Armolt, J. v. Kerestes, J. ( 2016 )

J. S36026/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JEFFREY ARMOLT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOHN KERESTES, SUPERINTENDENT OF :
SCI MAHANOY : No. 2013 MDA 2015
Appeal from the Order Entered October 29, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division No(s): CP-54-MD-0001369-2015
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JUNE 10, 2016
Appellant, Jeffrey Armolt, appeals pro se from the October 29, 2015
Order denying and dismissing his Petition for Review of the Schuylkill County
District Attorney’s disapproval of his Private Criminal Complaint. On
December 22, 2003, Appellant pled guilty to three counts of raping a
juvenile, and is currently serving a sentence of 15 to 30 years of
incarceration at SCI-Mahanoy. In his Private Criminal Complaint, Appellant
sought to have SCI-Mahanoy Superintendent John Kerestes criminally
prosecuted for Obstructing Administration of Law or Other Governmental
Function, Official Oppression, False Imprisonment, and Criminal Conspiracy.1
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 5101; 18 Pa.C.S. § 5301; 18 Pa.C.S. § 2903; and 18 Pa.C.S.
§ 903, respectively.
J.S36026/16
After careful review, we affirm the trial court’s Order denying and dismissing
Appellant’s Petition.
Appellant’s Underlying Conviction and Judgment of Sentence
Appellant’s Private Criminal Complaint alleged that Superintendent
Kerestes is holding him subject to an illegal sentence. We briefly summarize
the factual and procedural history of Appellant’s underlying conviction and
sentencing as follows.
[O]n February 24, 2002, a 12-year-old juvenile, K.S. gave birth
to a premature baby at Gettysburg Hospital. Hospital staff
contacted the State Police. The trooper assigned to the case
interviewed K. S. who reported that [Appellant] (DOB 5/1/1966)
engaged in various sexual acts with her, including 15-20 acts of
sexual intercourse. The . . . trooper obtained blood samples from
K. S. and [Appellant], as well as a swab from the baby. Testing
was allegedly completed by Cellmark Diagnostics Lab indicating
that the "data are consistent with [Appellant] being the biological
father of the baby." The baby died on March 6, 2002.
Trial Court Opinion, filed 1/8/15, at 2 (adopted by this Court in
Commonwealth v. Armolt, No. 125 MDA 2015, unpublished memorandum
at 1 (Pa. Super. filed July 23, 2015)).
On March 27, 2002, Appellant was arrested and charged with fifteen
counts of Rape, 18 Pa.C.S. § 3121(a)(6), and related offenses, in connection
with incidents occurring in Adams County between September 2001 and
February 2002. Id.
On December 9, 2002, in the period of time between Appellant’s arrest
and his eventual sentencing, the legislature passed Act 162 of 2002. H.B.
976, 2002 Leg., 185th Sess. (Pa. 2002) (hereinafter “Act 162”). Act 162
-2-
J.S36026/16
both repealed Section 3121(a)(6) and simultaneously re-enacted the same
prohibitions under a different subsection at 3121(c). Section 3121(a)(6)
provided:
(a) Offense defined. A person commits a felony of the first
degree when he or she engages in sexual intercourse with
a complainant:
***
(6) Who is less than 13 years of age.
Id. In its current form, Section 3121(c) provides:
(c) Rape of a child – A person commits the offense of rape of a
child, a felony of the first degree, when the person engages in
sexual intercourse with a complainant who is less than 13 years
of age.
Id. Act 162, in substance, simply reorganized Section 3121 without making
any substantive changes to the offense codified therein.
On December 22, 2003, Appellant pled guilty to three counts of Rape
pursuant to 18 Pa.C.S. § 3121(a)(6), and was sentenced to a period of
incarceration of 15 to 30 years. Trial Court Opinion, filed 1/8/15, at 4, 7.
Appellant did not file a direct appeal from his Judgment of Sentence. Id. at
10.
Almost three years later, Appellant brought the first of four challenges
to his conviction and sentence. On January 16, 2007, Appellant filed a
Petition under the Post Conviction Relief Act (“PCRA”), which argued inter
alia, that his Judgment of Sentence under Section 3121(a)(6) was illegal
because the subsection was repealed prior to his sentencing. Trial Court
-3-
J.S36026/16
Opinion, filed 1/8/15, at 10, 17-18. The PCRA Court dismissed Appellant’s
Petition, and this Court affirmed. Commonwealth v. Armolt, No. 294 MDA
2008, unpublished memorandum at 1 (Pa. Super. filed January 2, 2009).
Since then, Appellant has unsuccessfully sought relief in two additional PCRA
Petitions and filed a civil habeas corpus action against several government
officials. See Trial Court Opinion, filed 1/8/15, at 20 (detailing Appellant’s
second PCRA Petition, which included a challenge to Appellant’s sentence,
and denying Appellant’s third PCRA Petition); Commonwealth v. Armolt,
No. 53 MDA 2014, unpublished memorandum at 1 (Pa. Super. filed July 23,
2014) (affirming the denial of Appellant’s habeas corpus action).
Appellant’s Private Criminal Complaint
With respect to the instant appeal, the factual and procedural history
is as follows:
On or about August 15, 2015, [Appellant] filed a private criminal
complaint against John Kerestes, the Superintendent of SCI-
Mahanoy.
***
The facts that [Appellant] used to support his criminal charges
against Superintendent Kerestes was [sic] that [Appellant] was
unlawfully detained . . . because the statute on his sentencing
order and commitment forms is that of [Section 3121(a)(6)],
which [Appellant] alleges was repealed by the Act of December
9, 2002, P.L. 1350, No. 162 #2.
On September 23, 2015, the Schuylkill County District Attorney
disapproved of the private criminal complaint because there was
no legal basis for the complaint. The District Attorney attached
the April 12, 2004 sentencing order from Adams County which
shows that [Appellant] was sentenced to 15 to 30 years. By
-4-
J.S36026/16
Order of Court dated October 29, 2015, [the trial court]
dismissed Appellant’s Motion to Proceed In Forma Pauperis as
well as his request for [c]ourt review of the District Attorney’s
disapproval of private criminal complaint pursuant to
[Pa.R.Crim.P. 506].
Trial Court Opinion, filed 1/7/16, at 2-3.
Appellant filed the instant timely appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.
Appellant presents, verbatim, the following “Questions [ ] For the
Court:”
1. Does the Commonwealth Attorney’s disapproval of Appellant’s
private criminal complaint, where evidence set forth a strong
prima facie showing that appellant’s imprisonment is illegal as a
matter of law, show that the Commonwealth Attorney abused
her discretion and /or acted in bad-faith?
2. Did the trial court abuse it’s discretion and /or act in bad-
faith by failing to recognize that the Commonwealth Attorney did
not properly investigate the claims, allegations or evidence as
contained in Appellant’s private criminal complaint?
3. Must Appellant’s sentence be in accordance with the law at
final judgment?
Appellant’s Brief at 3.
Analysis
Appellant challenges the legality of his detention, the District
Attorney’s denial of his Private Criminal Complaint filed against prison
officials, and the trial court’s subsequent dismissal of his Petition for Review.
Appellant bases all of his issues on his contention that because 18 Pa.C.S. §
-5-
J.S36026/16
3121(a)(6) was repealed prior to his sentencing, his Sentencing Order is
invalid. We, thus, address all of his issues together.2
In addressing a District Attorney’s refusal to prosecute a private
criminal complaint, our Court has consistently held that a determination that
a private criminal complaint “lacks prosecutorial merit” is a policy
determination. In re Private Complaint of Adams, 764 A.2d 577, 581
(Pa. Super. 2000). When a District Attorney’s denial of a private criminal
complaint is based wholly on policy considerations, then the trial court must
defer to the prosecutor’s discretion absent a gross abuse of that discretion.
In re Wilson, 879 A.2d 199, 215 (Pa. Super. 2005). An appellate court will
review the trial court’s decision for an abuse of discretion, in keeping with
settled principles of appellate review of discretionary matters.
Commonwealth v. Michaliga, 947 A.2d 786, 791-92 (Pa. Super. 2008).
A District Attorney’s decision not to prosecute a criminal complaint for
policy reasons carries a presumption of good faith and soundness. Id. at
792. To challenge that decision before the trial court, a complainant must
2
Appellant set forth three “Questions for the Court,” but provided only two
argument sections with headings. He nonetheless addressed his third
Question within the discussion of his first and second Questions. The briefing
requirements of our rules of appellate procedure require that the “argument
shall be divided into as many parts as there are questions to be argued.”
Pa.R.A.P. 2119(a). Generally, issues raised in a Statement of Questions
Involved but not developed in the Brief’s argument section will be deemed
waived. Harkins v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super.
1992). Although Appellant did not provide a separate argument section for
his third issue, because he addressed it in the context of his first two issues,
we will not deem it waived.
-6-
J.S36026/16
show that the District Attorney’s decision amounted to bad faith, fraud, or
unconstitutionality. In re Private Criminal Complaint of Rafferty, 969
A.2d 578, 581-82 (Pa. Super. 2009). Specifically, he must show that the
facts of the case lead only to the conclusion that the District Attorney’s
decision was patently discriminatory, arbitrary or pretextual, and therefore,
not in the public interest. Michaliga, 947 A.2d at 792.
In the instant case, the letter the District Attorney sent to Appellant
denying his Private Criminal Complaint included a copy of the Sentencing
Order which sentenced Appellant to 15 to 30 years of imprisonment
pursuant to his guilty plea to three counts of Rape under Section
3121(a)(6). Appellant argues that because Section 3121(a)(6) was repealed
prior to his sentencing, this Sentencing Order is invalid and his detention is,
therefore, illegal.
Appellant has raised this same argument multiple times in his
unsuccessful PCRA filings. See Slip. Op., supra at 3-4. In attacking his
sentence through the instant vehicle, Appellant is attempting to circumvent
the PCRA time-bar and the law of the case. See, e.g., Commonwealth v.
Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (“[A] defendant cannot escape
the PCRA time-bar by titling his petition or motion as a writ of habeas
corpus”). See also Commonwealth v. Starr, 664 A.2d 1326, 1333 (Pa.
1995) (recognizing that Pennsylvania’s well-established Law of the Case
-7-
J.S36026/16
Doctrine bars a judge from revisiting rulings previously decided by another
judge of the same court).
Moreover, Appellant’s argument is without merit.
[E]ven though a statute is repealed, if some or all of its
provisions are reenacted so that the conduct prohibited in the
first statute remains censured by the re-enactment, there is
nothing which interferes with the power of the State to prosecute
the matter without interruption.
In Re Dandridge, 337 A.2d 885, 889 (Pa. 1975). See also
Commonwealth v. Beattie, 93 Pa. Super. 404, 412 (Pa. Super. 1928)
(“The prevailing view is that even where a statute is expressly repealed and
all, or some, of its provisions are at the same time re-enacted, the re-
enactment neutralizes the repeal and the provisions of the repealed act
which are thus re-enacted continue in force without interruption so that all
rights and liabilities that have accrued thereunder are preserved and may be
enforced”).
In the instant case, Act 162 repealed 18 Pa.C.S. § 3121(a)(6) while
simultaneously re-enacting its prohibitions at 18 Pa.C.S. § 3121(c). This is a
mere change in form but not substance. Appellant’s conviction and sentence
were not affected by this renumbering. Accordingly, Appellant’s claim that
he is being held subject to an illegal sentencing order is without merit. See
Dandridge, supra. As a result, his claims against Superintendent Kerestes
are without merit.
-8-
J.S36026/16
Appellant relies on Commonwealth v. Bangs, 393 A.2d 720 (Pa.
Super. 1978), and Bell v. Maryland, 378 U.S. 226 (1964), for the
proposition that the Commonwealth may not continue to detain him under a
statute that was repealed before final judgment was entered. In Bangs, the
statute at issue lowered the applicable statutory rape age of consent from 16
years of age to 14 years of age. Bangs, 393 A.2d at 722. At the time the
statute was changed, the defendant was awaiting trial on charges that he
had sexual contact with a 14-year-old child. Id. At the time of the alleged
acts, the victim was considered incapable of consent, but under the
amended statute the defendant’s conduct no longer fell within the definition
of statutory rape. Under the circumstances of that case, our Supreme Court
held that the Commonwealth was without authority to continue the
defendant’s prosecution under the now-repealed statute. Id. at 722.
In Bell, the criminal trespass statute under which the defendants were
convicted was abolished while the case was pending on appeal and their
convictions were overturned. Bell, 378 U.S. at 228. In neither Bell nor
Bangs was the substantive portion of the repealed statute simultaneously
re-enacted. Appellant’s reliance is, thus, misplaced.
Our review of the record reflects that, contrary to Appellant’s
contention, the District Attorney did investigate Appellant’s complaint prior
to denying it by, inter alia, obtaining a copy of Appellant’s valid sentencing
order. Based on the foregoing, we discern no merit to Appellant’s issues.
-9-
J.S36026/16
Superintendent Kerestes has continuing legal authority to detain Appellant,
and the trial court did not abuse its discretion in denying Appellant’s Petition
for Review.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2016
- 10 -