Rule 506(B)(2) is silent, however, on what standard of review the court of common pleas is required to apply when reviewing that decision. In Commonwealth v. Benz , 523 Pa. 203, 565 A.2d 764 (1989) (plurality opinion), a plurality of this Court "distinguished between a prosecutor's disapproval of a private complaint for reasons of policy and a disapproval based on a legal evaluation of the sufficiency of the complaint" and "essentially endorsed a de novo review by the [court of common pleas] when a prosecutor's disapproval is based on a legal determination of the sufficiency of the complaint." Brown II , 708 A.2d at 84.
Commonwealth v. Malloy, 304 Pa. Super. 297, 303, 450 A.2d 689, 692 (1982). In Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989), a plurality decision, this Court distinguished between a prosecutor's disapproval of a private complaint for reasons of policy and a disapproval based on a legal evaluation of the sufficiency of the complaint. The district attorney in Benz had disapproved a private complaint because it failed to make out a prima facie case.
The Commonwealth cited Commonwealth v. Benz in support of its position. In Commonwealth v. Benz 523 Pa. 203, 565 A.2d 764 (1989), an issue similar to that raised herein had been waived. However, in that case, the issue was raised for the first time on appeal.
In 1989, our supreme court first distinguished between a prosecutorial decision that is based upon a policy determination and one that is based upon a legal evaluation of the sufficiency of the complaint. In Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989) (plurality), a private complaint was disapproved for insufficient evidence. The common pleas court applied the Eisemann standard and held that the prosecutor did not abuse his discretion in disapproving the complaint.
In determining whether to approve or disapprove a private criminal complaint, the district attorney may rely on either a legal assessment of the complaint, or wholly discretionary matters of policy. Commonwealth v. Benz 523 Pa. 203, 565 A.2d 764 (1989). When the district attorney rests the disapproval of a private criminal complaint on wholly discretionary matters of policy, this Court will not disturb that determination, absent a gross abuse of discretion.
Pa. R.Crim. P. 506. If the district attorney disapproves the complaint, the private complainant can petition the Court of Common Pleas for a review of the disapproval. In Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989), our Supreme Court reviewed this rule, in an earlier version, Pa. R.Crim. P. 133. The questions were (1) whether the trial court's decision upholding a prosecutor's decision not to approve a private complaint was appealable to the Superior Court and (2) whether the trial court's review can include a review of a prosecutor's policy decision not to prosecute, e.g., for lack of resources or case load priorities.
Moreover, the Commonwealth's position would allow the Court of Common Pleas to review the District Attorney's decision without providing a mechanism to correct any possible improper assessment of that decision. See Commonwealth v. Benz, 523 Pa. 203, 209 n. 6, 565 A.2d 764, 768 n. 6 (1989). Accordingly, we cannot conclude Appellant's right to appeal is violative of the separation of powers doctrine.
The court in this case properly looked to the facts set forth by Appellant in the petition. We wish to add on this point that the court correctly determined that the passage cited by Appellant, which appears in the concurring opinion by Justice Larsen in Commonwealth v.Benz, 523 Pa. 203, 565 A.2d 764 (1989), is not controlling in this matter. Cited is the following: "Thus, upon the filing of a private criminal complaint involving acts which constitute a clear and present danger to any person or to the community, the issuing authority must conduct a preliminary hearing.
We disagree. A recent Supreme Court decision, Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989), involved the decision by a district attorney not to prosecute a defendant police officer who shot an individual during an altercation at a hospital in Pittsburgh. Although the coroner recommended charges be filed for voluntary manslaughter, the district attorney refused.
In determining whether to approve or disapprove a private criminal complaint, the district attorney may rely on either a legal assessment of the complaint, or wholly discretionary matters of policy. Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989). When the district attorney rests the disapproval of a private criminal complaint on wholly discretionary matters of policy, this Court will not disturb that determination, absent a gross abuse of discretion.