J-A05022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY SENNETT, ESQUIRE                   :
                                               :
                                               :   No. 1275 WDA 2018
    APPEAL OF: LOUIS J. ALIOTA                 :

                 Appeal from the Order Entered August 1, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-MD-0000385-2018


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED MAY 14, 2019

       Louis J. Aliota (“Appellant”) appeals from the August 1, 2018 order

denying reconsideration of his request for judicial approval of a private

criminal complaint. We affirm.

       Appellant is a Millcreek Township School Board Director.        He filed a

private criminal complaint,1 on his behalf “as well as taxpayers and voters of

Millcreek Township,” against Timothy Sennett, Esq. (“Sennett”), the Solicitor

of Millcreek Township School District and School Board (“School Board”), and




____________________________________________


1 While the record is unclear regarding the date Appellant filed the complaint,
Appellant asserts it was on February 20, 2018. Appellant’s Brief at 6.
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Sennett’s law firm, Knox Law Firm.2 Private Criminal Complaint; Appellant’s

Brief at 6 and 6 n.1. In the complaint, Appellant averred that Sennett and

Knox Law Firm should be prosecuted for election law violations and asserted

that they established a political action committee (“LPAC”) that contributed to

candidates other than Appellant, who served on the School Board. In addition,

Appellant alleged that Sennett’s invitation to Appellant and other political

officials to the annual Erie Club Summer Picnic violated state campaign laws

and demonstrated a conflict of interest.

       Appellee, the Commonwealth of Pennsylvania, Erie County District

Attorney (“the Commonwealth”), disapproved Appellant’s private criminal

complaint on the basis that it lacked prosecutorial merit.      Letter from Erie

County District Attorney to Pennsylvania Attorney General, 4/18/18, at 1. By

letter dated May 4, 2018, the Pennsylvania Office of Attorney General declined

to accept jurisdiction, stating that “the circumstances in each of these matters

do not rise to the level of a conflict under the law.” Pennsylvania Office of

Attorney General Letter, 5/4/18, at 1.

       Thereafter, Appellant filed a Petition for Approval of Private Criminal

Complaint in the Erie County Common Pleas Court on June 21, 2018. While

Appellant avers in his brief that the trial court held a hearing on June 21, 2018,


____________________________________________


2 On December 21, 2018, Sennett filed a letter stating that he will rely upon
the brief filed by the Commonwealth and the decision of the trial court.
Sennett Letter to the Prothonotary of the Superior Court of Pennsylvania,
dated 12/21/18 and received 12/24/18, at 1.

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instead, on that date in motions court, Appellant presented his petition to the

Honorable Daniel J. Brabender, who recused.             In the course of judicial

assignments by the Erie County Court Administrator, the matter was referred

to Judge William R. Cunningham. Judge Cunningham, the trial court herein,

entered an order on July 17, 2018, finding “no basis for any criminal charge

against [Sennett].” Order, 7/17/18.

      By motion dated July 31, 2018, and filed August 1, 2018, Appellant

sought reconsideration of the denial of his private criminal complaint, and the

trial court denied reconsideration that same day.         Appellant filed a timely

notice of appeal on August 31, 2018.         Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

         A. Whether the lower court abused its discretion in sustaining
            [the Commonwealth’s] denial of a criminal complaint?

         B. Whether the lower court abused its discretion and
            committed an error of law in concluding that the Appellant’s
            complaint lacked sufficient facts to state a violation of the
            statute?

Appellant’s Brief at 5 (full capitalization omitted).

      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


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policy considerations, 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–

792 (Pa. Super. 2008).

      Further, a district attorney’s decision not to prosecute a criminal

complaint for policy reasons carries a presumption of good faith and

soundness. Michaliga, 947 A.2d at 791–792 (quoting Commonwealth v.

Heckman, 928 A.2d 1077, 1079 (Pa. Super. 2007)). The complainant, herein

Appellant, “must create a record that demonstrates the contrary.” Michaliga,

at 792. Thus, our scope of review in policy-declination cases:

      is limited to whether the trial court misapprehended or
      misinterpreted the district attorney’s decision and/or, without a
      legitimate basis in the record, substituted its judgment for that of
      the district attorney. We will not disturb the trial court’s decision
      unless the record contains no reasonable grounds for the court’s
      decision, or the court relied on rules of law that were palpably
      wrong or inapplicable. Otherwise, the trial court’s decision must
      stand, even if the appellate court would be inclined to decide the
      case differently.

Michaliga, 947 A.2d at 792. Both the District Attorney and the trial court

have a responsibility to prevent the misuse of judicial and prosecutorial

resources in the pursuit of futile prosecutions. Commonwealth v. Muroski,

506 A.2d 131, 137 (Pa. Super. 1986).




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      In his first issue, despite multiple pages at the start of his argument in

his brief wherein he provides quotations regarding standards of review,

Appellant’s actual contention encompasses a few generalized claims for which

he cites no legal authority or record support.      Appellant’s Brief at 16–21.

Appellant contends that the Commonwealth was merely unwilling to

investigate Sennett, id. at 21, and he avers that the Erie County District

Attorney was biased. Id. at 22. Appellant suggests that “[t]here is a record

of bias and unwillingness to investigate [Sennett,] a long–time solicitor.” Id.

Appellant baldly posits that the “decision was arbitrary since [the trial court]

failed to appreciate the record before it.” Id. (emphasis added). Appellant

fails to identify evidence in the record supporting either bias or arbitrariness.

      In his second issue, once again, Appellant advances broad assertions of

bias without explanation or support. The basis for his argument of conflict of

interest is that Sennett violated campaign finance laws by inviting political

“figures” to a barbecue that others had to pay to attend, Appellant’s Brief at

27, and that Sennett’s LPAC made contributions to campaigns. Id. Appellant

avers that when these facts were taken to the district attorney, he failed to

“take measures to investigate the salient issues” and determine whether

“recipients of the donations disclosed such monies from a political figure.” Id.

at 27–28. Appellant posits that Sennett also violated the Public Official and

Employee Ethics Act, 65 Pa.C.S. §§ 1101–1113, which he asserts, without

explanation, must be read in pari materia with the Election Code. Appellant’s


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Brief at 29. Appellant complains that he was never given the opportunity to

present evidence at a hearing. Id. at 30.

       The Commonwealth responds that although Appellant opines that it

disapproved the private criminal complaint because it determined that

insufficient evidence existed in the case, in addition to the absence of

prosecutorial merit, the Assistant District Attorney noted only that the

complaint “lacked prosecutorial merit.” Commonwealth’s Brief at 2 n.2. The

Commonwealth         maintains     that    under   Pa.R.Crim.P.   506,3   a   private

complainant has no right to an evidentiary hearing in connection with the trial

court’s review of the District Attorney’s decision to disapprove a private

criminal complaint. Commonwealth’s Brief at 3 (citing Commonwealth v.

Eisemann, 419 A.2d 591 (Pa. Super. 1980)). Rather, the Commonwealth

____________________________________________


3   Pa.R.Crim.P. 506, Approval of Private Complaints, provides as follows:

       (A) When the affiant is not a law enforcement officer, the
       complaint shall be submitted to an attorney for the
       Commonwealth, who shall approve or disapprove it without
       unreasonable delay.

       (B) If the attorney for the Commonwealth:

              (1) approves the complaint, the attorney shall indicate
              this decision on the complaint form and transmit it to
              the issuing authority;

              (2) disapproves the complaint, the attorney shall state
              the reasons on the complaint form and return it to the
              affiant. Thereafter, the affiant may petition the court
              of common pleas for review of the decision.

Pa.R.Crim.P. 506.


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avers, Rule 506 merely allows the private criminal complainant the

opportunity to have his complaint reviewed in the court of common pleas,

following the District Attorney’s adverse decision. Commonwealth’s Brief at

3.

      Appellant makes generalized claims of bias and unwillingness to

investigate by the District Attorney but provides no record support. Following

our review of the complete record, the law, and the parties’ arguments, we

conclude that the trial court opinion supports the determination that

Appellant’s private criminal complaint does not comply with “the essential

requirements” set forth in Pa.R.Crim.P. 504.     We rely on the trial court’s

Pa.R.A.P. 1925(a) opinion filed on October 2, 2018, in affirming the August 1,

2018 order. We direct the parties to attach the opinion in the event of further

proceedings in this matter.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2019




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                                                                                  Circulated 05/10/2019 02:55 PM
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COMMONWEALffl OF PENJt�fX!R�ECO:Hm THE COURT OF COMMON PLEAS
                                                     : OF ERIE COUNTY, PENNSYLVANIA
                       v.         20 f B OCT -2 AM 11: aiIMJNAL DMSION
                                       ER!E COUNTY
TIMOTHY SENNETT, ESQUIRI.ERK OF COURTJO. MD 385 OF 2018
  .                     ERIE. PA 16501

                                   RULE 1925(A) OPINION
       The presenting matter is the appeal from the denial of Appellant's request for judicial

approval of a. private criminal complaint.

       In his Concise Statement of Matters, Appellant raises a host of superfluous matters. This

Court is not privy to what occurred in Motion Court before Judges Brabender and Domitrovich.

However, what may have occurred there is not relevant to the resolution of this case.

        On or about June 21, 2018, Appellant submitted a document titled "PETITION FOR

APPROVAL OF PRIVATE CRIMINAL COMPLAINT' (hereafter "Petition"). Upon the self-

recusal by Judge Brabender, the Petition was assigned to this Court through the normal course of

judicial assignments by the Erie County Court Administrator's Office.

        As filed and presented to this Court, Appellant's Petition is comprised of 27 paragraphs

spanning 4 pages. The gravamen of the Petition consisted of Appellant's reference to and his

interpretation of the ethics requirements for public officials in Pennsylvania. He attached thereto -

10 documents, the first being an incomplete Private Criminal Complaint.

       · In his attached Private Criminal Complaint, Appellant lists the Defendant as "Timothy

Sennett, et.al. business 120 West 10th Street, Erie Pa. 16501." Appellant identified the

complainant as "Louis J. Aliota and the Taxpayers/Voters Millcreek Township". He then

referenced "Supplement Attachments #1-9".




                                                                                                              I   /'i
                                                                                                             ! (._/
       The remainder of the Private Criminal Complaint was left blank. Nonetheless, this Court

read each of Appellant's 9 "Supplement Attachments" to his Private Criminal Complaint.

       Attachment l was a letter dated April 5, 2016 from Trisha Malehorn, Chief, Division of

Campaign Finance and Lobby Disclosure, Pennsylvania Department of State, Bureau of

Commissions, Elections and Legislation, to Appellant informing him there is no jurisdiction to

address his complaint against "LPAC". The substance of Appellant's complaint is not discussed

nor is the identity of Attorney Timothy Sennett referenced. The letter suggests to Appellant

several agencies with jurisdiction to investigate his complaint.

       Attachment 2 was simply Appellant's April 8, 2016 response to Malehorn's letter in

which he expresses his disagreement with her position.

       Attachment 3 is the January 29, 2016 cover letter by Appellant submitting his complaint

to the Bureau of Commissions, Elections and Legislation. Appellant's complaint was thereafter

dismissed as reflected in Attachment l referenced above.

       Attachment 4 is a letter elated June 27, 2017 from Attorney Timothy Sennett, inviting

Appellant to be his guest at the annual Erie Club picnic on July 27, 2017. Attachment 4 also

contains Appellant's email response wherein he declines to accept the invitation to the picnic.

       Attachment 5 appears to be comprised of three letters to Appellant from Robert P.

Caruso, Executive Director for the Pennsylvania State Ethics Commission. Chronologically, the

first letter, dated January 14, 2016, informed! Appellant there is "no jurisdiction in these matters

as the Ethics Act does not regulate the conduct of Political Action Committees in the support of

candidates for office." This conclusion was in response to Appellant's request for an

investigation alleging "that Timothy Sennett, Esq. and Timothy Wachter, Esq. violated

provisions of the Public Official and Employee Ethics Act" The factual substance, if any, of


                                                 2
Appellant's allegations against these two attorneys is not mentioned in this letter. In the second

letter dated May 11, 2016, Mr. Caruso informed Appellant that his "complaint fails to state a

cause of action under any of the relevant provisions of the Ethics Act. As such, no investigation

will be commenced." The third letter, dated May 18, 2016, Mr. Caruso informs Appellant that

his complaints were investigated and there is no cause of action.

       Attachment 6 is comprised of a series of emails between Appellant and the

Superintendent of Millcreek School District. These emails start on January 15, 2016 and end on

January 19, 2016. These emails reflect Appellant's belief there were ethics violations during the

2015 election for the Millcreek School Board.

       Attachment 7 is a cover letter elated April 27, 2016 from Appellant to the State Ethics

Commission in which he attaches excerpts of disconnected publications relating to ethics for

public officials. There are no factual averments set forth in support of Appellant' s complaint to

the Ethics Commission.

       Attachment 8 appears to be an email from him dated April 27, 2016 to Mr. Caruso in

which Appellant electronically submitted the same ethics complaint against Attorney Timothy

Sennett as also sent by regular mail in Attachment 7.

       Attachment 9 is a copy of an email dated June 2, 2017 to Robert P. Caruso, Executive

Director of the State Ethics Commission, outlining Appellant's reasons why there is a cause of

action for an ethics violation against Attorney Timothy Sennett. There is no factual basis asserted

by Appellant for his contention.

       Appellant'sPetition, Private Criminal Complaint Md its 9 Attachments were reviewed in

their entirety prior to the initial ruling denying the Petition on July 17, 2018; prior to denying




                                                3
Appellant's request for reconsideration by Order dsted August 1, 2018; and upon review of

Appellant's Concise Statement of Matters for this appeal

       Appellant's submissions do not meet any of the requirements for the issuance of an arrest

warrant. Pa.R.Crim.JP>. 5B(B)(.2) provides: "No arrest warrant shall issue but upon probable

cause supported by one or more affidavits sworn to before the issuing authority... ".

       Appellant has failed to file any sworn affidavit(s) esteblishing probable cause for an

arrest warrant. Glaringly absent is a recitation of any facts establishing probable cause that �

crime was committed by Attorney Seanett, Appellant' s interpretations of the ethics laws are not

a substitute for real facts or evidence supporting a private criminal complaint. Notably, the

Pennsylvania State Ethics Commission investigated Appellars's complaint and did not find a

cause of action for an ethics violation.

       After the Pennsylvania State Ethics Commission found Appeftfamf s complaints deficient

in May, 2016, the only remaining metter is Attachment 4, in which Appellant declined Attorney

Sennett's offer to be his guest at the annual Erie Club picnic in June, 2017. There is no evidence

of any crime in this exchange.

       Appellant's submissions also do not comply with the essential requirements for the

contents of a criminal complaint set forth in Pa.R'Crim.P. 504. There was no information

provided regarding the purported Defendant' s race, sex, date of birth or other mimes. More

importantly, Appellant left blank any information about what crime occurred. where �.11Mi'l when it

occurred or any factuel basis to support    Z!.   criminal charge. On its face AfPpeibmif s Private

Criminal Complaint was wholly deficient.
         Appellant's demand for an evidentiary hearing is unavailing. He provides no support for

his request. To the contrary, the rules preclude an evidentiary hearing prior to the issuance of a·

criminal complaint. Specifically, Pa.R.Crim.JP>. 513(B)(2) provides: "The issuing authority, in

determining whether probable cause has been established, may not consider · any evidence outside

the affidavits".

         Appellant does mot have a due process right to a hearing to establish probable cause for

an arrest warrant. Instead, the accused has a due process right to a hearing to challenge the

probable cause for the issuance of an arrest warrant. At such a hearing, the only admissible

evidence is the written affidavit attached to the arrest warrant Pa.RCrim.P. 513(B)(4).

         In addition, the procedure for seeking a private criminal complaint permits the affiant to

petition the court of common pleas for review of the prosecutor's disapproval but it does not

mention or mandate that the affiant is entitled to an evidentiary hearing to establish probable

cause. Pa.R.Crim.P. 506(2).

         Nonetheless, every consideration was given to Appellant' s Petition on three separate

occasions. In each instance, there was no discernible crime identified by Appellant nor a factual

basis alleged in support of any criminal charge against Attorney Timothy Sennett. Appellant

needs to understand that to accuse someone of a crime and request that a private criminal

complaint be issued is a serious matter that is not taken lightly, At a minimum, Appellant had a

responsibility to proffer a factual basis for an identified crime. He has failed to do so for the

District Attorney of Erie County, the Pennsylvania Ofiice of Attorney General and before this

Court.

         Based on his filings in this case, Appellant also needs to understand it is not the role of

the court to serve as his personal investigaror.


                                                   5
      The Clerk of Courts is directed to transmit the record to the appellate court.



                                            JBY TPIB COURT:




cc:   District Attorney's Office
      Louis Aliote, 538 Margo Court, Erie JP>A 16505
      Timothy Sennett, Esquire, 120 West Tenili Street, Erie i?A 16501
