In Re: Brunermer, J. Appeal of: Brunermer, J. ( 2022 )

J-A08032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: JANET L. BRUNERMER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: JANET L. BRUNERMER : No. 1056 WDA 2021
Appeal from the Order Entered August 3, 2021
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-MD-0000152-2021
IN RE: JANET L. BRUNERMER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: JANET L. BRUNERMER : No. 1057 WDA 2021
Appeal from the Order Entered August 3, 2021
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-MD-0000146-2021
IN RE: JANET L. BRUNERMER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: JANET BRUNERMER : No. 1058 WDA 2021
Appeal from the Order Entered August 3, 2021
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-MD-0000147-2021
J-A08032-22
IN RE: JANET L. BRUNERMER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: JANET BRUNERMER : No. 1059 WDA 2021
Appeal from the Order Entered August 3, 2021
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-MD-0000148-2021
IN RE: JANET L. BRUNERMER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: JANET L. BRUNERMER : No. 1060 WDA 2021
Appeal from the Order Entered August 3, 2021
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-MD-0000149-2021
IN RE: JANET L. BRUNERMER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: JANET L. BRUNERMER : No. 1061 WDA 2021
Appeal from the Order Entered August 3, 2021
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-MD-0000150-2021
IN RE: JANET L. BRUNERMER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: JANET L. BRUNERMER : No. 1062 WDA 2021
Appeal from the Order Entered August 3, 2021
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-MD-0000151-2021
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BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 19, 2022
Janet L. Brunermer (Appellant) appeals pro se from the order entered
in the Armstrong County Court of Common Pleas denying her petition for
review of 13 consolidated private criminal complaints. The complaints alleged
that four employees of Apollo Borough, Pennsylvania committed perjury, false
swearing, witness intimidation, and obstruction of justice1 in connection with
Appellant’s prior zoning citation for owning a vacant building.2 On appeal,
Appellant alleges the trial court abused its discretion in allowing the
Commonwealth to dismiss each of her private criminal complaints. We affirm.
The trial court indicates in its September 8, 2021, opinion that it relies
on its August 3, 2021, memorandum, which summarized the underlying facts
and procedural history of this case as follows:
Each of [Appellant’s] petitions refers to several cases, all of
which relate to [her] citation in 2018 for a violation of
Apollo[’s] . . . vacant building ordinance. A hearing on the
citation initially was held on October 25, 2018, before Magisterial
District Judge (“MDJ”) J. Gary DeComo, who found [Appellant]
guilty of violating the ordinance. She appealed to [the trial c]ourt
and, after a summary appeal hearing on June 24, 2019, she again
was found guilty.
In the interim period between the hearings, [Appellant]
submitted several Right to Know Law (“RTKL”) requests to Apollo
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1 18 Pa.C.S. §§ 4902(a), (b), (e), 4903(a), (b), 4952(a)(3), (a)(4), 5101.
2 Neither the trial court’s opinion nor the parties’ briefs provides a citation for
the underlying local zoning ordinance Appellant violated. This does not impact
our review.
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seeking documents related to the vacancy ordinance and its
enforcement. [Appellant] challenged Apollo’s response to several
of those requests before the Pennsylvania Office of Open Records
(“OOR”) and in four mandamus actions filed in [the trial c]ourt.
[Appellant] later filed a fifth mandamus action seeking
enforcement of other OOR determinations regarding RTKL
requests she submitted to Apollo in 2020.[FN 1]
[FN 1 Appellant] twice appealed her summary conviction for
violating Apollo’s vacancy ordinance. Both appeals were
dismissed prior to any disposition on the merits.
[On] December [23,] 2020 and February [2,] 2021,
[Appellant] submitted to the Commonwealth a total of [44] private
criminal complaints for approval. The complaints allege certain
crimes committed by several Apollo employees and/or contractors
1) at the summary hearing before MDJ DeComo, 2) at the
summary appeal hearing before [the trial c]ourt, [ ] 3) in
responding to [Appellant’s] RTKL requests[, and (4) in responding
to Appellant’s freedom of information act (FOIA) request.3]
Trial Ct. Op., 8/3/21, at 1-2.
This appeal concerns 13 of the private criminal complaints. Specifically,
Appellant filed three complaints against Apollo Police Chief Jared Kier, alleging
he committed perjury at both the MDJ and trial court hearings, when he stated
Appellant owned a vacant building and the prior owners were also cited for
violating a vacancy ordinance. Trial Ct. Op. 8/3/21, at 6, 8. Appellant also
filed three complaints against Zoning Officer Brenda Troup, for allegedly
committing perjury at Appellant’s trial court hearing for stating Appellant
owned a vacant building and that she gave Appellant information regarding
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3 We note the trial court does not specifically mention Appellant’s FOIA request
in its initial recitation of facts. However, the trial court does address
Appellant’s FOIA request in its analysis.
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the vacancy ordinance. Id. at 9. Next, Appellant filed two complaints against
Apollo Borough Manager Cynthia McDermott, alleging she committed perjury
and false swearing at Appellant’s MDJ hearing when she testified that
Appellant owned a vacant building, and the prior owners were also cited for
violating a vacancy ordinance. Id. at 10. Lastly, Appellant filed five
complaints against Borough Secretary Deanna Shupe, alleging she committed
witness intimidation and obstructed justice when she did not adequately
respond to Appellant’s RTKL and FOIA requests. Id. at 12-14.
The trial court summarized:
The Commonwealth disapproved all of [Appellant’s]
complaints, concluding [ ] that each of them lacked prosecutorial
merit. [Appellant] thereafter filed a “Complaint in Petition for a
Writ of Mandamus” against Armstrong County District Attorney
Kathleen M. Charlton. See CP-03-MD-0000036-2021. The [trial
c]ourt dismissed the complaint at that case number and directed
[Appellant] to instead file petitions for review under Pa.R.Crim.P.
506(B)(2) [(if Commonwealth disapproves the complaint, it shall
provide reasons, and affiant may petition the court of common
pleas for review of the decision). Appellant] then filed the instant
petitions on June 21, 2021.[FN 1] The petitions collectively seek
review of 13[FN 2] private criminal complaints.
______________________
[FN 1] Although [Appellant’s husband] also is a plaintiff in all of the
related civil mandamus actions, only [Appellant] is listed as a
complainant in the private criminal complaints under review.
[FN 2] Although each of the seven petitions requests review of two
private criminal complaints, there are in fact only a collective total
of 13 complaints attached to the petitions.
Trial Ct. Op. 8/3/21, at 2.
After Appellant petitioned the trial court to review 13 of her dismissed
complaints, the trial court ordered the Commonwealth to “clarify its reasons
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for” dismissal. Trial Ct. Op. 8/3/21, at 2-3. The Commonwealth indicated
“that it declined to further investigate or approve all of the private criminal
complaints for both legal and policy reasons.” Id. at 3. The Commonwealth
stated specifically that none of the complaints set forth a prima facie case, the
number of complaints and delay in filing of them “call their underlying merit
into question,” “the original 44 complaints were submitted together on two
dates in December 2020 and February 2021, making investigation
impossible[,]” Appellant had civil remedies available to her, and the
Commonwealth “does not, as a matter of policy, become involved in municipal
ordinance disputes[.]” Id.
On August 3, 2021, the trial court issued a single order denying
Appellant’s petitions requesting review. Appellant filed timely notices of
appeal for each docket number.4 Although the trial court did not issue a
Pa.R.A.P. 1925(b) order, on September 29, 2021, Appellant filed concise
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4Appellant has thus complied with Commonwealth v. Walker, 185 A.3d 969(Pa. 2018). See Walker, 185 A.3d at 977 (separate notices of appeal must
be filed when a single order resolves issues arising on more than one trial
court docket), overruled in part, Commonwealth v. Young, 265 A.3d 462,
477 (Pa. Dec. 22, 2021) (reaffirming that Pa.R.A.P. 341 requires separate
notices of appeal when single order resolves issues under more than one
docket, but holding Pa.R.A.P. 902 permits appellate court to consider
appellant’s request to remediate error when notice of appeal is timely filed).
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statements of errors complained of on appeal at six of the seven dockets.5
That same day, this Court sua sponte consolidated Appellant’s appeals.
Appellant raises the following issue on appeal:
Whether the trial court erred and abused its[ ] discretion in the
disapproving the seven private criminal complaints[? sic.]
Appellant’s Brief at 4.
We first note our standard of review of a trial court’s denial of a petition
to review the Commonwealth’s disapproval of a private criminal complaint:
“[T]he 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.” In re Miles, 170 A.3d 530, 534
(Pa. Super. 2017).
We further note Appellant’s pro se arguments are not entirely clear and
seem to confuse issues. Nevertheless, we glean the following claims.
Appellant avers the Commonwealth dismissed her private criminal complaints
without providing her “any legal evaluation of her reasoning[.]” Appellant’s
Brief at 22. Appellant insists the Commonwealth has “a statutory
responsibility to advise [ ] the reasoning behind [ ] disapproval.” Id. at 23.
Appellant maintains her private criminal complaints set forth prima facie cases
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5 Though Appellant states in each of her six 1925(b) statements the trial court
ordered her to file a 1925(b) statement on August 3, 2021, it does not appear
the trial court issued this order. See Appellant’s Concise Statements of Errors
Complained of On Appeal, 9/29/21, at 1. The trial court did, however, deny
her petitions for review of private criminal complaints on August 3, 2021.
Order, 8/3/21.
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for each alleged violation and as such, warranted the Commonwealth to
pursue further investigation. Id. at 24. Appellant argues “Apollo Borough
employees . . . have lied to [her,] committed perjury[, and have filed] false
attestations [sic].” Id. at 26.
Appellant raises further arguments in her “summary of the argument”
section of her brief. There, she accuses Police Chief Kier, Borough Manager
McDermott, Zoning Officer Troup, and Borough Secretary Shupe of “lying on
the witness stand, withholding evidence, and obstructing justice[.]” See
Appellant’s Brief at 18. Appellant asserts these witnesses testified to various
things but does not present any further argument. Appellant has also filed a
reply brief. We conclude no relief is due.
A private criminal complaint must successfully establish a prima facie
case against the alleged perpetrator. Miles, 170 A.3d at 534-35 (citations
omitted).
[E]ven if the facts recited in the complaint make out a prima facie
case, the district attorney cannot blindly bring charges,
particularly where an investigation may cause him to question
their validity. Forcing the prosecutor to bring charges in every
instance where a complaint sets out a prima facie case would
compel the district attorney to bring cases he suspects, or has
concluded via investigation, are meritless. The public prosecutor
is duty bound to bring only those cases that are appropriate for
prosecution. This duty continues throughout a criminal
proceeding and obligates the district attorney to withdraw charges
when he concludes, after investigation, that the prosecution lacks
a legal basis.
The district attorney is permitted to exercise sound discretion to
refrain from proceeding in a criminal case whenever he, in good
faith, thinks that the prosecution would not serve the best
interests of the state. This decision not to prosecute may be
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implemented by the district attorney’s refusal to approve the
private criminal complaint at the outset.
Miles, 170 A.3d at 534-35.
“It is well-settled that, if the Commonwealth disapproves a private
criminal complaint, the complainant can petition the Court of Common Pleas
for review . . . .” In re Private Crim. Complaints of Rafferty, 969 A.2d
578, 581 (Pa. Super. 2009). See also Pa.R.Crim.P. 506(A) (private criminal
complaint “shall be submitted to an attorney for the Commonwealth, who shall
approve or disapprove it without unreasonable delay”), (B)(2).
When the Commonwealth denies a private criminal complaint “on a
hybrid of legal and policy considerations,” the trial court reviews this decision
for an abuse of discretion. Miles, 170 A.3d at 534-35. As stated above, this
Court will then 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.” See id. at 534.
The Pennsylvania Crimes Code defines perjury under Subsections (a),
(b), and (e) as follows:
(a) Offense defined — A person is guilty of perjury, a
felony of the third degree, if in any official proceeding he makes a
false statement under oath or equivalent affirmation, or swears or
affirms the truth of a statement previously made, when the
statement is material and he does not believe it to be true.
(b) Materiality — Falsification is material, regardless of the
admissibility of the statement under rules of evidence, if it could
have affected the course or outcome of the proceeding. It is no
defense that the declarant mistakenly believed the falsification to
be immaterial. Whether a falsification is material in a given factual
situation is a question of law.
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* * *
(e) Inconsistent statements — Where the defendant
made inconsistent statements under oath or equivalent
affirmation, both having been made within the period of the
statute of limitations, the prosecution may proceed by setting
forth the inconsistent statements in a single count alleging in the
alternative that one or the other was false and not believed by the
defendant. In such case it shall not be necessary for the
prosecution to prove which statement was false but only that one
or the other was false and not believed by the defendant to be
true.
18 Pa.C.S. § 4902(a), (b), (e).
The crime of false swearing is defined as follows:
(a) False swearing in official matters — A person who
makes a false statement under oath or equivalent affirmation, or
swears or affirms the truth of such a statement previously made,
when he does not believe the statement to be true is guilty of a
misdemeanor of the second degree if:
(1) the falsification occurs in an official proceeding; or
(2) the falsification is intended to mislead a public servant
in performing his official function.
18 Pa.C.S. § 4903(a)(1)-(2).
The Pennsylvania Crimes Code defines intimidation of witnesses or
victims, in part, as:
(a) Offense defined. — A person commits an offense if,
with the intent to or with the knowledge that his conduct will
obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, he intimidates or attempts to
intimidate any witness or victim to:
* * *
(3) Withhold any testimony, information, document or
thing relating to the commission of a crime from any law
enforcement officer, prosecuting official or judge[, or]
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(4) Give any false or misleading information or
testimony or refrain from giving any testimony, information,
document or thing, relating to the commission of a crime,
to an attorney representing a criminal defendant.
18 Pa.C.S. § 4952(a)(3)-(4).
A person obstructs administration of law or other government functions
when they
intentionally obstruct[ ], impair[,] or pervert[ ] the administration
of law or other governmental function by force, violence, physical
interference or obstacle, breach of official duty, or any other
unlawful act . . .
18 Pa.C.S. § 5101.
Upon our review of the record, the parties’ briefs, and the relevant
statutory and case law, we conclude the trial court’s August 3, 2021, opinion
thoroughly addresses and properly disposes of Appellant’s claim on appeal.
Accordingly, we rest on its well-reasoned bases. See Trial Ct. Op. at 5-8
(regarding Appellant’s private criminal complaints that Police Chief Kier
committed perjury in testifying that Appellant owns a vacant building that was
previously “cited as vacant while owned by [Appellant’s] predecessor[,]”
Appellant’s accusations do “not suggest that [he] or any other individuals
knowingly lied”), 9-10 (pertaining to Appellant’s private criminal complaints
that Zoning Officer Troup committed perjury for testifying that she sent
Appellant an information packet that included Apollo’s vacancy ordinance,
Appellant merely challenged a nonmaterial disagreement about the receipt of
the information, and the question of whether Appellant was in violation of an
Apollo vacancy ordinance was properly decided by the trial court at her
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summary proceeding), 10-11 (in reference to Appellant’s private criminal
complaints that Borough Manager McDermott also committed perjury and
false swearing by stating Appellant violated the vacancy ordinance and the
previous owners were cited for owning a vacant building, Appellant did not
establish a prima facie case as she merely disagreed with Borough Manager
McDermott’s statement), 11-15 (regarding Appellant’s private criminal
complaints that Borough Secretary Shupe committed intimidation of a witness
or obstruction of administration of law, Appellant does not allege how Shupe’s
responses to her RTKL and FOIA requests violate Subsection 5101, but instead
alleges Shupe’s responses were inadequate, and further Appellant “alleges no
facts establishing that Shupe intended to obstruct” court proceedings or
“intentionally withheld any information” as Subsections 4952(a)(3) and (a)(4)
require), 7-9, 11-12, 14-15 (furthermore, the trial court determined the
Commonwealth’s policy considerations were independently valid and sufficient
to support dismissal of each private criminal complaint). As we agree with
the trial court’s well-reasoned analysis, we affirm the order denying
Appellant’s petitions for review.
We direct that a copy of the trial court’s August 3, 2021, opinion be filed
along with this memorandum, and attached to any future filings of this
memorandum.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2022
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