J. S22024/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA      :              IN THE SUPERIOR COURT OF
                                  :                   PENNSYLVANIA
                                  :
               v.                 :
                                  :
KEVIN R. KLINKNER                 :
                                  :
                                  :
APPEAL OF: ONOFRIO LOUIS POSITANO :              No. 1169 MDA 2015

                  Appeal from the Order Entered June 25, 2015
               In the Court of Common Pleas of Schuylkill County
               Criminal Division No(s): CP-54-MD-0000733-2015
                                        CP-54-MD-0000735-2015

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 28, 2016

        Appellant, Onofrio Positano, appeals pro se from the June 25, 2015

Order denying and dismissing Appellant’s Petition for Review of the Schuylkill

County District Attorney’s disapproval of Appellant’s Private Criminal

Complaint.     Because Appellant failed to preserve for review or develop

properly the issues he raises before this Court, we conclude Appellant

waived his arguments. We, therefore, affirm.

        The facts and procedural history of this case are as follows. Appellant

filed a Private Criminal Complaint with the Schuylkill County District Attorney

alleging that an attorney for the Department of Corrections improperly



*
    Retired Senior Judge assigned to the Superior Court.
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contacted a physician Appellant intended to call as an expert witness in

Appellant’s civil professional liability claim. See Private Criminal Complaint

at 3-4 (unpaginated). See also Order of Court, filed 6/25/15, at 1.

      In a letter to Appellant, the Schuylkill County District Attorney

disapproved the Private Criminal Complaint citing policy considerations,

namely that Appellant’s complaints are “tantamount to prisoner litigation

and are civil in nature.” Order of Court at 1. The Schuylkill County District

Attorney also cited the “adequate civil remedies available” to Appellant as

grounds for the policy-based decision not to prosecute Appellant’s claim. Id.

at 1-2.

      On June 18, 2015, Appellant filed a Petition for Review with the Court

of Common Pleas of Schuykill County seeking review of the District

Attorney’s disapproval of Appellant’s criminal complaint.            Significantly,

Appellant’s petition averred only the following ground for relief:

      [T]his decision is erroneous as this is not a prisoner’s
      confinement matter however, it is a criminal act committed
      against the Commonwealth under 18 Pa.C.S. 4907, 18 Pa.C.S.
      4952 and 18 Pa.C.S. 3306 and therefore should be prosecuted.

Petition for Review, filed 6/18/15. 1




1
  Section 4907, Tampering with Witness, was repealed more than thirty
years ago. 18 Pa.C.S. 4907 (repealed 1980). Section 4952 defines the
criminal offense of Intimidation of Witnesses or Victims. 18 Pa.C.S. 4952.
Section 3306 defines the offense of Unauthorized Use or Opening of Fire
Hydrants. 18 Pa.C.S. 3306. It would appear, based on other filings,
Appellant intended to cite 18 Pa.C.S. 306, Liability for Conduct of Another.



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        The Honorable Charles M. Miller denied Appellant’s Petition for Review

in a written Order filed June 25, 2015.2 The trial court found as follows:

        Pursuant to Pa.R.C.P. 506, there is no evidence that the District
        Attorney’s decision to deny a Private Criminal Complaint to this
        Petitioner was patently discriminatory, arbitrary or pretextual,
        and therefore, not in the public interest. It is within the District
        Attorney’s prosecutorial discretion to not approve this Private
        Criminal Complaint.

Order of Court at 2 (citing Commonwealth v. Michaliga, 947 A.2d 786

(Pa. Super. 2008)).

        Appellant timely appealed, and Judge Miller ordered Appellant to file a

Pa.R.A.P. 1925(b) Statement. Appellant complied, raising the following four

issues, verbatim:

        (a) Affiant avers, that he is appealling [sic] this court’s decision
        to dismiss as to Item 1, as affiant’s averments clearly stated the
        violation of 3 criminal statutes of the Commonwealth of
        Pennsylvania . . . .

        (b) Affiant avers, that this matter is not tantamount to a
        prisoner litigation but truly a criminal action committed by the
        defendants against the peace and dignity of the Commonwealth
        of Pennsylvania and are not civil in nature.

        (c)   Affiant avers, that this matter has absolutely no civil
        remedies. And under the statutes of the Commonwealth of
        Pennsylvania and Rules 506, 503 and 504 he did properly file the
        Private Criminal Complaint and has a right to do so.

        (d) Affiant avers, that the policy cited by the District Attorney is
        in complete violation of the affiant’s civil rights under the U.S.
        Constitution 14th Amendment of due process of law and the
        Equal Protection of law clause as it illegally and
        unconstitutionally “classes” the affiant differently from all non-
        prisoner affiants. And is patently discriminatory.

2
    The trial court later submitted this Order as its Rule 1925(a) Opinion.



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Pa.R.A.P. 1925(b) Statement (capitalizations omitted) (lettered for ease of

review).

      In his Brief to this Court, Appellant raises the following “Questions,”

verbatim:

      1.     Should the District Attorney, by policy, refuse to
      prosecute    a Private   Criminal Complaint  without  any
      investigation?

      2.    Should the District Attorney, and the lower Courts be
      allowed to ignore violations of criminal statutes of the
      Constitution of the Commonwealth of Pennsylvania?

      3.    Should the District Attorney, be allowed, by policy to
      violate the civil rights of an individual under the Fourteenth
      Amendment’s Equal Protection of Law Clause by “classing,”
      prisoners differently than other individuals filing a Private
      Criminal Complaint?

      4.    Should the lower Court be allowed to use as the proper
      standard of review, bad faith, fraud or unconstitutionality when
      the decision of the District Attorney not to prosecute was policy
      only?

Appellant’s Brief at 2.

      Before we reach the merits of the issues raised on appeal, we

determine whether those issues were properly preserved and properly

developed for review.

      Appellant was required to preserve his claims for appellate review at

three distinct junctures: in his Petition for Review, in his Rule 1925(b)

Statement of Errors, and in his Brief to this Court. Our Pennsylvania Rules

of Appellate Procedure and our case law lay out the well-established

requirements for preserving a claim for appellate review.



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      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). This requirement bars an

appellant from raising “a new and different theory of relief” for the first time

on appeal.     Commonwealth v. York, 465 A.2d 1028, 1032 (Pa. Super.

1983).    This includes “issues of constitutional dimension.”       Coulter v.

Ramsden, 94 A.3d 1080, 1089, appeal denied, 110 A.3d 998 (Pa. 2014).

      Similarly, our Supreme Court has made it clear that “[a]ny issues not

raised   in    a   [Rule]    1925(b)   statement   will   be   deemed   waived.”

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citation and

quotation omitted).         See also Pa.R.A.P. 1925(b)(4)(ii) (“The [1925(b)]

Statement shall concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for

the judge”).

      Finally, this Court will address only those issues properly presented

and developed in an appellant’s brief as required by our rules of appellate

procedure, Pa.R.A.P. 2101-2119. “Appellate arguments which fail to adhere

to these rules may be considered waived, and arguments which are not

appropriately developed are waived.” Coulter, supra at 1088 (citation and

quotation omitted). Thus, issues raised in a Brief’s Statement of Questions

Involved but not developed in the Brief’s argument section will be deemed

waived. Harkins v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super.

1992).



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      With these precepts in mind, we conclude that each of Appellant’s

issues are waived for the following reasons.

      First, Appellant argues the District Attorney should not be permitted to

deny a Private Criminal Complaint on policy grounds without conducting an

investigation into the Complaint.     Appellant waived this claim by failing to

present it to the trial court in his Petition for Review, and for failing to

include the claim in his 1925(b) Statement.

      Appellant next avers in his Brief’s Statement of Questions Involved

that the District Attorney and trial court both erred by “ignor[ing] violations

of criminal statutes.” Appellant’s Brief at 2. Arguably, this is a reframing of

his Rule 1925(b) Statement issues (a) and (b).         However, we conclude

Appellant waived the issue by failing to develop this claim in the argument

portion of his Brief to this Court.

      While Appellant identifies four issues in the Statement of Questions

Involved, the Brief’s argument section improperly includes only two

argument sections. See Pa.R.A.P. 2119(a) (“The argument shall be divided

into as many parts as there are questions to be argued”). His first argument

section alleges it was error to dismiss his Private Criminal Complaint without

an investigation.   Appellant’s Brief at 5-6.    The second section alleges a

Fourteenth Amendment violation, and closes with a conclusory allegation

that the trial court should have used a different standard of review. Id. at

6. Neither section develops Appellant’s assertion that the District Attorney



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and the trial court improperly ignored violations of the criminal code. 3 “This

Court will not act as counsel and will not develop arguments on behalf of an

appellant.” Coulter, supra at 1088. Accordingly, this issue is waived.

      In his third issue, Appellant argues that the District Attorney’s policy

discriminates against prisoners in violation of the Equal Protection Clause of

the Fourteenth Amendment.       Appellant’s equal protection claim is wholly

new and distinct from the question Appellant asked the trial court to address

in his Petition for Review, namely whether the District Attorney mistakenly

categorized his complaint as a prisoner’s confinement matter.          Because

Appellant is improperly attempting to raise a new theory of relief for the first

time on appeal, we conclude this Fourteenth Amendment claim is waived.

See Pa.R.A.P. 302(a); Coulter, supra at 1090.

      Finally, Appellant argues that the trial court used the incorrect

standard of review when affirming the District Attorney’s decision not to

prosecute Appellant’s Private Criminal Complaint.      Appellant did not raise

this claim in his Rule 1925(b) statement, and failed to develop it in any

meaningful way in his brief to this Court as required by Pa.R.A.P. 2119(a).

Therefore, this fourth and final claim is waived.


3
  At best, Appellant’s brief makes a bald assertion that various sections of
the criminal code were violated. It does not in any way describe the alleged
misconduct or argue how that misconduct supports the elements of each
offense. Nor does it address the District Attorney’s discretion to decline to
prosecute complaints for permissible policy reasons even if a violation has
been shown.



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     For the foregoing reasons, we conclude Appellant has waived his

issues. Accordingly, we affirm.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2016




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