J-S18023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: PRIVATE CRIMINAL                    :   IN THE SUPERIOR COURT OF
    COMPLAINT OF ANTHONY SMITH                 :         PENNSYLVANIA
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    APPEAL OF: ANTHONY TUSWEET                 :
    SMITH                                      :      No. 1213 WDA 2017

                      Appeal from the Order July 25, 2017
                in the Court of Common Pleas of Beaver County,
             Criminal Division at No(s): CP-04-MD-0000525-2017

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 28, 2018

        Anthony Tusweet Smith (“Smith”), pro se, appeals from the Order

affirming the Beaver County District Attorney’s Office’s (“the District

Attorney”) disapproval of Smith’s Private Criminal Complaint (“PCC”).         We

affirm.

        Smith, an inmate at the State Correctional Institution at Greene (SCI-

Greene), filed a PCC against Harmony Township Police Sergeant James Essek

(“Sergeant Essek”) on June 1, 2017.1 In sum, Smith alleged that Sergeant

Essek filed a “false criminal complaint” against him, and violated 18 Pa.C.S.A.

§ 903 by conspiring with several individuals to commit various criminal



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1   The PCC was docketed on June 5, 2017.
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offenses against him.2 The District Attorney disapproved the PCC, indicating

that because all of the alleged acts had occurred in 2001 and 2002, the PCC

was filed beyond the statute of limitations.

       On July 10, 2017, Smith filed a pro se Petition for Review of the District

Attorney’s decision, pursuant to Pa.R.Crim.P. 506.3 The trial court affirmed

the District Attorney’s disapproval, stating that “the alleged offenses are

beyond the applicable statute of limitations.” Trial Court Order, 7/28/17, at 2

(citing 42 Pa.C.S.A. § 5552). This timely appeal followed.4

       On appeal, Smith raises the following issues for our review:

       I. Whether the trial court erred in affirming the [D]istrict
       [A]ttorney’s bald face finding of the expiration of the statute of
       limitations on allegations within [Smith’s] PCC?

       II. Whether the trial court erred in denying [Smith the]
       opportunity to develop the record for review of the [D]istrict
       [A]ttorney’s finding that the statute of limitations had expired on
       [Smith’s] PCC?


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2Smith alleged that Kyle Goosby, Linda Barr, Kim Tesla, John J. Tobin, Brian
K. Zimmerman, Jennifer Ann Petersen, Anthony Berosh, Thomas Phillis, T.
Kurt Fuchel, and Monte Bruce Jackson were participants in the conspiracy.
However, Sergeant Essek is the only named defendant.

3 Relevantly, in his Petition for Review, Smith requested that the trial court
“allot a time period for development of the record.” Petition for Review,
7/10/17.

4  On August 17, 2017, before filing his Notice of Appeal, Smith issued a
subpoena to the Pennsylvania State Police, seeking property records and
investigation reports related to his underlying criminal case. In September
2017, after the Notice of Appeal had been filed with this Court, Smith
filed a “Motion for Subpoena Enforcement,” which the trial court denied on
October 5, 2017.

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      III. Whether the trial court erred in denying [Smith’s] [M]otion for
      subpoena enforcement of [Pennsylvania State Police] property
      records related to [Smith’s] PCC in violation of [his] fundamental
      right to due course of law [pursuant to the] Pennsylvania
      Constitution[,] Article I § 11?

Brief for Appellant at 4 (issues renumbered).

      Our review is limited to the trial court’s review of the District Attorney’s

decision:

      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.

In re Miles, 170 A.3d 530, 534 (Pa. Super. 2017) (citation and brackets

omitted). The applicable statute of limitations for a crime raises a question of

law. See Commonwealth v. Vega-Reyes, 131 A.3d 61, 63 (Pa. Super.

2016). Therefore, de novo review was appropriate.

      In his first claim, Smith asserts that the trial court erred in affirming the

District Attorney’s disapproval of his PCC based on the expiration of the

applicable statute of limitations. Brief for Appellant at 12. Smith argues that

“the mere fact that the allegations date back to 2001 and 2002 does not

determine the conclusion of criminal conduct….” Id.

      Generally, “a prosecution for an offense must be commenced within two

years after it is committed.” 42 Pa.C.S.A. § 5552(a). However, a five-year

statute of limitations applies to a conspiracy to commit certain offenses

enumerated in paragraphs (1) and (2) of section 5552(b). Id. § 5552(b)(3).



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Additionally, criminal conspiracy is a continuing offense, and does not

terminate until the conspiracy ends, at which time the statute of limitations

starts to run. Commonwealth v. McSloy, 751 A.2d 666, 669 (Pa. Super.

2000); see also 42 Pa.C.S.A. § 5552(d) (providing that “[a]n 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.

Time starts to run on the day after the offense is committed.”); 18 Pa.C.S.A.

§ 903(g) (providing that, for purposes of 42 Pa.C.S.A. § 5552(d), “conspiracy

is a continuing course of conduct which terminates when the crime or crimes

which are its object are committed or the agreement that they be committed

is abandoned….”).

      In his PCC, Smith identifies a multitude of offenses committed by

individual named participants, many of which are identified in paragraph (1)

of section 5552(b).     Additionally, Smith alleges that eleven individuals

committed criminal offenses against him, but he failed to allege facts

establishing that the alleged, distinct offenses are part of a conspiratorial

agreement. Further, although Smith appears to claim that the conspiracy is

ongoing, he failed to allege facts establishing an ongoing conspiracy in either

his PCC or appellate brief. Because the last alleged offense occurred in 2002,

and Smith failed to allege that the purported agreement is ongoing, we agree

with the trial court’s conclusion that the District Attorney properly disapproved




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Smith’s PCC on the basis that he had filed the PCC well beyond the statute of

limitations.

      In his second claim, Smith contends that the trial court erred in denying

him the opportunity to develop the record for review of the District Attorney’s

disapproval of his PCC. Brief for Appellant at 9. Smith identifies eight items,

including documents and transcripts from his underlying criminal case and the

property records he sought with the subpoena, which he believes should be

included in the record to substantiate the allegations contained in his PCC.

Id. at 9-10.

      Initially, it is apparent from the allegations contained in the PCC that

Smith had access to, or was, at a minimum, aware of the contents of, the

requested documents. Smith has failed to explain why he could not have used

the information contained in the documents in support of either his PCC or his

Petition for Review. Smith has additionally failed to explain how the requested

documents are relevant to establishing that the PCC was filed within the

applicable statute of limitations. Accordingly, discerning no error by the trial

court, we cannot grant Smith relief on this claim.

      In his third claim, Smith argues that the trial court erred in denying his

“Motion for Subpoena Enforcement.” Brief for Appellant at 10. Smith claims

that the records he sought are necessary to substantiate his conspiracy

allegation. Id. at 10-11.

      In its Order denying Smith’s Motion, the trial court correctly pointed out

that Smith did not file the subpoena until after the trial court had affirmed

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the District Attorney’s disapproval of Smith’s PCC, and he did not file the

Motion to enforce the subpoena until after he had filed a Notice of Appeal.

Trial Court Order, 10/5/17, at 1 (unnumbered).           The trial court therefore

“[found] it improper to enforce a subpoena subsequent to [the c]ourt entering

a final, and appealed, Order[,]” id., and we agree. See Pa.R.A.P. 1701(a)

(providing that “after an appeal is taken …, the trial court … may no longer

proceed further in the matter.”); see also Commonwealth v. Pearson, 685

A.2d 551, 557 (Pa. Super. 1996) (stating that “[o]nce a notice of appeal is

filed, a trial court is divested of jurisdiction to act further on the case.”). Thus,

Smith is not entitled to relief on his third claim.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2018




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