In Re: Smith, A. Appeal of: Smith, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ANTHONY TUSWEET SMITH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: ANTHONY TUSWEET :
SMITH :
:
:
:
: No. 54 WDA 2020
Appeal from the Order Entered November 13, 2019
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-MD-0000855-2019
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 21, 2020
Appellant, Anthony Tusweet Smith, appeals from the November 13,
2019 order of the Beaver County Court of Common Pleas affirming the Beaver
County District Attorney’s disapproval of Appellant’s second private criminal
complaint. In his second private criminal complaint filed August 6, 2019,
Appellant alleged that the prosecutors and investigators involved in his 2002
conviction for aggravated assault and attempted murder had engaged in a
criminal conspiracy to convict him, and that this conspiracy was ongoing. We
affirm.
The trial court summarized the proceedings in its order affirming the
denial, as follows:
[Appellant] sought approval from the Beaver County District
Attorney to file a private criminal complaint against Kyle Goosby,
James Essek, Linda Barr, Kim Tesla, John J. Tobin, Brian
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Zimmerman, Jennifer Anne Petersen, Anthony Berosh, Thomas
Fuchel, Paul Radatovich, and Monte Bruce Jackson, alleging
criminal conspiracy to commit numerous offenses stemming from
[Appellant’s] arrest and prosecution in Beaver County Case No.
967-2001. By letter dated October 1, 2019, District Attorney
David J. Lozier disapproved the complaint: “You (Smith) raised
the identical allegations, facts and claims in your Private Criminal
Complaint from June 2017, which was disapproved because the
Complaint was time barred. . . . The statute of limitations for
conspiracy at 18 [Pa.C.S. §] 903(a)(1)(2)(g)(1) has expired.
Although you claim that the actions of defendants occurred on
‘March 21, 2001[,] continuing,’ you make no claim of any action
by any of the named individuals after your trial.”
It is well-settled that, if the Commonwealth
disapproves a private criminal complaint, the
complainant can petition the Court of Common Pleas
for review, and the trial court must first correctly
identify the nature of the reasons given by the district
attorney for denying the complaint. Where the district
attorney’s denial of a private criminal complaint is
based on a legal evaluation of the evidence, the trial
court undertakes a de novo review of the matter.
In re Private Criminal Complaints of Rafferty, 969 A.2d 578, 581
(Pa. Super. 2009) (internal citations and quotations omitted).
Upon review, the [c]ourt agrees that the alleged offenses
are beyond the applicable statute of limitations. See 42 Pa.C.S.
§ 5552. . . .
Order, 11/13/19, at unnumbered 1–2.1
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1 The trial court relied on this order as its opinion pursuant to Pa.R.A.P.
1925(a). Rule 1925 Opinion, 1/28/20, at 1 (“[T[he [c]ourt has determined
that the reasons for the appealed Orders have been set forth in the Order
dated November 13, 2019, and that no further Opinion is necessary.”).
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On March 15, 2002, a jury found Appellant guilty of one count of
aggravated assault and two counts of criminal attempt to commit homicide.2
Appellant was sentenced to a term of incarceration of ten to twenty years and
directed to pay restitution. The trial court denied post-sentence motions, and
Appellant filed a direct appeal. This Court, inter alia, vacated the restitution
portion of the judgment of sentence, remanded to the trial court to determine
the proper amount of restitution, and our Supreme Court denied further
review. Commonwealth v. Smith, 849 A.2d 610, 1442 WDA 2002 (Pa.
Super. filed February 3, 2004) (unpublished memorandum), appeal denied,
853 A.2d 361, 129 WAL 2004 (Pa. filed July 1, 2004).
We summarized the ensuing procedural history in our Memorandum
affirming the dismissal of Appellant’s fourth PCRA petition, as follows:
Appellant filed his first, counseled, PCRA petition on
September 20, 2005. Following a hearing, the PCRA petition was
denied on November 5, 2007, and Appellant did not appeal.
Appellant filed a second, pro se PCRA petition on June 3, 2008.
The petition was dismissed on September 22, 2008. He filed a
third pro se PCRA petition on August 28, 2013. His third PCRA
petition was found to be untimely, and the court therefore denied
the petition. The Superior Court affirmed the order denying the
petition. [Commonwealth v. Smith, 106 A.3d 159, 137 WDA
2014 (Pa. Super. filed August 13, 2014) (unpublished
memorandum)]. A petition for allowance of appeal filed with the
Pennsylvania Supreme Court was denied on December 30, 2014.
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2 18 Pa.C.S. §§ 2702(a)(1), 901, and 2501, respectively.
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Commonwealth v. Smith, 158 A.3d 177, 322 WDA 2016 (Pa. Super. filed
September 12, 2016 (unpublished memorandum).3 We determined that
Appellant’s fourth and fifth PCRA petitions were untimely and no exceptions
to the PCRA’s time-bar applied. Id.; Commonwealth v. Smith, 178 A.3d
158, 382 WDA 2017 (Pa. Super. filed September 14, 2017 (unpublished
memorandum), appeal denied, 183 A.3d 349, 385 WAL 2017 (Pa. filed March
28, 2018).
On June 1, 2017, Appellant filed his first private criminal complaint
against Harmony Township Police Sergeant James Essek alleging that
Sergeant Essek filed a “false criminal complaint” against him and violated 18
Pa.C.S. § 903 by conspiring with Kyle Goosby, Linda Barr, Kim Tesla, John J.
Tobin, Brian K. Zimmerman, Jennifer Ann Petersen, Anthony Berosh, Thomas
Phillis, Thomas Fuchel, and Monte Bruce Jackson, the same individuals named
in the instant case, to commit various criminal offenses against him. The
District Attorney disapproved the private criminal complaint, indicating that
because all of the alleged acts had occurred in 2001 and 2002, the private
criminal complaint was filed beyond the statute of limitations. We held that
the trial court did not err and affirmed the denial of the private complaint. In
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3 In addition, Appellant, pro se, filed a federal petition for writ of habeas
corpus that was denied on July 13, 2015. Smith v. Gilmore, 2015 WL
4389292 (W.D.Pa. filed July 13, 2015). A certificate of appealability was
denied on April 8, 2016.
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re Private Criminal Complaint of Anthony Smith, 193 A.3d 1127, 1213
WDA 2017 (Pa. Super. filed June 28, 2018) (unpublished memorandum).
Thereafter, Appellant filed a sixth pro se PCRA petition. We quashed
Appellant’s pro se appeal from the November 2019 denial of the sixth PCRA
petition due to Appellant’s failure to comply with Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018).
As noted supra, Appellant filed a second private criminal complaint, the
instant complaint, on August 6, 2019, alleging that the prosecutors and
investigators involved in his 2002 conviction for aggravated assault and
attempted murder engaged in a criminal conspiracy to convict him. The
Beaver County District Attorney disapproved the private criminal complaint,
and the Beaver County Court of Common Pleas affirmed. Appellant filed a
notice of appeal. The trial court did not order Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
As explained supra, the trial court relied on its November 13, 2019 order as
its opinion pursuant to Rule 1925(a).
Appellant raises the following issues in his pro se brief:
I. Whether the trial court erred in affirming the district attorney’s
decision without scheduling briefing on the grounds of exhaustion
of the statute of limitations?
II. Whether the trial court erred in affirming that the alleged
offenses are beyond the applicable statute of limitations, under
title 42 Pa.C.S.§ 5552, et. seq.?
Appellant’s Brief at 4.
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We note our standard of review:
When 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. Thereafter, 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.
* * *
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. This
deferential standard recognizes the limitations on judicial power
to interfere with the district attorney’s discretion in these kinds of
decisions.
In re Miles, 170 A.3d 530, 533 (Pa. Super. 2017).
In this case, Appellant has relied upon the same theory that he asserted
in his first private criminal complaint, docketed at 1213 WDA 2017. As noted
supra, and as reitereated by the trial court herein, the Beaver County District
Attorney explained:
You . . . raised the identical allegations, facts and claims in
your Private Criminal Complaint from June 2017, which
was disapproved because the Complaint was time
barred. . . . The statute of limitations for conspiracy at 18
[Pa.C.S. §] 903(a)(1)(2)(g)(1) has expired. Although you claim
that the actions of defendants occurred on “March 21,
2001[,] continuing,” you make no claim of any action by
any of the named individuals after your trial.
Order, 11/13/19, at unnumbered 1–2 (emphases added).
The critical problem with Appellant’s present claim is that it was
previously addressed and rejected by this Court in the prior appeal of the
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disapproval of Appellant’s first private criminal complaint. Private Criminal
Complaint of Smith, 193 A.3d 1127, 1213 WDA 2017. Therein, we affirmed
the District Attorney’s disapproval of the complaint based on the expiration of
the applicable statute of limitations. Id. at 3–4. In addition, we affirmed the
trial court’s denial of Appellant’s request to develop the record for review of
the District Attorney’s disapproval of Appellant’s private criminal complaint.
Id. at 5. These rulings became the law of the case.
The doctrine of the law of the case includes the principle that when this
Court has decided an issue presented to it in an appeal, we will not revisit that
issue in a subsequent appeal, even if the ruling was erroneous. See
Commonwealth v. McCandless, 880 A.2d 1262 (Pa. Super. 2005) (en
banc). There are three, limited exceptions to the doctrine: a material change
in the facts, an intervening change in the law, or the prior ruling was so clearly
incorrect that it would be manifestly unjust to enforce the holding. Id. None
of those limited exceptions applies in this case. Moreover, we may affirm the
trial court on any grounds supported by the record. Commonwealth v.
Turner, 73 A.3d 1283, 1286 n.5 (Pa. Super. 2013).
The trial court appropriately addressed the District Attorney’s
disapproval of Appellant’s second private criminal complaint. As in the first
private criminal complaint, Appellant alleged that prosecutors and
investigators engaged in a criminal conspiracy to submit false evidence to
unlawfully convict him of the aggravated assault and attempted murder of
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Kyle Goosby. Appellant’s trial concluded in 2002. Thus, according to
Appellant’s conspiracy theory, the investigators and prosecutors who
conspired against Appellant completed their conspiracy in 2002 upon
Appellant’s conviction and sentence. See 18 Pa.C.S. 903(a)(1)(2)(g)(1); 42
Pa.C.S. § 5552(d) (“An offense is committed either when every element
occurs, or, if a legislative purpose to prohibit a continuing course of conduct
plainly appears, at the time when the course of conduct or the complicity of
the defendant therein is terminated”). The statute of limitations for the
criminal conduct Appellant alleged, expired long before the filing of his private
criminal complaint, see 42 Pa.C.S. § 5552(a) and (b),4 and the trial court did
not commit an error of law in affirming the District Attorney’s disapproval of
Appellant’s complaint. See Miles, 170 A.3d at 534 (when a district attorney
disapproves of a private criminal complaint based on a legal conclusion, the
trial court engages in de novo review of the district attorney’s determination
for an error of law; the appellate court applies the same standard of review to
the trial court’s determination).
Order affirmed.
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4 The statute sets forth the general rule regarding the statute of limitations
for the various “major” offenses. 42 Pa.C.S. § 5552(a) and (b).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2020
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