Bomar, A. v. Fox, M.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2017
• Docket: Bomar, A. v. Fox, M. No. 902 WDA 2015
• Status: Unpublished

Opinion

J-S03001-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ARTHUR BOMAR IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

MARJORIE J. FOX, DISTRICT ATTORNEY, GREENE COUNTY

Appellee No. 902 WDA 2015

Appeal from the Order Dated May 11, 2015 In the Court of Common Pleas of Greene County Criminal Division at No(s): 34 Misc. 2014

BEFORE: OLSON, SOLANO and STRASSBURGER*, JJ.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2017

Appellant, Arthur Bomar, appeals from the order entered on May 11,

2015 in the Criminal Division of the Court of Common Pleas of Greene

County that affirmed the district attorney’s denial of Appellant’s private

criminal complaint. We affirm.

Appellant is currently incarcerated as a capital offender at the State

Correctional Institute in Greene County (SCI-Greene). In March 2016,

Appellant filed a private criminal complaint with the office of the district

attorney of Greene County. The complaint alleged that on March 11, 2015,

Appellant submitted a telephone slip to prison officials allowing him to

telephone his attorney. As the pre-arranged time for the call approached,

Appellant asked a corrections officer to allow him to use the telephone.

Appellant, who is an African-American and practicing Muslim, alleged that

* Retired Senior Judge assigned to the Superior Court. J-S03001-17

the corrections officer, a Caucasian, refused to allow Appellant to make the

call and directed racial epithets toward Appellant.

Based upon this incident, Appellant asked the district attorney’s office

to charge the corrections officer with various offenses, including official

oppression (18 Pa.C.S.A. § 5301), ethnic intimidation (18 Pa.C.S.A. § 2710),

and harassment (18 Pa.C.S.a. § 2709). On April 1, 2015, the district

attorney’s office forwarded a letter to Appellant advising that, in its

discretion, the office had disapproved Appellant’s complaint. The letter also

suggested that Appellant contact the Department of Corrections’ Office of

Special Investigations and Intelligence, which was established to investigate

inmate complaints, regarding his grievance.1 On or about April 17, 2015,

Appellant filed a petition asking the trial court to review the district

attorney’s disapproval of the complaint pursuant to Pa.R.Crim.P. 506.

Finding no prosecutorial abuse of discretion, the trial court affirmed the

district attorney’s action by order dated May 11, 2015. Appellant lodged this

appeal from that order.

Appellant challenges an order affirming the district attorney’s denial of

a private criminal complaint. In such cases, we determine whether the trial

court abused its discretion or committed an error of law. In re: Private

____________________________________________

1 In his appellate brief, Appellant alleges that he filed a complaint with the Office of Special Investigations and Intelligence “immediately after the incident.” Appellant’s Brief at 5.

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Complaint of Owens, 810 A.2d 172, 175 (Pa. Super. 2002), appeal denied,

821 A.2d 587 (Pa. 2003). The trial court's obligations in addressing a

district attorney's disapproval of a private criminal complaint are as follows.

Where the district attorney's denial is based on a legal evaluation of the evidence, the trial court undertakes a de novo review of the matter. Where the district attorney's disapproval is based on policy considerations, the trial court accords deference to the decision and will not interfere with it in the absence of bad faith, fraud or unconstitutionality. In the event the district attorney offers a hybrid of legal and policy reasons for disapproval, deference to the district attorney's decision, rather than de novo review, is the appropriate standard to be employed. On appeal, this [C]ourt is limited to determining whether the trial court abused its discretion.

In re: Private Complaint of Owens, 810 A.2d at 175-176 (internal

citations omitted).

Appellant raises three issues in support of his claim. In his first issue,

Appellant asserts that the trial court erred in failing to undertake de novo

review since Appellant’s rendition of the evidence was legally sufficient to

establish prima facie causes of action. See Appellant’s Brief at 8. We

disagree with Appellant’s position. The April 1, 2015 letter from the

prosecutor neither discussed nor assessed the evidence set forth in

Appellant’s complaint. Instead, the letter referred Appellant to the Office of

Special Investigations and Intelligence, if he sought further investigation.

This suggestion is substantially inconsistent with Appellant’s assertion that

the district attorney’s office concluded that Appellant’s evidence was

insufficient. Moreover, the trial court affirmed the prosecutor’s disapproval

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of Appellant’s complaint after finding that “[t]he Commonwealth did not

abuse its discretion[.]” Trial Court Opinion, 5/11/15, at 2. This finding

strongly suggests that the trial court believed that the district attorney

offered a policy-based determination that it would not be in the best interest

of the Commonwealth to prosecute the alleged offenses. Since de novo

review is appropriate only where the trial court determines that the

prosecutor’s decision is solely the product of a legal conclusion, there is no

merit to Appellant’s first issue. See Commonwealth v. Cooper, 710 A.2d

76, 80 (Pa. Super. 1998).

In his second issue, Appellant asserts that the trial court erred in

denying independent review since the prosecutor’s letter failed to articulate

a clear statement of the policy upon which the disapproval decision was

based. See Appellant’s Brief at 10. Again, we disagree. Here, the district

attorney exercised her discretion in declining to pursue charges against the

corrections officer. Instead, without passing upon the substantive merit of

Appellant’s accusations, the prosecutor referred Appellant to the Office of

Special Investigations and Intelligence, an agency within the Department of

Corrections established to investigate inmate complaints. The underlying

policy premise of the district attorney’s actions is that the Office of Special

Investigations and Intelligence may be better situated than the county

district attorney’s office to investigate and pursue complaints from inmates

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concerning offenses committed within our state correctional facilities. 2 This

is a valid policy reason for the district attorney's decision. See Cooper, 710

A.2d at 81 (availability of adequate civil remedy represents valid policy

reason for rejecting private criminal complaint). There is no evidence of bad

faith, fraud, or unconstitutionality. Accordingly, the trial court did not abuse

its discretion in affirming the denial of prosecution.

Appellant’s final issue alleges that the office of the district attorney

harbored an adverse bias against Appellant and his claims because of his

race and his status as an inmate. Appellant, however, fails to develop these

claims with appropriate citation to the record or pertinent authorities. See

Pa.R.A.P. 2119(a) (requiring appellant to support his or her argument with

pertinent analysis, including citation to and discussion of relevant authority

and facts of record). Hence, we constrained to find that Appellant has

waived appellate review of these issues.3 See Pa.R.A.P. 2101 (allowing

quashal or dismissal where defects in brief are substantial).

Order affirmed.

2 In this connection, we note that Appellant’s criminal complaint alleged that the corrections officer’s conduct was in violation of, among other things, the Department of Corrections’ Code of Ethics and applicable sections of departmental regulations. See Appellant’s Criminal Complaint, 3/16/15. 3 For similar reasons, we find Appellant has waived review of the due process claim he raises in his reply brief.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2017

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