Disapproval of Private Criminal Complaint

In Re: Private Comp. Filed by L. Ajaj, 253 A.3d 722 (Pa. Super. 2020), allocatur granted July 26, 2021, appeal docket 55 MAP 2021

In this case, the court will consider the Commonwealth’s disapproval of a private complaint filed by Luay Ajaj (Ajaj) against his wife (Mother) for violations of 18 Pa.C.S.A. § 2904(a) (interference with custody of children) and § 2909(a) (concealment of whereabouts of a child). As the trial court summarized the underlying facts:

The current saga began in August 2017, when the mother of the two children, then approximately one and four years old, left with them and [Ajaj] from the home in West Norriton, Pennsylvania, where the family, all United States citizens, had lived since the children’s birth, on a trip to Iraq. While there, she and her uncles took the children away to an undisclosed location. Ajaj has been on an unfailing quest to get them back ever since.

Slip op. at 2. In 2018, Ajaj filed an emergent petition for custody of the children in the Family Division of the Montgomery County Court, which subsequently entered an order deeming the matter an emergency and granting sole legal and physical custody to Ajaj pending a full hearing upon the children’s return. After Mother did not appear at scheduled proceedings, a bench warrant was issued for her arrest and the family court affirmed the award of sole legal and physical custody to Ajaj. Thereafter, an order was entered in the domestic proceedings that directed Montgomery County law enforcement agencies to cooperate in the capture of Mother and the return of the children.

In 2019, Ajaj filed a private criminal complaint with exhibits, seeking to charge Mother with interference with custody of children and concealing the whereabouts of children. The District Attorney’s Office issued a disapproval of the complaint, citing “evidentiary issues.” Because the disapproval was based on evidentiary issues, Ajaj then filed a petition for de novo review of the disapproval and the trial court scheduled a hearing on the petition. 

On the day of the hearing, the Commonwealth filed an answer to the petition in which it asserted for the first time that the complaint was properly disapproved, not only for the two evidentiary issues identified – insufficient probable cause to establish that Mother, rather than her uncles, committed a crime, and the lack of resources to investigate the merits of the complaint – but also for policy considerations. The Commonwealth then argued policy considerations at the hearing, including the Commonwealth’s policy of not approving private complaints alleging a felony, the Commonwealth’s use of caution in criminalizing actions of parents involved in custody disputes, and the availability of alternative civil as well as federal remedies.

The trial court entered an order granting Ajaj’s petition and reversing the disapproval of his private complaint. In its subsequent 1925(b) opinion, the trial court addressed the Commonwealth’s policy arguments, as summarized by Superior Court:

First, it considered the Commonwealth’s contention that it did not approve private complaints alleging a felony. After suggesting that such a policy could have been easily stated when it first disapproved the complaint, the court noted that the Commonwealth did not present any evidence of such guidance to its prosecuting attorneys. Trial Court Opinion, 5/8/20, at 27. Moreover, such a policy struck the court “as an especially bad one. It wipes from the books for consideration in the private-complaint setting the most serious of classic crimes spelled out in the Crimes Code,” including third-degree murder, kidnapping, forcible rape, and the crimes charged in the instant case: interference with custody of children and concealment of the whereabouts of a child. Id.

The trial court next considered the policy assertion that caution should be exercised in criminalizing actions of estranged parents involved in a custody dispute. While acknowledging such a policy might be laudable when one parent is attempting to tilt the playing field in what should be strictly a domestic-relations rather than criminal case, “that is not what happened here.” Id. at 28. Instead, despite the best efforts of the judge in the custody case to apply civil remedies, the judge nevertheless was compelled to call upon law enforcement agencies to cooperate in Mother’s capture and the return of the minor children. Id. The extraordinary circumstances of this case “should not be overcome by the [Commonwealth’s] ordinary reluctance to intervene in civil suits.” Id. at 29.

The court next considered the Commonwealth’s argument that civil remedies were available to Ajaj. While recognizing that the existence of civil remedies can serve as a legitimate policy reason for disapproving a complaint, “here that policy reason does not apply.” Id. (citing, inter aliaCommonwealth v. Cooper, 710 A.2d 76, 81 (Pa. Super. 1998)). As the court explained:

Essentially this court through its orders was acknowledging that the civil remedies Ajaj had pursued to the hilt and been granted would still be inadequate, and that [Mother’s] criminal actions in defiance of the court’s orders required the intervention of all the organs of criminal law enforcement to have any force and effect.

Id. (some capitalization omitted).

Slip op. at 11-12 (footnote omitted). The trial court dismissed the Commonwealth’s “evidentiary issues” relating to custody, reasoning that, as summarized by Superior Court:

… Ajaj was the best source of evidence concerning Mother’s conduct. As for Mother’s actions in possibly preserving the children from danger or fleeing domestic or child abuse, any such issues could have been raised before the court in the custody proceedings. Despite Mother’s assurances she would return to Montgomery County with the children, she never did so. Ultimately, the judge handling the custody proceedings not only awarded sole legal and physical custody to Ajaj— grounding her ruling firmly in the “best interests of the children”—but also issued bench warrants for Mother and directed law enforcement to cooperate in securing the children’s return. See Trial Court Opinion, 5/8/20, at 21-24. Having reviewed the evidentiary concerns relating to custody, the trial court concluded that Ajaj’s complaint made out a prima facie case that Mother concealed the whereabouts of the children in violation of 18 Pa.C.S.A. § 2909(a). The trial court’s analysis and conclusion apply equally to a finding that the complaint made out a prima facie case of interference with the custody of the children in violation of 18 Pa.C.S.A. § 2904(a). “For the Commonwealth to put forward the possibility of evidence of abuse as grounds for refusing prosecution in these circumstances is an affront to the court that found no such credible evidence after counselled proceedings at which [Mother] had several opportunities, indeed was compelled by the court, to appear and testify.” Id. at 24-25 (some capitalization omitted).

With respect to witnesses and documents being in Iraq, the trial court similarly dismissed those concerns. The court noted that Mother failed to comply with the directive in the custody proceedings to provide documents relating to any parallel proceedings in Iraq. Further, the court rejected the Commonwealth’s contention that it lacked resources to investigate evidentiary matters, noting that federal authorities

were “blinking red” with signals to the [Commonwealth] to file charges and have a warrant issued so that the federal government would have the requisite basis upon which to pursue the matter and assist the [Commonwealth] with the only means possible of securing capture of [Mother] and, hopefully by extension, rescue the children.

Id. at 26. The court noted the Commonwealth’s awareness of the FBI and State Department’s indications to Ajaj that “he would have little chance of getting their best efforts to secure the capture of the mother and the return of the children” if charges were not filed and a warrant issued. Id

Slip op. at 9-10.

Superior Court affirmed the trial court’s reversal order, concluding that:

In the instant case, not only did the Commonwealth raise policy considerations in an untimely manner, but also it raised policy considerations that deviate from moral rectitude and sound thinking under the facts as developed in the custody proceedings and as summarized in Ajaj’s complaint and exhibits. Therefore, we find the trial court did not abuse its discretion when it found the Commonwealth failed to advance sufficient policy reasons to support disapproval of the complaint. As explained above, we also find that the trial court did not commit error of law in rejecting the Commonwealth’s disapproval based on evidentiary issues.

Slip op. at 14.

The Supreme Court granted allocatur as to the following issue:

Did the Superior Court err as a matter of law when, in a published opinion, it affirmed the lower court order overturning the Commonwealth’s disapproval of a private criminal complaint filed by Luay Ajaj against the mother of his children, despite the numerous evidentiary and policy concerns cited by the Commonwealth, including the lack of a prima facie case, an inability to thoroughly investigate the matter because all possible witnesses and evidence (with the exception of Ajaj) are in Iraq, the Commonwealth’s policy of not accepting criminal complaints alleging felonies, and its general policy of exercising caution when it comes to criminalizing actions taken during custody disputes which are better handled through civil proceedings, and despite the complainant’s failure to overcome the presumption of good faith and soundness attached to the Commonwealth’s decision to not prosecute?


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