Commonwealth v. Braun

19 Pa. D. & C.3d 572, 1980 Pa. Dist. & Cnty. Dec. LEXIS 99
CourtPennsylvania Court of Common Pleas, Blair County
DecidedOctober 14, 1980
Docketno. 704 of 1980
StatusPublished

This text of 19 Pa. D. & C.3d 572 (Commonwealth v. Braun) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Blair County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Braun, 19 Pa. D. & C.3d 572, 1980 Pa. Dist. & Cnty. Dec. LEXIS 99 (Pa. Super. Ct. 1980).

Opinion

BRUMBAUGH, J.,

—On May 6, 1980 the Blair County District Attorney’s office disapproved the private criminal complaint of Sondra E. McCloskey charging Kurt E. Braun, Tyrone Borough Police Chief, with harassment, simple assault and false imprisonment as the result of an incident which took place at the borough police station on June 4, 1979. Mrs. McCloskey then petitioned this court for approval of the complaint, to which application the district attorney’s office responded and filed a motion to dismiss. Testimony was presented on the issue by Mrs. McCloskey and Assistant District Attorney Walter F. Wall before this court on August 15, 1980.

In determining the guideline applicable to our disposition of the matter we turn first to the rule (Pa.R.Crim.P. 133(B)(3)) governing such private prosecutions, which confers jurisdiction upon us in the following language:

“If the attorney for the Commonwealth . . . (ii) disapproves the complaint, he shall state his 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.”

Unlike the Commonwealth attorney in the first instance, the court in its consideration thereafter is not required to give reasons for either approval or disapproval; in fact, there is no mandate that we even grant a hearing. See Piscanio Appeal, infra, fh.5, at p. 495. Thus our function in the instant matter is distinguishable from a hearing upon appeal, wherein the court is called upon to receive [574]*574evidence anew and to exercise its own completely independent judgment. This distinction seems acknowledged by Mrs. McCloskey’s petition, which requests that we “review the actions of the district attorney.” That our right of review is restricted appears in Com. v. Morris, 267 Pa. Superior Ct. 379, 381, 406 A. 2d 1091, 1092 (1979), quoting with approval Shade v. Com., 394 F.Supp. 1237, 1242 (M.D. Pa. 1975):

“‘[W]hile there may be instances in which the courts would be entitled to review the exercise of prosecutorial discretion, such review is limited to circumstances involving the deliberate use of such factors as race, religion, or other suspect classifications. ... In the absence of such factors, the exercise of prosecutorial discretion does not violate due process or equal protection of the law.
“ ‘The criminal law is not a computerized system and discretion ... is a necessary and inherent part of the criminal justice system. Prosecutorial discretion in law enforcement “is by its very nature exceedingly broad” and such discretion is an essential part of the criminal justice system.’”

The broader the prosecutorial discretion, the narrower must be the right of review thereof, and consequently our involvement is intended as but a guard against its indiscriminate or invidious use. When, as here, hearing is held and evidence received by the court, the applicant must show preponderantly an abuse of such discretion. See, also, United States v. Torquato, 602 F. 2d 564, 568-570 (3d Cir. 1979).

Mrs. McCloskey, until her resignation sometime subsequent to the June 4 incident, was a borough council member and police cómmitteewoman and had earlier been directed by the council and the [575]*575other members of its five-member police committee as well as Chief Braun, not to enter the chiefs office. On May 4,1979, exactly one month prior to the subject incident, she delivered the following letter to the Tyrone police department:

“Chief Braun,
I was hear (sic) to tell you that if you cause me any more trouble about my not being allowed in the Police Department, I will be the one to throw you out, and that is a promise.
If you are doing so much wrong that I cannot know about it you are in trouble anyways.
I fully intend to come in here any time I want to with or without your permission.
May God forgive me for ever voting for You. The board that helped us hire you must be as “sick” as you are.
You had better find your God and Savior real soon and do what is right or look for a home some where else.
For me to live is Christ Is/ Sondra A. McCloskey Sondra A. McCloskey

P. S. God nevers does anything with out a warning and you just had yours.”

On the date of the subject incident Mrs. McCloskey entered the police department in the basement of the Tyrone Borough Building and, without requesting authorization, proceeded past the dispatcher’s station down a corridor, in her own words a “so called restricted area,” to a room near his office where Chief Braun was found and, despite her concession that he appeared so distressed she “felt sorry for him,” she immediately stood in front of him and railed “Kurt, you must be crazy or sick.” Chief Braun ordered her to leave several times, directions which Mrs. McCloskey ignored. Chief [576]*576Braun then, according to Mrs. McCloskey, grabbed her arm and pushed her toward the door, she still insisting “I’m not leaving” and grabbing hold of the door frame to resist her ejectment from the room. At this point Chief Braun advised Mrs. McCloskey he would arrest her if she did not leave, to which she admits responding “Good, that’s what I want.”

While we accept for purposes of this review that Chief Braun thereupon seized both of Mrs. McCloskey’s arms, twisted them behind her back and locked her in a cell for 15-20 minutes while he prepared a citation charging her with disorderly conduct (see Pa.R.Crim.P. 51A(3)), what preceded this ultimate action seems most significant. It is clear that Mrs. McCloskey not only desired, but was looking for an opportunity to induce, a crisis situation. Consideration of the motive of a potential private prosecutor is not unimportant. See Com. v. Morgan, 358 Pa. 607, 615, 58 A. 2d 330 (1948). There should be no open door to the criminal courts as a means of satisfying personal vendettas. We cannot escape the conclusion that pursuit of these charges could produce a result inapposite to the very purpose of criminal prosecutions, which is to redress public, and not private, wrongs.

Despite being without the services of a single private investigator, so important did the Blair County District Attorney’s office consider these charges against Chief Braun that the only full-time member of the staff, Assistant District Attorney Wall, personally undertook an investigation, pursuant to which he contacted Mrs. McCloskey’s counsel, Chief Braun and the two police officers who witnessed the incident. In concluding that the charges reflect only conduct of Chief Braun in effecting an arrest and detention of Mrs. McCloskey for being disorderly it is apparent that attorney Wall [577]*577determined that Mrs. McCloskey was seeking to persist in a primarily retaliatory measure. We cannot disagree with this latter determination.1

The seriousness of the charges must be viewed in light of the nine and one-half months which elapsed between the incident and the filing of the complaint before Magistrate Ake, coupled with the intervening dismissal of the disorderly conduct charge against Mrs. McCloskey by Magistrate Morrisey on technical or procedural, rather than on substantive, grounds.

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Related

United States v. John R. Torquato
602 F.2d 564 (Third Circuit, 1979)
Shade v. Commonwealth of Pa., Dept. of Transp.
394 F. Supp. 1237 (M.D. Pennsylvania, 1975)
United States v. Panza
381 F. Supp. 1133 (W.D. Pennsylvania, 1974)
Commonwealth v. Morris
406 A.2d 1091 (Superior Court of Pennsylvania, 1979)
Commonwealth v. Morgan
58 A.2d 330 (Supreme Court of Pennsylvania, 1948)
Piscanio Appeal
344 A.2d 658 (Superior Court of Pennsylvania, 1975)

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Bluebook (online)
19 Pa. D. & C.3d 572, 1980 Pa. Dist. & Cnty. Dec. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-braun-pactcomplblair-1980.