OPINION BY BOWES, J.:
Karen A. Braman appeals from the order entered March 15, 2010 affirming the Pennsylvania Office of the Attorney General's ("Attorney General's Office") denial of Appellant's private criminal complaint. After careful review, we affirm.
The salient procedural and factual background are gleaned from the certified record and Appellant's brief. On August 22, 2008, Appellant filed a private criminal complaint against William Higgins Jr., who was the elected district attorney of Bedford County, Pennsylvania. See Private Criminal Complaint, 8/22/08. Appellant alleged that Mr. Higgins raped her in his office at the Bedford County Courthouse on or about July 10, 2008. Id. at 2-3. Since Mr. Higgins was the district attorney, his office recused itself and referred the matter to the Attorney General's Office. The Attorney General's Office then conducted an investigation into whether to approve Appellant's private criminal complaint. Appellant did not object to the Attorney General's Office's involvement at that point or contend that the Attorney General's Office should recuse itself.
Appellant specifically alleged that, on July 10, 2008, after a Republican Party committee meeting, she and Mr. Higgins proceeded back to the Bedford County Courthouse since she was interested in garnering his political support for a possible campaign for tax collector. Before agreeing to travel to his office, she and Mr. Higgins remained behind after the other meeting members left. The two traveled in separate vehicles with Mr. Higgins arriving first. Upon Appellant's arrival, Mr. Higgins instructed her to enter through a side entranceway where no cameras were present. Appellant cannot remember the events that occurred next, although she recalled being asked by Mr. Higgins if she could get pregnant. Report of Dr. Marc Tabackman, 12/22/08, at 2. She also recounted that at some point one of her pant legs was pulled down. Id.
Appellant's daughter, and her boyfriend, Kevin D., along with two other individuals, witnessed Appellant and Mr. Higgins at the courthouse. They observed Mr. Higgins arrive first and he greeted the four individuals before entering the courthouse. Shortly thereafter, Appellant's daughter saw her mother driving with her cell phone in front of her, before parking her vehicle in front of Mr. Higgins's automobile, and momentarily leave. Written Statement of Appellant's daughter, 8/31/08, at 2. Appellant's daughter traveled to a local Sheetz where Kevin D. met her, but returned to the courthouse after receiving a call from the two other individuals who remained outside the courthouse, and reported that her mother returned, and entered the courthouse. Id.; Written Statement of Kevin D., 9/10/08, at 2; Written Statement of Lisa H., 8/31/08, at 2.
When Appellant's husband arrived at home, his daughter told him that she believed her mother was having an affair. Written Statement of Appellant's husband, undated, at 1. Appellant's husband confronted Appellant and informed her that their daughter had something to tell her. Id. The couple's daughter told Appellant that she saw her in town and her father asked to see Appellant's cellular phone. Id. Appellant retrieved the cellular phone and her husband perused the telephone to determine if any text messages or calls had been placed to her. Id. He found a text message sent to his wife and she denied knowing the person who sent the message. Id. Kevin D., however, examined his own telephone and located the identical number, which belonged to Mr. Higgins. Id.; Written Statement of Kevin D., 9/10/08, at 4. Appellant continued to deny that she had entered the courthouse with Mr. Higgins. Written Statement of Appellant's husband, undated, at 1. Kevin D. informed Appellant's husband that two other individuals witnessed her and Mr. Higgins enter the courthouse together. Id. Appellant's daughter related that her mother changed her story ten to fifteen times. Written Statement of Appellant's daughter, 8/31/08, at 4.
Appellant's husband attempted to continue to talk to his wife but she began to fall asleep or pass out due to her apparent intoxication. Written Statement of Appellant's husband, undated, at 1. At 5:30 a.m., he awoke Appellant and asked her what had transpired at the courthouse. Id. Appellant acknowledged having sexual intercourse with Mr. Higgins but stated that she was unable to remember all that occurred. Id. Appellant's husband informed his wife that she needed to tell their daughter what she had just told him. Id. Appellant then related the information to her daughter, who began to strike her mother, knocking her to the floor. Id. Appellant's husband restrained the couple's daughter and instructed his wife to leave the home, informing her that she had just thrown away twenty years of marriage. Id. at 1-2.
Four days later, on July 14, 2008, Appellant's husband contacted a doctor alleging that his wife was raped. The doctor advised him to have his wife undergo a rape examination at the Bedford Memorial Hospital. He then traveled with his wife to the hospital, and a nurse reported the matter to the Pennsylvania State Police. Due to the lapse of four days and Appellant having showered at least twice before arriving at the hospital, hospital personnel did not perform a rape kit. The state police also apparently informed hospital personnel that the matter should be referred to the Bedford Borough Police. Accordingly, later that day, Appellant's husband appeared at the Bedford Borough Police Station and reported that Mr. Higgins had raped his wife at the county courthouse four days earlier. The police
The following day, Corporal Brian Hoover of the Pennsylvania State Police contacted Appellant. Appellant agreed to sign a waiver of prosecution and signed the waiver later that evening. Nevertheless, Appellant proceeded to file the instant private criminal complaint approximately one month later.
After receiving the private criminal complaint, the Attorney General's Office conducted an investigation into the allegations and notified Appellant by letter that it disapproved her case for prosecution. The Attorney General's Office explained in the letter that the disapproval was
Attorney General's Office's Disapproval Letter, at 1.
Subsequently, Appellant filed a petition to review the Attorney General's decision pursuant to Pa.R.Crim.P. 506.
Appellant timely appealed and the trial court directed that she file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court indicated that its March 15, 2010 opinion addressed Appellant's issues. The matter is now ripe for our review. Appellant raises the following issues for our consideration.
Appellant's brief at viii-ix.
Initially, Appellant argues that the trial court erred in deciding that there was not probable cause to believe that Mr. Higgins raped Appellant since he admitted to having sexual intercourse with her and because she stated that she did not consent. According to Appellant, since the sufficiency of the complaint is a matter of law, we should review this issue de novo.
It is settled that following the receipt of a petition to review the Commonwealth's decision to disapprove a private criminal complaint, the court must determine whether the Commonwealth's rationale for disapproving the private criminal complaint is for purely legal reasons or if it is based solely or in part on policy considerations. In re Wilson, 879 A.2d 199 (Pa.Super.2005) (en banc). When the Commonwealth's disapproval is based wholly on legal considerations, the court employs a de novo review. Id. at 215, 218. Where the decision includes or is entirely based on policy considerations, the trial court reviews the Commonwealth's determination under an abuse of discretion standard. Id. Instantly, the reasons for
In conducting our examination, we are mindful that the private criminal complainant must show that the decision not to prosecute was "patently discriminatory, arbitrary or pretextual, and therefore not in the public interest." Id. at 218. We will not disturb the trial court's ruling unless "there are no reasonable grounds for the court's decision, or the court relied on rules of law that were palpably wrong or inapplicable." Id. at 218-219.
In leveling her argument, Appellant submits that she became intoxicated at the Carriage House Restaurant and Mr. Higgins asked her to return to his office. Appellant avers that she was interested in obtaining Mr. Higgins's political support for her desired run as tax collector and agreed. She met Mr. Higgins at the courthouse where he instructed her to enter through a private entrance. From here, Appellant's memory is foggy. Appellant avers that she cannot recall whether she had intercourse with Mr. Higgins, but can remember that one of her pant legs was pulled down and Mr. Higgins asked her if she could become pregnant. Appellant also recalls that after leaving the courthouse, she hit something and briefly parked on the side of Route 220 before traveling home.
Appellant maintains that this information, combined with Mr. Higgins's admission that he engaged in consensual sex with her, is sufficient to support a charge of rape against Mr. Higgins pursuant to 18 Pa.C.S. § 3121(a)(3). That provision provides that a person commits rape when he engages in sexual intercourse with a person "[w]ho is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring." 18 Pa.C.S. § 3121(a)(3). Appellant asserts that because she was intoxicated and Mr. Higgins knew of this intoxication, when Mr. Higgins engaged in sexual intercourse with her, he had intercourse with her while she was unconscious.
The Commonwealth counters that the record conclusively demonstrates that Appellant cannot recall any specific details alleged in the complaint and is unable to state that sexual intercourse occurred. Further, the Commonwealth asserts that there is no physical evidence of an assault or sexual intercourse due to the four-day delay in reporting the matter. According to the Commonwealth, the only evidence that sexual intercourse occurred are the statements of Mr. Higgins. The Commonwealth posits that, pursuant to the corpus delicti rule, Mr. Higgins's statements that he engaged in sexual intercourse with Appellant would be inadmissible without independent proof of sexual intercourse. Secondarily, the Commonwealth argues that Appellant could not have been unconscious since she is able to recount some details of the interlude with Mr. Higgins, but not that sexual intercourse transpired. In addition, the Commonwealth submits that a four-day delay in this case establishes a lack of a prompt complaint, hampering its ability to sustain a conviction.
First, we dispose of the Commonwealth's position that a four-day delay in the reporting of the alleged crime and the corpus delicti rule would prevent a successful prosecution. While it is true that the lack of a prompt complaint is admissible in a criminal case, a four-day delay can hardly be considered egregious in light of the delays that frequently occur in other rape cases. Accordingly, the delay in this
Additionally, the corpus delicti rule has no applicability where the alleged defendant does not confess. Mr. Higgins certainly did not confess to committing a crime; thus, his admission that sexual intercourse occurred would not have been inadmissible. The corpus delicti rule simply is not applicable herein.
Nonetheless, we hold that the trial court did not err in upholding the Commonwealth's decision to deny approval of Appellant's private criminal complaint. As this Court recently explained:
In re Ullman, 995 A.2d 1207, 1213-1214 (Pa.Super.2010) (citing In re Wilson, supra).
In the instant case, the Commonwealth, after investigation, exercised its discretion in declining to prosecute Appellant's complaint because it believed that it would be improbable to sustain a conviction. According to the Commonwealth, this case does not present any evidence that Appellant was unconscious or asleep during intercourse and awoke during the incident. Similarly, there was no evidence that another person observed Appellant unconscious or asleep before, during, or after the incident. The Commonwealth contrasts the evidence in this matter to other case involving the rape of an unconscious person in which the victims were asleep and awoke to a person having sexual intercourse with them or an eyewitness was able to describe the victim as totally incoherent. See Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000); Commonwealth v. Wall, 953 A.2d 581 (Pa.Super.2008); Commonwealth v. Erney, 548 Pa. 467, 698 A.2d 56 (1997); Commonwealth v. Price, 420 Pa.Super. 256, 616 A.2d 681 (1992).
In the case sub judice, the Commonwealth points out that Appellant's own statements indicated that she was able to recall certain precise details immediately before and after the incident, demonstrating that it would be difficult to establish that she was unconscious or unaware of what was transpiring. Also, the circumstantial evidence from witnesses who observed Appellant prior to her leaving for the courthouse and those who saw her arrive and depart from the courthouse does not substantiate that she was not aware of what was occurring.
Appellant was unable to state that Mr. Higgins raped her or that she was asleep and awoke to find Mr. Higgins engaged in intercourse with her and told him to stop. Statements from witnesses before and after the incident indicate that, while Appellant may have been inebriated, she was conscious of her surroundings. Appellant drove herself to the courthouse prior to the incident to meet with Mr. Higgins and acknowledged kissing him in his office. Appellant also admitted to having sex with Mr. Higgins to her husband, but did not state at that time that she did not consent.
Appellant's second position on appeal is that the trial court erroneously denied her a hearing and the associated subpoena power to prove that former Attorney General Thomas Corbett was the close personal friend and political ally of Mr. Higgins. Since Appellant utterly failed to object to the Attorney General's Office's exercise of jurisdiction over the matter before it investigated and decided the case, we find Appellant has waived any claim or position that the Attorney General's Office was biased and should have recused itself.
The appropriate time to assert that the Attorney General's Office was personally biased and had a conflict of interest in the matter was after the Bedford County District Attorney's Office referred the case to the Attorney General's Office. Having neglected to object at the proper time, Appellant's second issue is waived. See e.g. Commonwealth v. Stafford, 749 A.2d 489 (Pa.Super.2000) (a party seeking recusal of a trial judge on the basis of bias must raise the objection at the earliest opportunity).
Furthermore, a private criminal complainant is not entitled to an evidentiary hearing regarding the trial court's review of the Commonwealth's decision. In re Wilson, supra at 212-213. As this Court stated in In re Wilson, the pertinent criminal procedural rule, Pa.R.Crim.P. 506, "merely allows the private criminal complainant the opportunity to have his complaint reviewed in the Court of Common Pleas[.]" Id. at 213. Accordingly, Appellant's second issue fails.
The third position Appellant levels actually asserts four different questions. Nonetheless, the issues can be more succinctly phrased as a challenge to the trial court's refusal to allow Appellant to review the Attorney General's Office's investigative file. Appellant contends that this denial prevented her from proving that the Attorney General's Office conducted a perfunctory investigation. In addition, Appellant asserts that the submission of the Attorney General's Office's investigative file without permitting her to review the file was a prohibited ex parte communication.
Appellant asserts that the ex parte communication was a "gross violation of rules, ethics and justice." Appellant's brief at 23. According to Appellant, the trial court's refusal to allow her access to the file was a violation of Pa.R.Crim.P. 576,
The Commonwealth replies that Appellant has no right to view its investigative file, was not entitled to rebut the contents of that file, and the file was not an impermissible ex parte communication. Further, the Commonwealth maintains that the trial court is permitted to evaluate all of the materials that the prosecution examined in making its determination. With respect to Appellant's position relative to Pa.R.Crim.P. 576, the Rules of Professional Conduct and the Code of Judicial Conduct, the Commonwealth contends that they did not bar the trial court's actions herein.
Preliminarily, Pa.R.Crim.P. 576 governs written motions, answers, and "any notices or documents for which filing is required[.]" The investigative file was neither a written motion, answer, or notice. Thus, the proper query is whether the investigative file is a document that requires filing. We hold that it does not. The comment to the applicable rule provides that
Comment to Pa.R.Crim.P. 576. Since no rule or provision of law requires that a prosecutor's investigative file be docketed in a case involving review of a private criminal complaint, Rule 576 is inapplicable. Furthermore, the Rules of Professional Conduct referenced by Appellant do not support her claim. Rule 3.4 prohibits an attorney from unlawfully obstructing a party's ability to access evidence. Rule 3.5 bars, in pertinent part, ex parte communications with a judge, "unless authorized to do so by law or court order." Pa.R.P.C. 3.5. In the present case, the court directed that the prosecution provide the documentation and no rule mandates that an investigative file be turned over to a private criminal complainant; thus, the Commonwealth did not illegally obstruct Appellant's access to the information. Finally, the Code of Judicial Conduct is not law, but a guideline to be followed. Although the trial court considered the investigative file, it was authorized by law to analyze that file. See In re Adams, 764 A.2d 577 (Pa.Super.2000).
Appellant's final claim is that the trial court erred in not mandating that the
In Brown, this Court found that the prosecution erred in denying a private criminal complaint based solely on policy reasons. In that case, there existed significant evidence that Brown committed several crimes. Brown admitted on the stand during a separate prosecution of another individual for kidnapping, rape, and murder, that he repeatedly lied to police and the court, including at the preliminary hearing. After the person charged with the kidnapping, rape, and murder was acquitted, he filed a private criminal complaint asserting that Brown committed perjury, tampered with evidence, hindered apprehension, obstructed justice, made an unsworn falsification, submitted a false report to law enforcement, and engaged in a criminal conspiracy with the district attorney.
The matter was referred to the Attorney General's Office, which declined to prosecute. The trial court held that the Attorney General's Office abused its discretion in disapproving the private criminal complaint, except for the conspiracy charge. The Attorney General's Office appealed, contending that the trial court's decision to overrule its policy-based decision was in error. The policy reasons proffered for not prosecuting the case were that it was obvious that Brown lied, that the prosecution would be too costly, and that Brown had already spent two years incarcerated.
This Court, in upholding the trial court's decision to overturn the prosecutor's determination, stated that the prosecution "must demonstrate that a clearly defined policy has been established that can be uniformly applied to such complaints." Id. at 992. We added that, "If the Attorney General had submitted evidence of an established policy, the trial court would have been able to determine whether, in this case, the Attorney General had actually followed that policy." Id. The Brown Court did not create a mandatory requirement that the prosecution submit evidence regarding a policy that disapproved of private criminal complaints when a conviction is unlikely.
Moreover, whether a conviction is likely is so inherently part of a prosecutor's discretion in determining whether to file charges that it is a policy that has been uniformly applied since the dawn of governmentally-instituted prosecutions.