In re Private Criminal Complaints Filed by Clegg

CERCONE, Judge: Appellant, Donald Clegg, appeals from the trial court’s order sustaining the disapproval by the district attorney of his private criminal complaints. Appellant filed private criminal complaints against two district justices, two state troopers and the prosecuting witness for their alleged dereliction of duty pertaining to appellant’s arraignment on an assault charge and his detainer by the State Board of Probation and Parole.1 Appellant, a parolee, was arrested and incarcerated on an assault charge on January 15, 1985 but his preliminary hearing in the matter was not held until May 22, 1985. Prior to the hearing, on May 7, 1985, appellant filed a pro se Writ of Habeas Corpus challenging the legality of his confinement. At the preliminary hearing appellant argued that holding the hearing was violative of 42 Pa.C.S.A. § 65052 and the hearing should be postponed until disposition of his Writ of [253] Habeas Corpus. Appellant’s argument was overruled. Subsequently, when, by court order dated May 24, 1985, appellant’s Writ of Habeas Corpus was denied, appellant filed private criminal complaints against the troopers who filed the assault charge, the district justices involved in the proceedings and the prosecuting witness, alleging that the parties made a concerted effort to render his Writ of Habeas Corpus moot. The district attorney of Perry County returned appellant’s complaint as “lacking prosecutorial merit.” Appellant took an appeal to the Court of Common Pleas of Perry County which was denied for “no abuse of discretion on the part of the district attorney.” This appeal followed. The sole issue on appeal is whether the court below properly exercised its discretion when it decided that the prosecutor had not acted improperly in disapproving appellant’s private criminal complaint. We are presented with a case that has been submitted to the Superior Court for decision without the benefit of oral argument, nor an appellee brief or an opinion from the court below that addresses the merits of appellant’s claim. Appellant’s case arose before this court’s decision in Commonwealth v. Muroski, 352 Pa.Superior Ct. 15, 506 A.2d 1312 (1986) (en banc) wherein the rule established in In re: Wood, 333 Pa.Superior Ct. 597, 482 A.2d 1033 (1984) that a private person who commences a matter by filing a private criminal complaint pursuant to Pa.R.Crim.P. 133 has a right of appeal from the order of a trial judge disapproving his complaint was repronounced by the court. In its opinion the court below stated the law of this Commonwealth prior to Muroski, that “the Commonwealth is clearly the party plaintiff in a criminal prosecution and the victim acts only as a prosecuting witness.” Thus, the court concluded that appellant had no standing. We think that the appellant has a right to a full discussion of the issue on appeal. This can only be accomplished with the benefit of the thorough analysis of the court below. Accordingly, we remand this case to the trial court [254] for findings of fact as to whether the district attorney acted properly in disapproving appellant’s private criminal complaint. See Commonwealth v. Mueller, 341 Pa.Superior Ct. 273, 491 A.2d 258 (1985); Pilon v. Pilon, 342 Pa.Superior Ct. 52, 492 A.2d 59 (1985); Commonwealth v. Hicks, 328 Pa.Superior Ct. 233, 476 A.2d 978 (1984). Order of the lower court is vacated and case is remanded. Jurisdiction is relinquished. BECK, J., files a dissenting opinion. Footnotes [1] The facts of this case are adopted from appellant’s brief and the record as the Commonwealth failed to timely file a brief, a practice we do not condone. [2] § 6505. Interference with writ prohibited Any person who shall fail or refuse to respond to a writ or to an order issued under this chapter, or who shall change the place of detention of an person for the purpose of defeating the writ, or shall, without express authorization from a judge of a court of record, recommit on substantially the same facts and circumstances any person set at large upon a habeas corpus, or shall do any act for the purpose of defeating the writ or the* order, commits a misdemeanor of the second degree.