, determined, hearing either or should have investigated whether determination, should further then, made that having refusal to have determined I of discretion. gross was a abuse approve *9 this to the trial court with remand case should therefore to make those determinations. instructions Appeal to Standing
Appellant’s as opinion holds majority’s I so much join decision appeal has to the trial court’s appellant standing approve appel- to refusal upholding lant’s criminal Attorney’s
The to Duty Investigate District
-a- holds that majority private complainant provide a to upon is incumbent [i]t him to sufficient facts to enable permit decision whether to regarding make an informed some proceedings. the commencement of criminal While a investigation allegations into the drafted properly necessary in order to enable the district complaint may be concerning his discretion properly exercise investigation such approve of criminal conduct necessary allegations where unsupported factual contained are averments.
Maj. at 1317. many require this does not in so terms While statement cause, allege I private complaint probable a must am unable view, In interpret majority’s it in other way. allegations criminal com- “investigation [of necessary” complaint alleges is not unless the “suffi- plaint] justify cient facts” to decision to “commence[] com- proceedings may Since criminal proceedings.” cause, American Associ- only see Bar upon menced Justice, Func- for Criminal The Prosecution ation Standards 3-3.9, that, (2d 1982) according it to the tion ed. follows § attorney’s responsibility receipt a district majority, reading is limited private complaint cause determining alleges probable prosecute; whether it does cause is allege probable if the only *10 attorney obliged In investigate view, imposes this too my requirement private strict a on a complainant, and takes too limited a view of a district attorney’s responsibilities. a district a criminal com- attorney private
When receives plaint, probable the issue of whether states law; pure cause is a issue of its resolution no sense of any attorney’s involves exercise the district discretion. to do about contrast, In complaint— issue of what it, it, to approve disapprove investigate whether or its an exercise of the district allegations necessarily involves — discretion. is attorney’s complaint, This true wheth- cause, or er the does does not state and filed a a by private police whether it has been citizen or officer. prosecution that the initiation of a a
It used victim, However, or his or friends. family matter for law, unlike, of the idea that the criminal acceptance with the the law of contracts or is to vindicate example, property, for interests, fun- rather than this situation was public the decision to damentally changed. require Now we attorney, or not be made as a prosecute official in the responsible public trained law. “safety a sort of valve”
prosecution,
only
or
does not act.
attorney
for those situations where the district
believe,
gain
In
we
we
some assurance that both
way,
this
rights
public
protected.
of the accused and of the
will be
Thus,
the most
of the district
among
important
com-
responsibilities
investigate
are the
responsibilities
them,
determine
there is
plaints,
substance
See
initiated.
prosecution
determine whether
should be
generally
American Bar Association Standards for Criminal
(2d
1982)
Justice, The Prosecution Function
ed.
3-3.1 and
§§
accompanying commentary;
(although prosecutor ordinarily
police
investigation,
on
for
he has “an affirmative
relies
investigate suspected illegal activity
when
responsibility
State
dealt
other
adequately
agencies”);
it is not
with
Oil,
v. International Union
Koppers
ex. rel.
Chemical
—
(1982)
—,
Workers,
298 S.E.2d
and Atomic
W.Va.
also,
attorney);
People
(discussing
prosecuting
role
see
(1964)
Pohl,
Ill.App.2d
(prosecut-
district holds, complaint whether the only look to see majority not, cause, it. The probable disapprove it does states whether, though attorney must further ask even district cause, some not it warrants complaint does state course, investigation such an Of after investigation. the com- attorney may disapprove still decide disclose, may for the not plaint, investigation is but that it without inartfully expressed, is substance; other reasons that warrant a or there be the exercise attorney, decision discretion, prosecute. not to are with these consistent procedure rules of criminal
Our contain only that a they require for principles, case, of the facts sufficient to summary a court “[i]n charged of the offense of the nature the defendant advise 132(6)(a). ...” Pa.R.Crim.P.
Our cases hold that “a
or information must
contain all the essential elements of the offense sought
charged,
and,
if it
be
fails
this respect,
it
is not
them,
sufficient
the indictment
supply
because a
defendant
required
should
charge
answer a
from,
to,
different
and unrelated
the one for which he
was arrested and held to bail.” Commonwealth v. Mus
to,
300, 302-03,
307,
348 Pa.
(1944)
(STERN,
Commonwealth,
v.
Harger
Department of
J.).
Accord:
Transportation, 142,
Pa.Cmwlth.
-b- view, In my should have investigated appellant’s complaint. majority The is of course entirely correct that the complaint allege probable fails to cause. not, however, complaint is entirely devoid of factual (Chester allegations. persons Two are identified B. Muro- Marks), 24, 1981), ski and R.M. a date is stated (August and (the Hill), place State Correctional Institution at Camp which, discloses, from the affidavit appellant filing as an gist inmate. The appears Muroski, B. in “acting be Chester his official capaci- ty”, “threatened unlawful harm to R.M. in Marks” order to Marks “terrorize” appellant have and inter- “Physically] appellant’s] right to freedom of speech and fer[e] [with I meager are, mail.” believe these allegations, they as were adequate accused, to “state the offense committed the general place and nature and time and of the of- fense____” Wilkinson, Commonwealth v. supra. course,
Of there no allegations; substance to the false, they may very entirely nothing well be I say this opinion intimates the least confidence in them. The issue, however, it, I at least as see is whether a district attorney receiving complaint would be in con- justified cluding, concluded, as the trial court and the majority have allegations cause, because the do not state no investigation I freely was warranted. I acknowledge that issue, have found this a difficult particularly resolv- ing it differently majority may well have the better of Nevertheless, argument. I myself persuaded have been to the conclusion that the sufficient re- quire the district áttorney investigate of an because additional fact not so far gives mentioned that this case a dimension. particular mayWe take judicial notice of the fact that on the date the alleged occurred, criminal activity B. Chester Muroski was the District Attorney of Luzerne *13 Manual at and that
County, Pennsylvania see filed, was he was a on the Court judge when the county, having Pleas of that elected on of Common been 3, 1981, 441. see 106 Manual at Pennsylvania November Thus, presented Attorney the situation to the District of filed, County, appellant’s complaint Cumberland when ap- was that an inmate of a state correctional institution peared alleging to be some sort of assaultive conduct one Marks, alleging R.M. and to be further that this conduct the former District Attorney, was attributable to who had judge become a of the Court of Common Pleas of Luzerne I commented County. already have confidence reposes that our of criminal in the district system justice public as a official. To attorney responsible deserve confidence, appearance a district “should avoid the reality respect or of a conflict of interest with to his official Standards, ABA duties.” 3-1.2. “It is of the supra, § importance prosecutor utmost that the avoid in participation implication a case in circumstances where of any partiality Id., integrity cast a shadow over the of his office.” Miller, Commentary; Commonwealth v. (en 525, (1980) banc) (we rely upon integrity
of district
not to
in
attorneys
participate
prosecutions where
there
appearance
impropriety);
would be
Common-
Toth,
(1974) (district
wealth v.
455 Pa.
The Trial Court’s Responsibility did make an It well be that the may very attorney district investigation appellant’s or that if he did even not, he had sufficient reasons approving for not the com- plaint. difficulty The is that we do not know the basis of the district attorney’s approve complaint. refusal the The reason we do not know is because the trial court misconceived its function on appellant’s appeal from the district attorney’s approve complaint refusal the mis-—a conception given precedential by majority’s opin- force the ion.
The issue before the in refusing trial court was whether approve the the attorney grossly district had Wood, See In re his discretion. 597, abused 333 Pa.Super. v. Commonwealth (1984), 482 A.2d quoting Eisemann, 543, 545-47, 419 A.2d 592-93 Williamson, see also Commonwealth v. (1980); 298 Pa.Su- per. court, however, A.2d 669 The trial looked only to see whether the complaint alleged probable cause. far as least, So the record discloses at the trial court thus, conducted no hearing; order, of its support the trial court stated:
[Cjareful consideration of the affidavit discloses that it is insufficient because it generalities consists solely with- out specifics. complete likewise displays failure to aver facts supporting alleged the activity.
From this it is evident the trial regarded court issue of abuse of discretion and the issue of probable cause as the same issue under words, different names —in other the court believed that if a private criminal complaint fails to aver facts that if accepted, establish cause to believe that a crime committed, has been then a district attorney may, alone, for that disapprove reason the com- plaint. This position is the adopted now majority.
The issues of probable discretion, cause and abuse however, are not the same. As I attempted explain, have though even a complaint cause, does allege probable not responsibility had a still, may have the district view, Therefore, among my investigate ask, appeal must on from a the trial court questions private complaint, approve refusal to alleging probable complaint, although are: Does to “state the cause, sufficient facts allege nevertheless accused, general nature committed offense of the offense”? Commonwealth place and time facts, Wilkinson, allege If does such supra. did, If he was his investigate? district attorney did the of discretion? And prosecute gross not to abuse decision investigate, did not finally, *15 investigation an a prosecute making decision not to without of discretion. gross abuse
I that the trial court must suggest do not mean to hearing after particular procedure. to a Whether conform affidavit, however, make a deter- the court should or on of these questions. mination each I that the trial court is to suggest Neither do mean to attorney’s a district rigid guidelines by which establish dispute that a district beyond conduct is to be It is judged. discretion, v. Eisem- attorney has broad Commonwealth 1045, (1982), it is 16, 20, and ann, 308 453 function either to reviewing not a court’s emphatically It decisions. second-guess attorney’s or to dictate a district true, however, court does have the that equally the dis- to assess responsibility, and therefore power, gross the standard of abuse attorney’s against trict conduct Eisemann, supra. v. of discretion. Commonwealth of discretion gross what constitutes a abuse Obviously, Everything formula. will simple cannot stated be and the district’s facts of the case depend particular on act, in failing or acting, articulated reasons for attorney’s a court example, circumstances. For particular in a district of discretion gross find abuse see, Yick v. discriminatory prosecution, e.g., Wo pattern (1886); 1064, 220 356, 6 30 L.Ed. 118 U.S. S.Ct. Hopkins, v. (7th Cir.1973); Falk, 616, 479 F.2d 618 United States v. 12, 225 Co., App.Div.2d 16 v. Daw’s People Drug Utica
33
(1962);
prose-
128,
retaliatory
The fact not, however, the court from the does relieve discretion definition. As the court Medi- to undertake a obligation SEC, 432 F.2d Rights Human cal Committee for “The decisions of this court have (D.C.Cir.1970),stated: discretion’ phrase ‘prosecutorial allowed the never pro- magical automatically incantation which treated as Saxbe, Nader v. a shield for arbitrariness.” See also vides (“The recognized the long n. 19 law has supra at 680 discretionary au- judicial usurpation of distinction between constitution- statutory review of the thority judicial Vorenberg, authority.”). generally al limits to See Power, Prosecutorial 94 Harv.L.Rev. Decent Restraint of discretion” and (1981) (noting the “evils of broad *16 prosecutorial of deci- calling judicial for increased review sions); Note, Prosecutorial Discretion: Reviewability of (1975) Prosecute, 75 Colum.L.Rev. Failure to deci- scope prosecutor’s of of (expanding the courts’ review how to telling prosecutor not tantamount to the sions is office). conduct his instruc- to the trial court with
I should therefore remand refusing approve appel- in to determine whether tions to his attorney grossly the district abused complaint, lant’s discretion.
CIRILLO,
dissenting:
Judge,
conclusion that
The majority’s
I
dissent.
respectfully
solely
is based
standing
pursue prosecution
to
appellant has
distinction between this case and Com
perceived
a
Malloy,
monwealth v.
In held complainant we that a has no to the standing appeal attorney’s absent district Malloy, happened consent. It so in the that district attor- ney originally approved complaint, the but when it was dismissed the court for failure to out subsequently make case, prima a facie chose appeal not to unique that decision. was procedurally It the sense wherein, it did not the more typical involve situation after the district attorney dismisses the it is filed for complainant judicial By review. the majority’s Malloy’s analysis, “appellant, conclusion that as or victim witness, lacks status in this criminal ‘party’ prosecution standing appeal”, only applies has no to to cases [and thus] bearing procedural posture. same Malloy was light,
Read in never any intended to be way. Regardless limited in this of court a action on disposition private complaint, a fact sought remains prosecutions rectify injuries are society. exists, aggrieved party, one is the Com- monwealth. The victim of the crime a alleged may pursue civil remedy. Malloy phrased issue in
Admittedly, embrace the procedural of the “whether a posture case: victim/com- plainant standing appeal, has the consent without district attorney, judicial determination dismissing However, complaint.” opinion balance contains nothing to support procedur- conclusion that different setting Indeed, al dictate a result. contrary would we summarized the law various jurisdictions only support our very general conclusion standing that victims have no to appeal, period: citizen standing lacks to contest “[A] policies of the when prosecuting he himself prosecuted neither nor prosecution threatened with ... jurisprudence least, American at citizen lacks a *17 judicially cognizable interest in prosecution or nonprose-
35 305, at 450 Id., Ct. Pa.Superior another.” cution of D., 693, U.S. at Linda R.S. v. Richard quoting 1146, 1149, 35 L.Ed.2d 93 S.Ct. it is that the principle, stands for one Clearly, Malloy to determine authority has exclusive attorney given in a case. This is called for prosecution right to complainant’s authority tempered only by is common so pleas a court of by the decision reviewed have attorney may the district abuse of discretion any important complainant to a Such review will be discovered. discretion, has in fact abused his attorney the district when nonetheless, of common determination pleas’ the court but on the criminal complainant line for the the end of the side. weight attach to the fact great
The seems to majority in so far as to pleas Malloy court of common went that the existed, whereas the that no facie case prima establish case found that the reviewing only court this cause, i.e., sufficiency of the case not show did view, In indicates only not this my itself was considered. appealable inter- complainant had a Malloy greater that enough proba- est; attorney at least there the district found event, In the com- prosecution. cause to initiate ble securing only point interest stretches to the plainant’s did that determination judicial disposing abuse discretion reasoning compels The same me to the conclusion In (1984), Wood, 482 A.2d re decided, premise. a false being it too based wrongly holding stated properly Malloy’s court Wood standing, then a tortured complainants lack but Wood, In the dis- standing anyway. found such analysis pursue prosecution, whereupon chose not to trict private complaint filed his with the court of complainant reasoned that since pleas for review. Our Court common he was a “party himself filed the complainant The result is appeal. and could therefore take an below” procedural absurdity: Malloy -type less than a nothing *18 complainant, who does not have to file the him- self because the Commonwealth initially prosecute, chose to must hope that the district attorney chooses to appeal dismissed; case is subsequently -type Wood complain- ant, contrast, has the right appeal simply because the decision prosecute not to forced the com- plainant to file the complaint with the court on his In own. short, the right appeal hinges on nothing more than the mere happenstance of the order in which the events unfold.
A complainant is only “party below” as concerns the judicial initiated, he review himself which is separate and distinct from subsequent criminal prosecution no matter caption how the reads. In the actual prosecution, complainant will never be anything more than prosecuting witness, irrespective of right to seek judicial review of the district attorney’s disposition of In my view, when the case is “Commonwealth versus The Ac- cused”, parties two take an appeal: the Common- wealth, and the accused. I
Accordingly, dissent.
ROWLEY, J., joins.
Argued Sept. 1985.
Filed March 1986.