In Re: Kerwin, R. Appeal of: Kerwin, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: RYAN KERWIN IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: RYAN KERWIN
No. 501 EDA 2014
Appeal from the Order of January 24, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No.: CP-09-MD-0003259-2013
BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 18, 2014
Ryan Kerwin appeals, pro se, the January 24, 2014 order affirming the
Bucks County District Attorney’s Office’s disapproval of Kerwin’s private
criminal complaint. We dismiss the appeal.
The trial court has summarized the facts of this case as follows:
On November 26, 2007, Kerwin was arrested for criminal
conspiracy, retail theft, and receiving stolen property. At a trial
by jury held on June 23 and 24, 2008, in the Court of Common
Pleas of Bucks County, Kerwin was found not guilty of all
charges.
On October 20, 2009, Kerwin filed a civil complaint against
Corporal Victoria Crosier, the arresting officer in his criminal
matter, asserting causes of action for malicious prosecution and
abuse of process. A jury trial on that civil case was held on
August 26, 27, and 28, 2013. It resulted in a verdict in favor of
Corporal Crosier.
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*
Retired Senior Judge assigned to the Superior Court.
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Kerwin then attempted to file a private criminal complaint with
the Bucks County District Attorney’s Office against a witness,
Anna Carlin, who appeared in both the criminal and civil trials, as
Kerwin alleged the witness committed perjury. The District
Attorney’s Office refused to approve the complaint.
Trial Court Opinion (“T.C.O.”), 3/24/2014, at 1-2 (some capitalization
modified).
In his private criminal complaint, Kerwin alleged that Anna Carlin
committed perjury because of inconsistencies between the testimony that
she provided in the criminal and civil trials. Specifically, Kerwin alleged that
while Ms. Carlin testified at Kerwin’s criminal trial that she did not witness
the alleged theft and was not able to identify the involved suspects, she
testified five years later at Kerwin’s civil trial that she did witness the theft,
and she identified Kerwin as the individual that committed the theft. Brief
for Kerwin at 13-14.
On November 18, 2013, Kerwin filed a motion to appeal the District
Attorney’s denial of his private criminal complaint. The trial court held a
hearing on Kerwin’s motion on January 24, 2014, after which it denied his
motion. Kerwin timely filed a pro se notice of appeal on February 7, 2014.
On February 24, 2014, the trial court directed Kerwin to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
to be served upon the court no later than March 17, 2014. Kerwin timely
filed a concise statement on March 11, 2014. On March 24, 2014, the trial
court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Kerwin raises the following two questions for our review:
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A. Whether [Kerwin] produced sufficient evidence under the
legal and evidentiary standard needed to prosecute Anna
Carlin with the crime of perjury[?]
B. Whether [Kerwin’s] issues are waived due to improper service
of the instant appeal in the Common Pleas Court or for failure
to purchase transcripts from the January 24, 2014 hearing[?]
Brief for Kerwin at 3.
We note first that Kerwin failed to obtain the January 24, 2014 hearing
transcript. Because of this failure, our ability to review the merits of
Kerwin’s appeal is critically impeded. Accordingly, we begin with Kerwin’s
second issue. There, Kerwin argues that the January 24, 2014 hearing
transcript is unnecessary to his appeal.1 Brief for Kerwin at 20, 22. We
disagree, and conclude that the transcript is essential to this appeal.
To proceed with a private criminal complaint, a complainant must
secure the approval of an attorney for the Commonwealth. Pa.R.Crim.P.
506(A). If the attorney for the Commonwealth disapproves the complaint,
the attorney must notify the complainant of the reasons for the disapproval,
and the complainant may petition the trial court for review of the decision.
Pa.R.Crim.P. 506(B)(2). The trial court’s standard of review is dependent
upon the reasons provided by the district attorney for the disapproval.
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1
Kerwin also challenges the trial court’s determination that Kerwin
failed to serve the trial court with his notice of appeal, and that we should
deem his issues to be waived. T.C.O. at 5-6. However, the certified record
includes Kerwin’s notice of appeal and indicates that it was timely filed.
Nonetheless, because Kerwin failed to obtain the necessary transcripts for us
to review his claim, we need not address this issue.
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“[W]hen the district attorney disapproves a private criminal complaint solely
on the basis of legal conclusions, the trial court undertakes de novo review
of the matter.” In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en
banc). However, “when the district attorney disapproves a private criminal
complaint on wholly policy considerations, or on a hybrid of legal and policy
considerations, the trial court’s standard of review of the district attorney’s
decision is abuse of discretion.” Id. at 215. In applying the abuse of
discretion standard, the trial court must give deference to the district
attorney’s policy-based decision absent a showing of bad faith, fraud, or
unconstitutionality. Commonwealth v. Brown, 708 A.2d 81, 84 (Pa.
1998).
Similarly, our standard of review also depends upon the district
attorney’s rationale for the disapproval. Where the district attorney’s
decision is based solely upon legal conclusions, and the trial court’s standard
of review is de novo, “the appellate court will review the trial court’s decision
for an error of law. As with all questions of law, the appellate standard of
review is de novo and the appellate scope of review is plenary.” Wilson,
879 A.2d at 214. Where the district attorney’s decision is based upon policy
considerations or a hybrid of legal and policy considerations, and the trial
court’s standard of review is abuse of discretion, “the 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.” Id. at 215.
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In the instant case, Kerwin relies upon the fact that, in notifying him of
the disapproval of his private criminal complaint, the district attorney cited
“insufficient evidence” as the reason for the disapproval. Brief for Kerwin at
18. While we acknowledge that, standing alone, this reason would appear to
be a strictly legal conclusion that would call for de novo review by the trial
court, the district attorney’s letter is not determinative of our conclusion as
to which standard of review controls. After Kerwin received the letter, he
appealed to the trial court, and on January 24, 2014, the trial court held a
hearing on Kerwin’s petition for review of the district attorney’s decision.
During this hearing, the district attorney testified regarding his rationale for
disapproving Kerwin’s private criminal complaint. That testimony must be
considered in identifying the district attorney’s reasons for the disapproval.
Because Kerwin concededly failed to obtain a transcript of the notes of
testimony from that hearing, Brief for Kerwin at 22, the certified record is
insufficient to determine the appropriate standard of review. The trial court
was similarly impaired by the absence of a complete record, noting in its
opinion that, “[b]ecause we do not have the notes of testimony in the
instant matter, we are forced to recall what happened at the hearing from
our personal notes and memory.” T.C.O. at 8.
Kerwin argues that the transcript is not necessary for our review.
Brief for Kerwin at 22. Kerwin’s argument is premised upon a
misunderstanding of the standard of appellate review in cases of this type.
He argues that we must employ a de novo standard and a plenary scope of
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review, and thus must reconsider whether the evidence that he provided is
sufficient to establish a charge of perjury. Id. This is a misstatement of the
proper role of appellate courts.
When an appeal is brought from a common pleas court’s decision
regarding the approval or disapproval of a private criminal
complaint, an appellate court is limited to ascertaining the
propriety of the trial court’s actions. Thus, our review is limited
to determining whether the trial court abused its discretion or
committed an error of law.
Commonwealth v. Brown, 669 A.2d 984, 990 (Pa. Super. 1995) (en banc)
(emphasis in original). Kerwin asserts that “the content of the January 24,
2014 hearing transcripts are [sic] not the subject of the current appeal.”
Brief for Kerwin at 22. Quite to the contrary, the evidence produced at that
hearing was the basis for the trial court’s order from which Kerwin is directly
appealing and is essential to establishing our proper standard of review.
Thus, a transcript of the January 24, 2014 hearing is vital to our review of
the trial court’s actions.
This Court has held that the failure to obtain necessary transcripts
results in the waiver of any claims that are dependent upon those
transcripts.
With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any
transcript necessary to permit resolution of the issues raised on
appeal. Pa.R.A.P. 1911(a). . . . When the appellant or cross-
appellant fails to conform to the requirements of Rule 1911, any
claims that cannot be resolved in the absence of the necessary
transcript or transcripts must be deemed waived for the purpose
of appellate review. It is not proper for either the Pennsylvania
Supreme Court or the Superior Court to order transcripts nor is it
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the responsibility of the appellate courts to obtain the necessary
transcripts.
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)
(some citations omitted).
Kerwin attributes his failure to obtain the transcript to his inability to
afford its purchase. Brief for Kerwin at 23. However, there is no indication
in the record that Kerwin attempted to proceed in forma pauperis.
Furthermore, Kerwin’s financial condition does not obviate the need for a
complete record on appeal, particularly when there are means available to
provide economic assistance in the provision of necessary materials. As our
Supreme Court has stated:
Of course, if a party is indigent, and is entitled to taxpayer-
provided transcripts or portions of the record, he will not be
assessed costs. But, that does not absolve the appellant and his
lawyer of his obligation to identify and order that which he
deems necessary to prosecute his appeal.
Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa. 2011). We acknowledge
that Kerwin did not deem the January 24, 2014 hearing transcript to be
necessary to his appeal. Kerwin’s own assessment of the transcript’s
immateriality is misplaced. As we stated above, Kerwin’s conclusion was
premised upon a misunderstanding of the law. Kerwin’s pro se status does
not absolve him of the need to provide us with what is necessary to permit
us to review his appeal.
Although this Court is willing to liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit upon
the appellant. To the contrary, any person choosing to represent
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himself in a legal proceeding must, to a reasonable extent,
assume that his lack of expertise and legal training will be his
undoing.
In re Ullman, 995 A.2d 1207, 1211-12 (Pa. Super. 2010).
As to the consequences of Kerwin’s failure to obtain the necessary
transcript, our Rules of Appellate Procedure provide, in relevant part:
Rule 1911. Request for Transcript
* * *
(d) Effect of failure to comply. If the appellant fails to take the
action required by these rules and the Pennsylvania Rules of
Judicial Administration for the preparation of the transcript, the
appellate court may take such action as it deems appropriate,
which may include dismissal of the appeal.
Pa.R.A.P. 1911(d). Kerwin’s failure to obtain the transcript of the January
24, 2014 hearing precludes our determination of the appropriate standard of
review, and therefore prevents us from conducting a meaningful review of
the trial court’s order. Accordingly, we are constrained to dismiss Kerwin’s
appeal.2
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2
Because we dismiss the appeal upon the basis of Kerwin’s second
issue, we are unable to address the merits of the claim that he raises in his
first issue.
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Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2014
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