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2023 PA Super 244
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STUART HARRISON :
:
Appellant : No. 519 MDA 2022
Appeal from the Order Entered November 1, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007632-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STUART HARRISON : No. 520 MDA 2022
Appeal from the Order Entered November 1, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007632-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
OPINION BY BENDER, P.J.E.:
Former police officer, Stuart Harrison, faces one count of simple assault
despite the Commonwealth’s two attempts to terminate that prosecution. In
its second attempt, which is the subject of this interlocutory appeal by
permission, the Commonwealth claimed that it could not proceed due to the
death of a witness. The trial court disagreed with the Commonwealth’s
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evidentiary analysis. Harrison and the Commonwealth1 ask this Court to
conclude that the trial court improperly credited its own view of the evidentiary
question instead of deferring to the Commonwealth’s judgment. The parties
submit that this Court should look to In re Ajaj, 288 A.3d 94 (Pa. 2023),
which addresses judicial review of prosecutors’ declining to file private criminal
complaints, for the relevant standard of review. Under that standard, the
Commonwealth’s petition must be granted unless its request was due to “bad
faith, occurred due to fraud, or was unconstitutional.”
Id. at 97.
We decline to adopt this standard, as the decision to file charges is
distinguishable from a decision to withdraw charges. In the former case,
which In re Ajaj addresses, the prosecutor has decided that criminal charges
were not warranted. The judicial branch must tread lightly when interfering
with that judgment call. In the latter scenario, the prosecutor decided at one
time that charges were warranted. That is a conscious choice to implicate the
judicial branch. For the reasons set forth below, we conclude that a motion
to withdraw a charge due to purported evidentiary insufficiency is subject to
de novo review, as it presents a pure question of law. We agree with the trial
court’s assessment of the evidence and therefore affirm.
I.
On May 30, 2018, employees of the Santander Bank requested
assistance from the Southwestern Regional Police Department. Harrison, an
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1 The victim is not a party to this appeal, and it does not appear he ever sought
to participate. Hence, the victim’s interests are not represented.
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officer employed by that department, responded and met the bank manager,
who pointed out Ryan Smith. The manager informed Harrison that Smith was
attempting to withdraw money from his account but did not have any
identification. Smith refused to comply with Harrison’s command to leave the
bank. Harrison eventually informed Smith that he was under arrest and twice
deployed his TASER, which did not make sufficient contact with Smith’s skin
to disable him.
A second officer, Michael Matthews, arrived to assist after the second
TASER deployment. Eventually, the two officers were able to cuff Smith’s
hands behind his back and escorted him from the building. Smith refused to
enter the patrol vehicle, and the two officers struggled to force him into the
backseat. Ultimately, Harrison “decided that he was going to drive stun …
Smith in the thigh with his TASER to see if that would get him to buckle his
leg so that they could get him in the back seat of the car.” Affidavit of Probable
Cause, 11/30/18, at 3 (summarizing interview with Harrison). Smith pulled a
trigger and immediately realized he had mistakenly drawn his firearm. The
bullet entered Smith’s leg, requiring a 17-day hospital stay.
Smith’s mother, Christine Smith, witnessed the shooting. She told
investigators that Smith said he was going to get money from the bank. She
explained that Smith had a mental illness, had been treated at the hospital for
psychiatric reasons and had just been released the day before, and seemed
delusional. She followed her son and told the arresting officers during the
struggle that Smith was experiencing a mental break.
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The Pennsylvania State Police investigated and interviewed, among
others, Amanda Hendrickson-Cozio, who worked at the bank as a cleaner, and
Harry Harrington, a customer at the bank. Hendrickson-Cozio saw the
shooting but did not witness the events inside the bank. Harrington witnessed
the entire encounter. The investigators also obtained video footage recorded
on a phone, which showed the initial dispute and TASER deployments.
Harrison was charged with one count of negligent simple assault. 18 Pa.C.S.
§ 2701(a)(2) (“[A] person is guilty of assault if he … negligently causes bodily
injury to another with a deadly weapon[.]”).
Hendrickson-Cozio, Christine Smith, and Trooper Daniel Weldon testified
at the preliminary hearing on December 21, 2018. Harrison was held on the
sole charge.
The first attempt to terminate prosecution
The Commonwealth first tried to terminate this prosecution on May 19,
2020. While that ruling is not before us, it is referenced within the trial court’s
opinion on this matter and provides context.
The Commonwealth attached a memorandum of law to its petition,
explaining that the nolle pros was “in the interests of justice.” Memorandum
in Support of Nolle Prosequi, 5/19/20, at 1 (unnumbered). The memorandum
was almost entirely based on the Commonwealth’s analysis of the sentencing
factors set forth at 42 Pa.C.S. § 9721(b) (instructing a court to consider “the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
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of the defendant”). The Commonwealth cited Harrison’s 16-year career and
argued that Harrison was not likely to recidivate. Similarly, the
Commonwealth determined that Harrison’s rehabilitative needs were non-
existent as the incident was a mistake. The Commonwealth also cited
Harrison’s expressions of remorse and his conduct after-the-fact, which
included addressing two cadet classes about the shooting. The
Commonwealth believed that these actions “establish that he highly
appreciates the seriousness of this offense and his great degree of remorse
for injuring Mr. Smith.” Id. at 4.
Turning to the victim’s needs, the Commonwealth did not mention
Smith, instead citing its discussions with his mother. The memorandum stated
that Mrs. Smith had “stressed two matters as critical outcomes for this case,”
which were that Harrison no longer carry a firearm while working and that the
shooting serve as an educational example for dealing with mental health
issues. The Commonwealth noted that Harrison is no longer working as a
police officer and cited the trainings conducted by Harrison. “The
Commonwealth believes that these primary outcomes sought by Mrs. Smith
are accomplished.” Id. at 5. The Commonwealth conceded that Mrs. Smith
objected to withdrawing the charge but asserted that any further punishment
“would be … punishment for punishment’s sake.” Id. at 5-6. The
Commonwealth stressed that “Mr. Harrison has, in fact, undergone a lasting
punishment” because he had been arrested and suffered “collateral
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consequences and public stigma. That lasts regardless of whether a conviction
occurred.” Id. at 6.
The Honorable Maria Musti Cook denied the petition following a hearing
on June 15, 2020. The court stated at the outset its concern that the
Commonwealth’s filings indicated that Smith had not been given notice of the
hearing. District Attorney David Sunday explained that, as set forth in the
memorandum, the Commonwealth had discussed its plan with Smith’s
mother. Attorney Sunday added that he spoke with Smith’s “personal injury
lawyer and … I certainly thought that everything was being communicated to
him.” N.T., 6/15/20, at 3-4.
The trial court then asked Smith, who was present, what
communications he had received. Smith stated, “None. The [District
Attorney] has never reached out to me once.” Id. at 5. Smith stated that he
was present only because “Ashley contacted me and told me what was going
on….” Id. at 6.2 The trial court then asked Mrs. Smith about the
Commonwealth’s discussions with her. She agreed that the District Attorney’s
Office had discussed the matter with her and confirmed that she disapproved
of the decision to drop the charge. Attorney Sunday explained at length why
he believed a withdrawal was appropriate and argued that most prosecutors
would not have filed charges at all.
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2 It is not clear who Ashley is, and no last name was given.
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The trial court characterized the Commonwealth’s memorandum as
focusing on “sentencing considerations, and sentencing considerations come
into play after there’s a plea or a verdict.” Id. at 16. The court opined that
a nolle pros is appropriate when “the evidence is insufficient to sustain a
conviction,” and the Commonwealth “[is] not saying that.” Id. The
Commonwealth replied that sentencing law is “the closest that we can find.”
Id. at 17. The trial court denied the petition as well as the Commonwealth’s
request that the court amend the order to state it “involves a controlling
question of law as to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially advance the
ultimate termination of the matter.” 42 Pa.C.S. § 702(b). See Pa.R.A.P.
311(a)(1) (authorizing appeal certified under that statute). The
Commonwealth then sought permission to appeal, which we denied on
November 9, 2020.
Second attempt to terminate prosecution
The next event on the criminal docket sheet after the Commonwealth’s
petition to appeal was denied is dated September 16, 2021, when the
Commonwealth filed its second motion for nolle prosequi, which is the subject
of this appeal. On November 1, 2021, the parties appeared for a hearing.
The Commonwealth claimed that it could no longer proceed as Harrington had
died on March 23, 2019. The Commonwealth stated that, without his
testimony, “the Commonwealth does not believe it can meet its burden
beyond a reasonable doubt. When we cannot meet our burden, it is our ethical
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obligation to the [c]ourt to ask that the charges be dismissed.” N.T., 11/1/21,
at 2. The court responded, “I have to say, I’m trying to say this politely, I
found [the petition] quite lame for two reasons.” Id. at 3. The first was that
Harrington had died on March 23, 2019, which predated the Commonwealth’s
first attempt to withdraw all charges. The second was the trial court’s
conclusion that Harrington’s testimony was not needed to secure a conviction.
The Commonwealth replied that “Harrington was the sole independent witness
at that time” who saw what occurred both inside and outside the bank. Id.
at 4. The trial court did not buy this argument, averring that this case is no
different “from any domestic violence case, any rape case, any case where all
we have is a victim and a perpetrator and no other witnesses.” Id. The
Commonwealth responded that Harrington’s testimony was relevant to “what
we anticipate [the] defense to present at the time of trial. Here, in what we
anticipate the defense to be, Mr. Harrington is critically necessary to refute
that defense.” Id. The Commonwealth also stated that it was unaware of
Harrington’s death when it first sought to terminate the case because it had
yet to start preparing for trial due to its plea discussions. The trial court
rejected the Commonwealth’s arguments and entered an order denying the
Commonwealth’s second motion for nolle prosequi.
Trial court opinion
The Commonwealth again requested that the trial court certify the order
for appeal pursuant to 42 Pa.C.S. § 702(b), which the trial court denied. Both
parties filed a petition for permission to appeal, which this Court granted. We
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then consolidated the appeals sua sponte and the trial court ordered the
parties to file concise statements pursuant to Pa.R.A.P. 1925(b). The
Commonwealth raised the following claims, which are virtually identical to the
issues presented on appeal:
I. Did trial court err in denying the Commonwealth’s Motion for
Nolle Prosequi where [the court] found the rationale for the
Commonwealth’s motion to be ‘lame’ and based its decision … on
generalizations concerning evidentiary sufficiency and not on an
assessment of the individualized evidentiary sufficiency of this
case?
II. Did the trial court err in denying Commonwealth’s Motion for
Nolle Prosequi, despite the Commonwealth’s repeated averments
that it could not ethically proceed due to a lack of sufficient
evidence to proceed to trial pursuant to Rule 3.8 of the Rules of
Professional Conduct?
III. Did trial court violate the constitutional requirements
governing Separation of Powers by denying the Commonwealth’s
Motion for Nolle Prosequi based upon a review of all evidence,
including that of the defense in light of the passing of a material
Commonwealth witness, and determination that the evidence was
insufficient to proceed to trial, and ordering the Commonwealth to
proceed to trial despite this independent evaluation of the
executive branch and that doing so requires the Commonwealth
to violate the ethical mandates of Pennsylvania Rule of
Professional Conduct 3.8?
Concise Statement, 5/12/22, at 1-2 (unnumbered).
In response to the Commonwealth’s concise statement, the trial court
elaborated on its assessment of the evidence remaining to the Commonwealth
in its Rule 1925(a) opinion. First, the trial court pointed out that the
Commonwealth’s description of Harrington as the only “independent” witness
is incorrect, as Hendrickson-Cozio said she witnessed the shooting. Thus, the
trial court stated that “independent evidence exists from a witness unrelated
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to Smith or [Appellant] or the police department.” Trial Court Opinion (TCO),
6/13/22, at 8 (unnumbered). Addressing the fact that Hendrickson-Cozio did
not witness the dispute inside of the bank, the court referenced the video
evidence showing what happened inside the bank, and noted that “there are
several witnesses who can provide testimony regarding observations of what
occurred outside of the bank from the time Smith exited the bank until he was
shot by [Harrison].” Id. at 8-9.
The trial court also determined, for largely the same reasons, that
prosecuting Harrison would not violate Rule 3.8 of the Rules of Professional
Conduct. The trial court noted that the Commonwealth did not cite any
particular provision of that Rule, but did not deem the issue waived for that
failure, as it presumed that the Commonwealth referenced Rule 3.8(a), which
states that “[t]he prosecutor in a criminal case shall … refrain from prosecuting
a charge that the prosecutor knows is not supported by probable cause[.]” PA
ST RPC Rule 3.8. The court quickly dispensed with the argument, reiterating
that the evidence was sufficient to convict, and that the Commonwealth
“regularly proceeds to trial with much less evidence and often with nothing
more than a ‘he said-she said’ scenario….” TCO at 10.
Finally, the trial court found that its order did not violate separation of
powers, as Pennsylvania Rule of Criminal Procedure 585 requires the trial
court to consent to the Commonwealth’s petition. See Pa.R.Crim.P. 585(A)
(“Upon motion of the attorney for the Commonwealth, the court may, in open
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court, order a nolle prosequi of one or more charges notwithstanding the
objection of any person.”).
II.
Parties’ Arguments
The parties are largely aligned in their presentations, as Appellant
adopts wholesale the Commonwealth’s arguments as to the second and third
issues raised on appeal.
Regarding the first issue, the Commonwealth first contends that the trial
court improperly conducted its own assessment of the strength of the evidence
when reviewing the petition to nolle prosequi the charge. The Commonwealth
faults the trial court for citing “generalized” assessments, such as the ability
to prove a domestic violence assault case through the testimony of one
witness, instead of examining the specific details of this case.
Relatedly, the Commonwealth expresses the view that its own review of
the evidence should be credited. Harrington was the only witness to see what
happened both inside and outside the bank, was the only witness “not
affiliated with either the victim and his family or the police,” and the only
“independent witness whose testimony would establish that [Harrison] acted
with criminal negligence.” Commonwealth’s Brief at 11. The Commonwealth
disagrees that the other witnesses will suffice because “none of these
witnesses offered the same type of testimony as Mr. Harrington,” which
“cannot be replicated by any other witness….” Id. at 16.
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The Commonwealth agrees that it does not have unlimited discretion
and accepts that judicial approval is required, but highlights case law linking
a petition for nolle prosequi to judicial review of a prosecutor’s refusal to file
a private criminal complaint. Following In re Ajaj, wherein our Supreme
Court established a unitary standard of review for examining a prosecutor’s
reasons for not approving a private criminal complaint, the Commonwealth
states that the trial court was required to grant its petition unless the request
was due to bad faith, occurred due to fraud, or was unconstitutional. The
Commonwealth argues that “[d]isapproving a private criminal complaint and
seeking to terminate a prosecution though a nolle prosequi implicate[s] the
same type of prosecutorial discretion. … [I]t stands to reason to employ the
same standard in each circumstance.” Commonwealth’s Supplemental Brief
at 13.3 Harrison adopts this argument and adds that the trial court’s ruling
will force him “to litigate claims for months or years that have already been
assessed by the Commonwealth as legally insufficient.” Harrison’s Brief at 10.
This will cause “emotional burden[s] and severe financial hardship.” Id.
The Commonwealth’s second claim on appeal is that it cannot ethically
proceed because it lacks sufficient evidence to convict. Pennsylvania Rule of
Professional Conduct 3.8 says that the Commonwealth cannot prosecute a
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3 We requested supplemental briefing as In re Ajaj was issued after the briefs
were filed. The Commonwealth’s initial brief argued that a trial court abuses
its discretion if it does not accept a “reasonable” request for seeking a nolle
prosequi. We interpret the Commonwealth’s supplemental brief to argue the
position that an abuse of discretion standard is too lenient in light of In re
Ajaj.
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charge if it is not supported by probable cause. The Commonwealth argues
that “[i]t is axiomatic that a prosecutor has an on-going duty to evaluate her
cases to ensure that the cases being brought before juries are those for which
guilt can be decided based upon sufficient evidence.” Commonwealth’s Brief
at 21. The Commonwealth states that four separate prosecutors from the
District Attorney’s Office for York County reviewed the case and each
concluded that, without Harrington’s testimony, a conviction could not be
obtained.
Finally, the Commonwealth claims that the trial court’s ruling violated
the separation of powers doctrine. It says that the judiciary, executive, and
legislative branches are all independent and co-equal, and “the prosecutor has
the power to decide whether to initiate formal criminal proceedings, to select
those criminal charges which will be filed against the accused, to negotiate
plea bargains, to withdraw charges where appropriate, and, ultimately, to
prosecute or dismiss charges at trial.” Commonwealth’s Brief at 24 (quoting
Commonwealth v. Clancy, 192 A.3d 44, 53 (Pa. 2018)). The
Commonwealth does not claim that requiring judicial approval for a nolle
prosequi in and of itself violates the separation of powers. However, the
Commonwealth argues that, in the absence of a finding that the
Commonwealth acted in bad faith, or that its decision was unconstitutional or
discriminatory, the trial court must grant the petition. The trial court’s ruling
was not based on any of those possibilities. The trial court merely disagreed
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with the Commonwealth, which is not a proper basis for denying its petition
and impermissibly exercises a power reserved to the executive branch.
III.
The parties’ arguments proceed from the premise that the nolle prosequi
inquiry should be analyzed under precedents examining a prosecutor’s refusal
to process a private criminal complaint filed by a citizen.4 We thus begin by
briefly discussing the evolution of the common law nolle prosequi power in
this Commonwealth and how that power has been analogized to the private
complaint process.
Our sister court, the United States Court of Appeals for the Third Circuit,
explains a petition for nolle prosequi as follows: “Under this doctrine,
prosecutors have the power to decide whether to proceed with the prosecution
of a charged defendant. Absent a controlling statute or rule to the contrary,
this power resides solely in the prosecutor’s hands until the impanelment and
swearing of a jury.” In re Richards, 213 F.3d 773, 782 (3d Cir. 2000).
Pennsylvania likewise historically viewed the nolle prosequi power as not
subject to judicial oversight. “A nolle prosequi is a voluntary withdrawal by
the prosecuting attorney of present proceedings on a particular bill. At
common law it might at any time be retracted and was not a bar to a
subsequent prosecution on another indictment, but it might be so far canceled
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4 We address the parties’ claims together because the second and third claims
are variations of the first claim, which concerns the standard of review to be
applied. Our resolution of the standard of review argument suffices to
dispense with the second and third points of error.
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as to permit a revival of the proceedings on the original bill.”
Commonwealth v. McLaughlin, 142 A. 213, 216 (Pa. 1928). Pennsylvania
law restricted this prosecutorial prerogative as early as 1850:
Historically, at common law, a prosecutor had the authority to
enter a nolle prosequi on his own motion. See Commonwealth
ex rel. Thor v. Ashe, … 11 A.2d 173 ([Pa. Super.] 1939). This
unfettered power was modified by the Acts of May 3, 1850, P.L.
654, and the Criminal Procedure Act of 1860, which required that
before a nolle prosequi could be entered, the assent of the proper
court must be obtained. Id.
Commonwealth v. Stivala,
645 A.2d 257, 261 (Pa. Super. 1994).
The power to request a nolle prosequi is currently governed by rule and
requires judicial consent. “Upon motion of the attorney for the
Commonwealth, the court may, in open court, order a nolle prosequi of one
or more charges notwithstanding the objection of any person.” Pa.R.Crim.P.
585(A). That requirement raises the question at the heart of this appeal: what
principles inform whether the trial court should (or even must) assent, and
what standard does an appellate court apply when reviewing that ruling?
Most cases involving judicial review of a motion for nolle prosequi
involve an adversarial dispute, because a successful motion leaves the door
open for future prosecutions. “Nolle prosequi, if entered before jeopardy
attaches, neither operates as an acquittal nor prevents further prosecution of
the offense.” Bucolo v. Adkins, 424 U.S. 641, 642 (1976). Thus, a
defendant may wish to contest a nolle prosequi or argue that the prosecution
is attempting to circumvent the defendant’s rights to a speedy trial.
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Our Supreme Court’s decision in Commonwealth v. DiPasquale, 246
A.2d 430 (Pa. 1968), is an example of how a prosecutor’s motion for nolle
prosequi does not necessarily benefit the defendant. There, DiPasquale was
accused of murdering several people on June 17, 1966. The trial court had
granted six Commonwealth postponements, and trial was set for March 11,
1968. The Commonwealth informed the court that it “had only one witness,
namely Boyesky, who could incriminate the defendant, and that Boyesky had
informed the District Attorney that he would repudiate the statement he had
made to the police in which he incriminated the defendant, and that if called
as a witness he would plead the Fifth Amendment.”
Id. at 431. The
Commonwealth stated it would not be able to prove its case and “was forced
to request leave to nolle pros the indictments.”
Id. The trial court denied the
request and forced the case to trial, which resulted in a not guilty verdict.
The Commonwealth appealed, claiming that the acquittal was a nullity
as the trial court should have granted its petition. Our Supreme Court
acknowledged a prosecutor’s “widely recognized power to conduct criminal
litigation and prosecutions on behalf of the Commonwealth, and to decide
whether and when to prosecute, and whether and when to continue or
discontinue a case,” but those principles must be considered alongside the
court’s own powers, which include protection “of a defendant’s rights to a fair
trial and due process under the Constitution of the United States.” Id. at 432.
In Stivala, we addressed whether the trial court’s role should be viewed
any differently when the application for a nolle prosequi benefits the
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defendant. Martin Stivala was accused of setting a building on fire, and the
Commonwealth charged him with, among other crimes, felony murder. The
Commonwealth had moved to nolle prosequi the murder charge due to
evidentiary insufficiency prior to trial, which the trial court denied. The jury
convicted Stivala of several crimes but was unable to reach a verdict on
murder, and a mistrial was declared on that count. Stivala asserted on appeal
that the trial court erred by rejecting the Commonwealth’s request to dismiss
that charge. He advanced a maximalist position: if the Commonwealth’s
motion benefits the defendant, then the trial court must grant the request. In
addition, he brought a separation-of-powers argument:
[Stivala] contends that the trial court was without power to deny
the Commonwealth’s motion for nolle prosequi because the
Commonwealth has discretion whether to prosecute a matter, and
for a court to interfere with that decision is a violation of the
constitutional guarantee of the separation of powers. In effect,
[Stivala] claims that the judicial branch may not intervene here to
usurp the discretion of the executive branch.
Stivala, 645 A.2d at 261.
Stivala sought to distinguish DiPasquale, asserting that, “although the
court could protect the rights of defendants, there is nothing to permit the
court to protect the public good in denying a nolle prosequi, and thus forcing
a defendant to go to trial.” Id. at 261-62. We disagreed, analogizing the
Commonwealth’s assessment of the evidentiary sufficiency to cases in which
a prosecutor declines to process a private complaint. We looked to our
Supreme Court’s decision in Commonwealth v. Benz,
565 A.2d 764 (Pa.
1989), abrogated by In re Ajaj,
288 A.3d 94 (Pa. 2023), which held that a
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determination of the sufficiency of evidence is a judicial function and does not
implicate prosecutorial discretion. We concluded, “[f]rom the Supreme
Court’s decision in Benz, supra, it is apparent that the determination of
whether there was sufficient evidence to sustain a prima facie case is
ultimately a judicial one and subject to the trial court’s determination.”
Stivala,
645 A.2d at 262. We then reviewed the sufficiency of evidence de
novo.
Notwithstanding this conclusion, the parties argue that Benz supports
their position because, in dicta, it suggested that policy reasons are afforded
special deference. In Benz, an off-duty police officer, Joseph Benz, was
waiting for an elevator door to close when Paaron Jones approached and held
the door open to speak with another person. Benz and Jones began to argue,
and Jones attacked Benz. Benz pulled out his badge and gun, and identified
himself as a police officer. Jones ran and Benz pursued. A second scuffle
began, during which Benz’s firearm accidentally discharged. Jones was shot
in the head and ultimately died.
The Allegheny County District Attorney chose not to file charges,
concluding that the evidence showed the men were wrestling over the gun
when it discharged. Jones’ mother then sought approval to file a private
complaint charging Benz with voluntary manslaughter. “The District Attorney
disapproved the complaint on the grounds that insufficient evidence existed
to establish that a crime had been committed.” Benz, supra at 767. She
appealed and the Superior Court reversed, concluding that the evidence was
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sufficient to establish a prima facie case of voluntary manslaughter. The
Commonwealth then appealed to our Supreme Court, which affirmed.
In an opinion announcing the judgment of the Court, Chief Justice Nix,
joined by Justices Larsen and Zappala, agreed with this Court’s ruling that, as
a matter of law, the evidence was sufficient to establish a prima facie case.
The Court did not address the Commonwealth’s argument that separation-of-
powers principles required the appellate courts to defer to the exercise of
prosecutorial discretion, responding that this argument was irrelevant under
the circumstances:
The fallacy of this argument is its lack of relevancy. The
prosecutor in this instance never purported to predicate his
decision not to prosecute upon the exercise of his prosecutorial
discretion to make policy. He expressly stated that the decision
to decline prosecution resulted from his determination that the
evidence would not sustain a prima facie case. Thus[,] the issue
before both lower courts required an assessment of that legal
judgment and not an intrusion upon prosecutorial discretion. Had
the district attorney utilized policy discretion to refuse prosecution
and had the lower courts reviewed that decision, the question of
separation of powers would have been appropriately raised.
However, we need not stray from the issues properly presented
to decide this case.
Benz, supra at 768 (footnote omitted).
The plurality suggested in a footnote that if the Commonwealth had
cited policy reasons, the result would have been different:
If the district attorney had stated policy reasons to support the
decision not to prosecute, this Court would show the deference
accorded to such a discretionary use of the executive powers
conferred in that officer. However, because the reason stated was
the ultimate determination by the district attorney that no crime
had been committed, this Court is authorized to review that
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determination without the special deference afforded a separate
branch of government.
Id. at 767 n.4.
Benz has been abrogated by In re Ajaj, which announced a unitary
standard of review over a prosecutor’s decision not to accept a private
complaint, thereby rejecting the notion that policy reasons should be assessed
differently than legal determinations. In that case, Luay Ajaj and Saja Ibrahim
Abdulkareem Al Rabeeah had been involved in a custody dispute over their
two children. Ajaj alleged that the children’s mother had kept their children
in Iraq in violation of court orders and sought the assistance of various law
enforcement agencies. Those efforts were unsuccessful, and Ajaj sought
approval to file a private complaint against their mother for violations of
criminal law. An assistant district attorney disapproved the complaint,
“identifying ‘evidentiary issues’ as the sole reason for her decision in the
limited space provided on the complaint form.” In re Ajaj, supra at 100.
Ajaj petitioned the court of common pleas for de novo review as authorized
by Pennsylvania Rule of Criminal Procedure 506(B)(2). The District Attorney’s
office filed a response, listing five separate reasons for disapproving the
complaint, which referenced policy-based reasons, legal reasons, and
practical/evidentiary difficulties as reasons for disapproving the complaint.
The court of common pleas reversed the disapproval, and the Superior Court
affirmed.
Our Supreme Court reversed. The Court explained that no precedential
holding had emerged in this arena. The Court ultimately established the
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following standard of review for a trial court’s review of a prosecutor’s decision
not to approve a private complaint:
[A] court of common pleas may only overturn that decision if the
private complainant demonstrates that the disapproval decision
amounted to bad faith, occurred due to fraud, or was
unconstitutional. In so holding, we denounce the prior rubric,
where the applicable standard of review depended on the asserted
basis for the prosecutor’s disapproval decision.
Id. at 109. This standard “ensures that a court of common pleas will afford
proper deference to the discretionary decision of the prosecutor—a member
of the executive branch of the Commonwealth’s government.” Id. at 109-10.
Additionally, while the Court did not address what standard of review would
apply on appellate review of that decision, it suggested that an abuse of
discretion standard is inappropriate. See id. at 110 n.11.
IV.
With this background in mind, we now address the November 1, 2021
order.
We stress that the only order under review is the trial court’s ruling on
the second petition, which had the effect of benefitting Harrison but not, as
far as the record goes, the intent. Certainly, the first petition had both the
intent and effect of benefitting Harrison. As recounted in the factual history
section, the Commonwealth intended to terminate the prosecution as a “plea
bargain” of sorts. The trial court refused to grant that petition.
The Commonwealth assiduously avoids mentioning in its brief any of the
reasons it tried to terminate the prosecution the first time. It maintains that
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its second petition was filed due entirely to the death of a witness it deems
crucial. Thus, the Commonwealth represents that it would have continued its
prosecution but for the death of Harrington. Thus, the petition would have
the effect of benefitting Harrison, but it was not intended to do so as the
Commonwealth’s request was made after a review of the evidence it could
present at the forthcoming trial. Our analysis therefore does not encompass
the trial court’s first ruling.5
Because our review is limited to the Commonwealth’s assertion that the
evidence is insufficient to convict, we conclude that Stivala is largely on point.
Like this case, Stivala involved the Commonwealth’s seeking a nolle prosequi
on the basis that the available evidence could not meet its burden to convict,
and it deemed Benz relevant to motions that benefit the defendant. The
Commonwealth asserts that the In re Ajaj case enshrines what Benz left
open: if the Commonwealth makes a policy determination in concluding that
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5 Portions of the trial court’s opinion suggest that the Commonwealth’s second
petition to terminate prosecution cited Harrington’s death as a pretext to
relitigate its first failed petition. Specifically, the trial court stated:
This has never been a case where evidence was insufficient. The
Commonwealth negotiated a plea agreement with defense counsel
that included a nolle prosequi of the charges and now wants
that agreement enforced by the [c]ourt; this [c]ourt did not
find the agreement to give consideration to [Smith]’s rights and
[Smith] was opposed to the negotiated plea agreement.
TCO at 10-11 (unnumbered; emphasis added). Notwithstanding this
observation, the trial court addressed the merits of the Commonwealth’s
evidentiary claim. Absent an explicit finding by the trial court that the
Commonwealth’s cited basis for withdrawing the charge was made in bad
faith, we limit our analysis to the second petition.
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the evidence was insufficient to convict, then that decision must be afforded
great deference. See Benz, supra at 767 n.11 (suggesting that, if the
prosecution cites a policy reason, the courts “would show the deference
accorded to such a discretionary use of the executive powers conferred in that
officer”). The Commonwealth cites its policy of not pursuing cases that are
unlikely to result in a conviction, as well as its ethical duties not to pursue
cases it cannot prove beyond a reasonable doubt.
We disagree. We acknowledge that this issue presents difficulties. “Few
subjects are less adapted to judicial review than the exercise by the Executive
of his discretion in deciding when and whether to institute criminal
proceedings, or what precise charge shall be made, or whether to dismiss a
proceeding once brought.” Newman v. United States, 382 F.2d 479, 480
(D.C. Cir. 1967). The Commonwealth’s position is not unreasonable, as a
district attorney’s office has wide discretion to prosecute cases as it sees fit.
However, we disagree with its position that the decision to commence a
prosecution and the decision to terminate it calls for an identical standard
review. That argument ignores the fact that “the scope of prosecutorial
discretion changes as a criminal case proceeds, narrowing as the case nears
completion.” Commonwealth v. Brown,
196 A.3d 130, 145 (Pa. 2018). The
decision to file charges is the initial step, and the most critical one. It
represents the prosecutor’s choice to involve, or not involve, the judicial
branch. Prosecutors still enjoy wide latitude from that point on, especially
before the jury has rendered a verdict. They can offer plea bargains as to
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charges, agree to recommend a particular sentence, or make agreements on
both points. Simultaneously, there is no absolute right to have a judge accept
the parties’ negotiated agreement. “While the Commonwealth and a criminal
defendant are free to enter into an arrangement that the parties deem fitting,
the terms of a plea agreement are not binding upon the court. Rather the
court may reject those terms if the court believes the terms do not serve
justice.” Commonwealth v. White, 787 A.2d 1088, 1091 (Pa. Super. 2001).
What plea bargain to offer is an act of prosecutorial discretion, yet the parties
do not argue that the standards announced in In re Ajaj would apply to
whether a trial court must accept a plea.
We therefore disagree with the argument that every exercise of
prosecutorial discretion that can be described as implicating policy is governed
by the In re Ajaj standard. That case addressed only whether a prosecutor
decides to charge at all. A court’s second guessing a prosecutor’s decision
that criminal charges are not warranted poses a serious risk that the judicial
branch is encroaching on the executive branch’s powers, and warrants the
demanding standard set forth by In re Ajaj. This point is underscored by
Justice Dougherty’s concurring opinion, which addressed the fact that the rule
does not specify a remedy if a court overrules a prosecutor’s decision not to
accept the private complaint. He noted the “long-held belief among the courts
that [Rule 506] ‘reposes an awesome power in the judiciary, namely, the
authority to order a prosecutor … to prosecute a criminal complaint in the
name of the Commonwealth.’” In Re Ajaj, 288 A.3d at 112 (Dougherty, J.,
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concurring) (quoting Commonwealth v. Brown, 669 A.2d 984, 994 (Pa.
1995) (en banc) (Saylor, J., dissenting)) (emphasis supplied by In re Ajaj).
Justice Dougherty is skeptical of that power, opining that “there is a colorable
argument that when a court forces a district attorney to commence a
prosecution he opposes — whether for legal or policy reasons — it inevitably
‘interfere[s] with the prosecutor’s discretionary functions’ and thereby
‘violates the constitutional principle of separation of powers.’”
Id. at 112-13
(quoting Commonwealth v. Buonopane,
599 A.2d 681, 684 (Pa. Super.
1991)).
Forcing a prosecutor to commence prosecution is distinct from a ruling
that serves to force the Commonwealth to continue a prosecution it chose to
commence. The prospect of encroaching on powers reserved to the executive
branch is far more pronounced when a court conscripts the District Attorney’s
Office into service. In contrast, the denial of the Commonwealth’s petition for
a nolle prosequi due to a claim that the evidence will be insufficient to convict
at trial simply requires it to continue prosecuting a charge that it believed was
worthy of criminal sanctions. And the denial of a motion seeking to withdraw
all charges does not preclude the Commonwealth from amending the charges
or reaching a plea bargain. The trial court’s ruling does not force the
Commonwealth’s hand in the same way that forcing it to file a private
complaint does. Forcing a prosecutor to bring charges overrides the
prosecutor’s authority at the very beginning of the process. Requiring a
prosecutor to proceed with the charges he or she chose to file only regulates
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the authority they chose to exercise. In re Ajaj demands a high standard for
the former but it does not dictate that the same standard governs the latter.
Because we conclude that In re Ajaj does not control, we must decide
what standard to apply. We conclude that Stivala applied the correct
standard of de novo review. We see no need to address the parties’ claim
that the Commonwealth made a pure policy judgment in choosing not to
proceed. Reasonable jurists can disagree on that point. Compare In re
Wilson, 879 A.2d 199, 217 (Pa. Super. 2005) (en banc) (agreeing with trial
court that a conclusion “that the likelihood of conviction is minimal and/or the
likelihood of acquittal is great … is a policy determination”) with
id. at 223
(Bowes, J., dissenting) (“[T]he district attorney concluded that the likelihood
of a conviction was minimal, which constituted a legal evaluation of the
evidence and is subject to appellate de novo review.”); In re Ajaj, supra at
117 (Wecht, J., concurring and dissenting) (opining that the majority and
dissenting opinion in In re Wilson “reach wholly reasonably yet contradictory
conclusions” on that point). The dispositive fact is that the Commonwealth
chose to pursue charges, so we know the York County District Attorney’s Office
found that the case warranted prosecution both as a matter of law and policy.
Had Harrington died while the Commonwealth was still deciding whether to
press charges and cited his death as the reason for disapproval, the In re
Ajaj standard would clearly apply. But the fact remains that the
Commonwealth chose to file charges, and by doing so made the judiciary a
part of the case.
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That includes, of course, Rule 585’s requirement that the trial court must
approve the petition. The Commonwealth could always claim that some
change in circumstance warranted withdrawing charges due to a concern that
a conviction cannot be obtained, including a reevaluation of the available
evidence. And it could always claim that conviction, even if not impossible, is
unlikely, and therefore not a good use of its resources. It is difficult to see
how these claims would ever amount to “bad faith” or any of the other bases
set forth in In re Ajaj. When the Commonwealth claims that it cannot
proceed for legal reasons, the de novo standard for a pure question of law
ensures that the Rule serves its purpose.
Two recent precedents from our Supreme Court support our holding that
a de novo standard applies to a motion for nolle prosequi based on an asserted
lack of evidentiary sufficiency. In Brown, 196 A.3d 130, Brown filed a PCRA
appeal from an order denying his claims for relief, which included allegations
of trial counsel ineffectiveness during his capital sentencing phase. The
Philadelphia County District Attorney’s Office originally filed a brief opposing
relief. Later, the Commonwealth and Brown filed a joint motion in which the
Commonwealth confessed error, concluding that Brown was entitled to an
order vacating his death sentence and imposing a sentence of life
imprisonment without the possibility of parole. The Commonwealth argued
that our Supreme Court was required to accept the legal concession without
examining the legal merits of the underlying claim of ineffectiveness. The
Commonwealth “insist[ed] that only district attorneys, as a result of their
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‘wide grant of prosecutorial discretion,’ have the ‘power to decide whether to
seek or continue to seek the death penalty in view of the facts of any particular
case.’” Id. at 142-43 (quoting brief). The Court disagreed. As previously
quoted, the Court observed that prosecutorial discretion narrows as the case
proceeds, and where the jury has reached a verdict “neither the parties, by
agreement, nor this Court, absent a finding of legal error, have the power or
ability” to commute the death sentence.
Id. at 143.
Brown is not directly on point, as the case proceeded to trial and the
jury rendered a verdict. But it illustrates that a prosecutor’s discretionary
powers do not extend to binding a court to adopting its own preferred legal
judgments. The Commonwealth here attempted to do just that, and its brief
to this Court continues to emphasize its own view of the legal question instead
of explaining why Harrington’s testimony is so critical that a conviction cannot
be obtained without that testimony.
In Commonwealth v. Perrin, 291 A.3d 337 (Pa. 2023), the
Philadelphia County District Attorney’s Office prosecuted Perrin for a robbery.
At trial, only the victim and Lynwood Perry, who admitted he participated in
the robbery, testified. Perrin was convicted and, on direct appeal, the
Commonwealth disclosed that an FBI agent had interviewed Curtis Brown,
Perry’s cellmate. The agent related that Perry had told Brown that he falsely
implicated Perrin. This Court granted Perrin’s request for a remand; at the
hearing, both the FBI agent and Brown testified. Perry did not. The court
denied relief, concluding that Perry’s testimony was needed. This Court
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reversed and remanded, determining that Perry was unavailable as a matter
of law and his statements were admissible hearsay. The original judge was,
by that time, no longer on the bench. We ordered the new judge to hold an
evidentiary hearing on remand.
Upon remand, the Commonwealth and Perrin submitted a stipulation
that Brown would testify consistently with his prior testimony and that this
testimony was credible. The trial court refused to accept the stipulation. Our
Supreme Court ultimately granted a petition for allowance of appeal, and held
that the trial court did not abuse its discretion in refusing to accept a
stipulation to credibility. “[A]ny attempt by the parties to force the trial court
to accept a proposed stipulation as to witness credibility does not solely affect
the parties and intrudes on the jurisdiction and prerogative of the court.” Id.
at 346.
Perrin, like Brown, involves a verdict entered after trial, but its core
holding that a trial court is not required to accept the Commonwealth’s
concession of a legal point applies here. The trial court is permitted to
evaluate the Commonwealth’s legal conclusion for itself.
V.
The remaining question is whether the trial court correctly concluded
that Harrington’s absence was not fatal to the Commonwealth’s ability to
pursue the charge of simple assault. This presents a pure question of law,
and we review it de novo.
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The crucial facts of this case are relatively simple, as the key is simply
whether Harrison negligently grabbed and deployed his firearm.6 Thus, the
question for the fact-finder is simply whether Harrison acted negligently under
the circumstances. Notably, there is no suggestion that this case involved a
justified shooting based on Smith’s conduct. Thus, it is unclear why
Harrington is so crucial given that everything from inside is captured on the
cell phone video and other witnesses are available to testify as to the events
outside.7
The Commonwealth does not elaborate on its claim that Harrington’s
testimony is critical, instead focusing on its preference to describe its
assessment as involving a pure policy question. Indeed, the Commonwealth
does not even claim that the evidence is needed to prove its case-in-chief.
Instead, it claims that Harrington’s testimony would be needed to combat an
anticipated defense. Even extending the Commonwealth the benefit of the
doubt that the Commonwealth is referring to cross-examination of the
Commonwealth’s witnesses, the Commonwealth does not explain what that
defense would be. None of this is to say that Harrison will be found guilty;
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6 The statute also requires that the Commonwealth establish that Harrison
caused bodily injury with a deadly weapon. There is no assertion that these
two requirements are in dispute.
7 The Commonwealth argues that Harrington “is critically necessary is [sic]
establishing the uninterrupted chain and sequence of events that surround
that shooting and illuminate [Harrison]’s state of mind.” Commonwealth’s
Brief at 17. It is not explained how Harrington could lawfully speculate on
Harrison’s thought process.
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the finder-of-fact may well conclude that Harrison did not act negligently. We
must only determine whether the evidence available to the Commonwealth is
sufficient to establish the elements of the crime if accepted by the fact-finder,
and we conclude that it does. That conclusion is corroborated by the fact that
the Commonwealth did not call Harrington at the preliminary hearing. We
therefore conclude that, as a matter of law, Harrington’s unavailability did not
require the trial court to grant the Commonwealth’s petition.8
Order affirmed.
President Judge Panella joins this opinion.
Judge McCaffery files a concurring opinion in which President Judge
Panella joins.
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8 We do not express any opinion on whether the trial court may accept the
Commonwealth’s concession that the evidence is insufficient without any
examination of the merits. See Perrin, 291 A.3d at 346 n.7 (declining to
“address the question of whether the trial court, in its discretion, may accept
a proposed stipulation as to witness credibility”). We hold only that the trial
court is not obligated to do so.
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