J-S15022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

SCOTT KERNS

                            Appellant                        No. 1701 MDA 2014


                 Appeal from the Order of September 17, 2014
                In the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0000371-2001


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                                    FILED MARCH 13, 2015

       Scott Kerns appeals the September 17, 2014 order denying his motion

for review, in which Kerns challenged the district attorney’s decision to deny

his application for a private criminal complaint against the juvenile victim of

his crime. We affirm.

       In 2000, Kerns resided with Michelle Kerns, his now ex-wife, and her

child J.L.R., in Muhlenberg Township, Berks County. On approximately ten

separate occasions between March 2000 and October 2000, Kerns performed

sexual acts on J.L.R. On November 7, 2000, police filed a criminal complaint

against Kerns, charging him with involuntary deviate sexual intercourse

(“IDSI”), sexual assault, rape, aggravated assault, and indecent exposure.1
____________________________________________


1
     18 Pa.C.S. §§ 3123(a)(6),                 3124.1,    3121(a)(6),   3125(7),   and
3126(a)(7), respectively.
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On January 18, 2001, at a preliminary hearing, statutory sexual assault, and

indecent exposure were added to the complaint.2

       The trial court set forth the subsequent procedural history of this case

as follows:

       [Kerns] entered an open guilty plea on May 14, 2001, to one (1)
       count of involuntary deviate sexual intercourse. On January 18,
       2002, the Court sentenced [Kerns] to serve no less than seven
       and a half (7 ½) to no more than twenty (20) years.

       [Kerns] filed a pro se Post Conviction Relief Act[3] (hereinafter,
       “PCRA”) petition on January 23, 2002, and the [c]ourt appointed
       Gail Chiodo, Esquire, to represent him. Because a timely appeal
       of the guilty plea and sentence could still be filed at that date,
       appointed counsel pursued a direct appeal on [Kerns’] behalf.
       On December 23, 2003, [this Court] affirmed [Kerns’] judgment
       of sentence. Since that date, [Kerns] has engaged in a lengthy
       history of PCRA matters, filing ten PCRA petitions, which have all
       been dismissed by [the PCRA court].

       [On a date prior to June 13, 2014, Kerns filed an application for
       a private criminal complaint with the office of the District
       Attorney of Berks County. Therein, Kerns accused J.L.R. of
       perjury, 18 Pa.C.S. § 4902(a); false reports, Id. at § 4906(a);
       tampering with physical evidence, Id. at § 4910; obstruction of
       justice, Id. at § 5102(a); unsworn falsification to authorities, Id.
       at § 4904(a)(1); and conspiracy, Id. at § 903. On June 13,
       2014, the district attorney’s office notified Kerns by letter that
       his application was denied.]

       On September 9, 2014, [Kerns] filed a motion for review
       requesting that the [c]ourt review the District Attorney’s decision
       not to pursue a private criminal complaint.           The [c]ourt
       considered and denied that motion in an order dated September
       17, 2014. [Kerns] filed a timely notice of appeal on October 8,
____________________________________________


2
       18 Pa.C.S. §§ 3122.1 and 3127(a), respectively.
[3]
       42 Pa.C.S. §§ 9541-9546.



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      2014. Pursuant to Pennsylvania Rule of Appellate Procedure
      1925(b), the [c]ourt issued an order for a Concise Statement of
      the Errors Complained of on Appeal on October 14, 2014, which
      [Kerns] filed on November 5, 2014.

Trial Court Opinion, 11/10/2014, at 1 (capitalization modified; emphasis in

original).

      Kerns raises three issues for this Court’s consideration:

             1. Whether the Court of Common Pleas and the D.A.
                denied [Kerns’] Due Process?

             2. Did the D.A. and Common Pleas Court refuse to
                prosecute Kerns’ alleged victim because she was a
                witness for the state?

             3. Did the D.A. and Common Pleas Court violate the
                Rules of Court?

Brief for Kerns at 4.

      Kerns’ general contention is that the trial court erred by failing to

determine that the district attorney’s office abused its discretion when it

denied Kerns’ application for a private criminal complaint. We disagree.

      In the June 13, 2014 denial letter, the assistant district attorney

(“ADA”), rejected Kerns’ private criminal complaint, having determined that

the statute of limitations had expired on each of the crimes that Kerns

alleged      that       J.L.R.   had    committed,      barring       prosecution.

See 42 Pa.C.S. §§ 5552(a),       (b)   (prosecution   for   perjury     must   be

commenced within five years after it is committed; prosecution for the

remaining crimes must be commenced within two years after the crime is

committed).         The ADA asserted that his decision was based upon


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prosecutorial discretion and office policy. Private Prosecution Denial Letter,

6/13/2014, at 1.

      When addressing an appeal from the disapproval of a private criminal

complaint, our standard of review is well-established:

      Where the district attorney’s denial is based on a legal
      evaluation of the evidence, the trial court undertakes a de novo
      review of the matter. Commonwealth v. Cooper, 710 A.2d 76
      (Pa. Super. 1998). Where the district attorney’s disapproval is
      based on policy considerations, the trial court accords deference
      to the decision and will not interfere with it in the absence of bad
      faith, fraud or unconstitutionality. Id. at 79. In the event the
      district attorney offers a hybrid of legal and policy reasons for
      disapproval, deference to the district attorney’s decision, rather
      than de novo review, is the appropriate standard to be
      employed. Id. at 80. On appeal, this [C]ourt is limited to
      determining whether the trial court abused its discretion. Id.

In re Private Complaint of Owens Against Coker, 810 A.2d 172, 175-76

(Pa. Super. 2002). In this case, because the ADA based his disapproval of

the complaint upon a hybrid of legal and policy reasons, the trial court was

required to give deference to the ADA’s decision. Cooper, 710 A.2d at 79.

      Pennsylvania Rule of Criminal Procedure 506 governs private criminal

complaints.   When seeking review in the trial court, a private criminal

complainant has the heavy burden to prove that the district attorney abused

his discretion. In a Rule 506 petition for review:

      the private criminal complainant must demonstrate the district
      attorney’s decision amounted to bad faith, fraud or
      unconstitutionality. The complainant must do more than merely
      assert the district attorney’s decision is flawed in these regards.
      The complainant must show 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

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      the public interest. In the absence of such evidence, the trial
      court cannot presume to supervise the district attorney’s
      exercise of prosecutorial discretion, and should leave the district
      attorney’s decision undisturbed.

In re Wilson, 879 A.2d 199, 215 (Pa. Super. 2005).

      In its order denying Kerns’ motion for review, the trial court found no

evidence of the ADA’s bad faith, fraud, or unconstitutionally in Kerns’

motion. Therefore, the trial court accorded deference to the ADA’s decision

not to prosecute Kerns’ private criminal complaint.             Trial Court Order,

9/17/2014, at 1.

      To determine whether the trial court abused its discretion, we turn to

the merits of Kerns’ claims.         Unfortunately, Kerns’ brief is laden with

misstated case law, irrelevant arguments, and unsubstantiated accusations.

      In Kerns’ first issue, he alleges that his due process rights were

violated when the ADA denied his private criminal complaint. Brief for Kerns

at 8. In support of his claim, Kerns cites case law that he believes affords

him the unfettered right to have a criminal complaint accepted and filed by

the district attorney’s office. Id. However, this argument is unfounded, as

this Court has continuously recognized the discretion of the district attorney

in   evaluating    the   viability   of   private   criminal   complaints.    See

Commonwealth v. Brown, 708 A.2d 81, 83 (Pa. 1998); Commonwealth

v. Michaliga, 947 A.2d 786, 792 (Pa. Super. 2008); Commonwealth v.

McGinley, 673 A.2d 343, 347 (Pa. Super. 1996). Therefore, we reject the




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argument that the denial of Kerns’ private criminal complaint violated his

due process rights.

         In Kerns’ second issue, he claims that the ADA and the trial court

refused to prosecute J.L.R. because she was a witness for the state.

However, Kerns’ brief fails to address this allegation at any point in this

issue.     In fact, the bulk of his argument is a puzzling combination of

accusations.     Kerns recites certain sexual acts that led to his conviction,

claims that they cannot be proven, and attacks the integrity of the ADA’s

decision to deny his complaint. Brief for Kerns at 8-9. Kerns goes so far as

to note that, “[i]f anyone can make up statements and not be accountable

for it, when [I] get out of prison the [ADA] needs to be ready to arrest every

woman out there.        Because [I] will just start accusing them all of stuff.

Because it doesn’t matter if it can be proven or not.” Brief for Kerns at 9.

Kerns’ argument is meritless and warrants no further review by this Court,

because he has abandoned this claim in his brief.

         In his third issue, Kerns alleges that the ADA and the trial court

violated the “rules of court.”    Kerns bases this assertion upon a time-bar

exception to the statute of limitations set forth in 42 Pa.C.S. § 5552(c)(1).

Subsection (c)(1) states that:

         Any offense a material element of which is either fraud or a
         breach of fiduciary obligation within one year after discovery of
         the offense by an aggrieved party or by a person who has a legal
         duty to represent an aggrieved party and who is himself not a
         party to the offense, but in no case shall this paragraph extend
         the period of limitation otherwise applicable by more than three
         years.

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Id.   In his brief, Kerns conspicuously omits over half of the text of the

subsection, most notably the last clause, which states, “in no case shall this

paragraph extend the period of limitation otherwise applicable by more than

three years.”   Id.   Kerns argues that he became aware of J.L.R.’s alleged

crimes on December 4, 2013, and filed his complaint on June 13, 2014,

therefore complying with the one-year limitation provided by the statute.

Brief for Kerns at 9. Among the crimes alleged by Kerns, perjury has the

longest period of limitation, which lasts for five years. 42 Pa.C.S. § 5552(b).

Kerns was convicted of IDSI in 2001. Yet, he maintains that he only became

aware of the alleged crimes in 2013.       We find it difficult to imagine a

situation where an appellant, who pleaded guilty to IDSI, only became aware

of his accuser’s alleged false testimony over twelve years later. Kerns would

have known that J.L.R. testified falsely at his preliminary hearing, as he

caused every incident that led to his conviction.    Nonetheless, subsection

5552(c)(1) is inapplicable.   It can only extend the period of limitation an

additional three years, meaning that the statute of limitations would have

expired for each of the alleged crimes well before Kerns filed his complaint in

2014. Therefore, we conclude that the ADA and trial court did not violate

any rules of court in denying Kerns’ private criminal complaint.

      Kerns claimed that J.L.R. committed the crimes of perjury, false

reports, tampering with physical evidence, obstruction of justice, unsworn

falsification to authorities, and conspiracy. Despite Kerns’ accusations, the

crux of his argument here is that the trial court committed an abuse of

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discretion. Because the statute of limitations had run out on each alleged

crime of which Kerns accuses J.L.R., the ADA was barred by the statute of

limitations from prosecuting her for those alleged crimes, even if the ADA

determined that prosecution was warranted.      Therefore, the trial court did

not abuse its discretion by giving deference to the ADA’s decision not to file

Kerns’ private criminal complaint.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




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