J-A23045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: APPEAL OF DISAPPROVAL OF               IN THE SUPERIOR COURT
    PRIVATE CRIMINAL COMPLAINT                       OF PENNSYLVANIA




    APPEAL OF: JOHN YOCOLANO

                                                      No. 230 WDA 2018


                Appeal from the Order Entered January 16, 2018
              In the Court of Common Pleas of Washington County
               Criminal Division at No.: CP-63-MD-0000040-2018


BEFORE: BOWES, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 31, 2018

        Appellant John Yocolano appeals from the January 16, 2018 order of the

Court of Common Pleas of Washington County (“trial court”), which denied his

petition for review of the disapproval of his private criminal complaint by the

Washington County District Attorney’s Office (“DA”). Upon review, we affirm.

        The facts and procedural history of this case are undisputed.1 Based on

accusations made by Appellant’s ex-finance (“A.A.”), Appellant was charged

with three counts of indecent assault, two counts of sexual assault, and one

count each of rape, kidnapping, involuntary deviate sexual intercourse,

aggravated assault, simple assault, unlawful restraint, terroristic threats, and


____________________________________________


1 Unless otherwise specified, these facts come from August 14, 2017 opinion
issued by a prior panel of this Court. See Commonwealth v. Yocolano, 169
A.3d 47 (Pa. Super. 2017).
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false imprisonment. A jury eventually found Appellant guilty of all charged

crimes. Appellant appealed to this Court. We vacated Appellant’s judgment

of sentence and remanded the matter to the trial court for a new trial.

      On October 11, 2016, Appellant filed a private criminal complaint

against A.A., accusing her of committing perjury under Section 4902 of the

Crimes Code, 18 Pa.C.S.A. § 4902, at his December 19, 2012 preliminary

hearing. Specifically, Appellant alleged that, at the preliminary hearing, A.A.

offered false testimony when she claimed that “the Monongahela Police took

photographs of her injuries following her alleged rape and that Assistant

District Attorney [(“ADA”)] Kristin Clingerman took photographs of [A.A.’s]

bruises prior to the preliminary hearing of December 19, 2012.”          Private

Criminal Complaint, 10/11/16, at ¶ 2. In the questionnaire accompanying the

private criminal complaint, Appellant stated, “A.A. testified the Monongahela

Police and ADA Kristin Clingerman took photographs of [A.A.’s] injuries

[sustained] during her alleged rape. This testimony was completely false.”

Private Criminal Complaint Questionnaire, 10/11/16, at ¶ 4.

      On January 31, 2017, the DA disapproved the private criminal complaint

stating “have police file charges.”     Pursuant to Pa.R.Crim.P. 506(B)(2),

Appellant filed a petition for review of the DA’s disapproval of the private

criminal complaint in the trial court. In the petition, Appellant alleged that he

was charged with, inter alia, rape, kidnapping and unlawful restraint following

A.A’s testimony at the December 19, 2012 preliminary hearing indicating that

the Monongahela Police Department and the DA’s office photographed her

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injuries.2 Petition for Review, 1/10/18, at ¶ 5. Appellant alleged that A.A.’s

testimony at the preliminary hearing “was an attempt to bolster her

allegations against [him].” Id. at ¶ 6. Referencing a letter issued by the

Monongahela City Police Department3 and the testimony of ADA Clingerman,4

Appellant averred that, contrary to A.A.’s preliminary hearing testimony,

neither the police department nor the DA’s office took any photographs of her

injuries.   Id. at ¶ 8.     As a result, Appellant requested that the trial court

“reverse the [DA’s] disapproval of the private criminal complaint filed in this


____________________________________________


2 At the December 19, 2012 preliminary hearing, A.A testified on cross-
examination:
      Q. Did anybody, to your knowledge, take pictures of these
      bruises?
      A. Yes, sir.
      Q. Who took pictures?
      A. The police officer and the nurses at the hospital.
      Q. Did anybody else take pictures of these bruises other than the
      police and the nurses at the hospital?
      A. The DA took pictures, when I came here, of the bruising on my
      legs.
       Q. Okay. When did you come to the DA to get those pictures
       taken?
       A. Last Wednesday.
N.T. Preliminary Hearing, 12/19/12, at 19-20.
3The letter issued by Brian J. Tempest, Chief of Police, City of Monongahela
Police Department, stated that “no photographs were taken of [A.A.] at the
Monongahela Police Station [on December 6, 2012].” Letter, 6/6/16.
4  On July 7, 2016, in connection with a termination of parental rights
proceeding, ADA Clingerman testified that “the police never took any
photographs” of A.A. N.T. Termination Hearing, 7/7/16, at 4-5. ADA
Clingerman further testified that “[p]hotographs were taken by the hospital
when [A.A.] was taken there[.]” Id. at 5.

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matter, and [] order/direct that [A.A.] be charged with two counts of perjury.”

Id. at 3.

      Given the confusion around the phrase “have police file charges,” the

trial court conducted an evidentiary hearing on January 5, 2018 to ascertain

the precise reason why Appellant’s private criminal complaint was denied. The

DA called former ADA Adam Yarussi who had reviewed and disapproved

Appellant’s private criminal complaint. Reproduced Record (R.R.) at 138. ADA

Yarussi testified that when he disapproved Appellant’s private criminal

complaint, he wrote “have police file charges.” Id. at 139. He testified that

upon his review of the record, he concluded that there was insufficient

evidence to support a perjury charge and he directed Appellant to have the

police either review or file charges. Id. On cross-examination, ADA Yarussi

acknowledged the problem with the phrase “have police file charges” and

reiterated his reason for disapproving the private criminal complaint, i.e.,

insufficiency of the evidence. Id. at 142.

      On January 16, 2018, the trial court denied Appellant’s petition for

review, concluding that the pictures of the injuries were immaterial to the

underlying crimes. Appellant timely appealed to this Court.

      On appeal, Appellant raises five issues for our review.

      [I.] Did the trial judge commit an error of law by denying
      Appellant’s petition for review which sought reversal of the denial
      of his private criminal complaint for perjury?

      [II.] Did the trial court judge commit an error of law by ruling that
      the alleged victim’s false testimony was not material to the
      unlawful restraint charge?

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      [III.] Did the trial judge commit an error of law by
      mischaracterizing the issue of whether the testimony in question
      was material to the “offense of perjury”, rather than material to
      the subject offense, unlawful restraint?

      [IV.] Did the trial judge commit an error of law by concluding that
      the private criminal complaint was disapproved in the first
      instance when the fair and reasonable interpretation was that it
      was actually approved, not disapproved?

      [V.] Did the lower court err by holding that the false testimony
      was not perjury because of the “low bar” required at a preliminary
      hearing?

Appellant’s Brief at 6 (unnecessary capitalizations and emphasis omitted). For

ease of disposition, we combine Appellant’s first two issues.

      Our standard of review is limited to the trial court’s review of the DA’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) (citations and brackets

omitted). Rule 506 of the Pennsylvania Rules of Criminal Procedure applies

to the review of a private criminal complaints and provides:

      (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;

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      (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. Again, if the district attorney disapproves a private criminal

complaint, the complainant may petition to the court of common pleas for a

Rule 506 review. Miles, 170 A.3d at 536 (citation omitted).

      The trial court must first correctly identify the nature of the district
      attorney’s reason(s) for denying a private criminal complaint.

       ....

      Under Rule 506 and settled case law, the private criminal
      complainant has no right to an evidentiary hearing in connection
      with the trial court’s review of the district attorney’s decision to
      disapprove the private criminal complaint. 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.

In re Ullman, 995 A.2d 1207, 1214 (Pa. Super. 2010) (citation omitted)

(emphasis added), appeal denied, 20 A.3d 489 (Pa. 2011).

      As we explained in Miles:

      A private criminal complaint must at the outset set forth a prima
      facie case of criminal conduct. Nevertheless, even a well-crafted
      private criminal complaint cannot be the end of the inquiry for the
      prosecutor. The district attorney must investigate the allegations
      of the complaint to permit a proper decision on whether to
      approve or disapprove the complaint. Such investigation is not
      necessary where the allegations of criminal conduct in the
      complaint are unsupported by factual averments. Both the district
      attorney and the trial court have a responsibility to prevent the
      misuse of judicial and prosecutorial resources in the pursuit of
      pointless prosecutions.

      Moreover, even if the facts recited in the complaint make out a
      prima facie case, the district attorney cannot blindly bring


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      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.

       ....

      When the district attorney disapproves a private criminal
      complaint, based on the sufficiency of the facts necessary to
      establish the elements of the crime charged, that decision is a
      legal conclusion subject to de novo review.

Id. at 535 (internal quotations marks, citations, and brackets omitted).

Instantly, the parties do not dispute that the DA’s disapproval of Appellant’s

private criminal complaint was premised upon legal conclusions.        Thus, we

conduct a de novo review.

      Section 4902, relating to perjury, provides in part:

      (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.

18 Pa.C.S.A. § 4902(a) and (b). The comment to Section 4902 explains that

“the essential elements of [perjury] are (1) oath or affirmation; (2) materiality


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of the lie; and (3) requirement that the lie be told in an official proceeding

involving a hearing.” Id. cmt.; Commonwealth v. King, 939 A.2d 877, 880

(Pa. 2007) (stating that “to constitute the offense of perjury, there must be a

false statement, i.e., a representation, which could have affected the course

or outcome of the proceeding.”). The comment further explains:

      Under existing law testimony is material where it tends to directly
      prove or disprove one side or the other in the main issue or where,
      under established rules of evidence, it indirectly tends to do so by
      crediting or discrediting other evidence or the testimony of
      another witness.       The definition of “materiality” does not
      substantially differ from that of existing law.

Id. cmt.    A material statement under Section 4902 is one which has the

potential to influence a fact-finder. Whether it actually does influence the fact-

finder is of no moment. Commonwealth v. Label, 440 A.2d 602, 606 (Pa.

Super. 1982).

      With the foregoing in mind, we now turn to Appellant’s argument that

the trial court erred in denying his petition for review of the DA’s disapproval

of his private criminal complaint based on its conclusion that A.A.’s false

statement regarding the photographs was immaterial.

      Instantly, in denying Appellant’s petition for review, the trial court

reasoned:

             After reviewing all of the documents submitted by
      [Appellant] that are attached to his [p]etition, [the trial court]
      finds the following facts relevant. [A.A.] testified under oath at
      [Appellant’s] preliminary hearing that hospital staff, as well as the
      Monongahela police, took pictures of her bruised body after
      [Appellant] allegedly raped her. Kristin Clingerman, the Assistant
      District Attorney who prosecuted [Appellant], however, testified


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     at an [o]rphans’ [c]ourt proceeding on July 7, 2016 that the police
     never took pictures of [A.A.’s] bruises. T.T.P.R. of July 7, 2016,
     p.5, LL. 5-6; see also Monongahela Police Department Letter
     dated June 6, 2016. In addition, [A.A.] testified that the [DA]
     took pictures of the bruises on her legs. [A.A.] stated: “The DA
     took pictures, when I came here, of the bruising on my legs[,] and
     they were taken “[l]ast Wednesday.” P.H.T. of December 19,
     2012, p.20, LL. 1-5. Although there was nothing in the materials
     attached to the [p]etition indicating that this was a false
     statement, [ADA] Yarussi acknowledged that the only pictures
     taken of [A.A.’s] bruising were by hospital staff.

      ....

            Th[e trial court] concludes that [A.A.] did not commit
     perjury as a matter of law because her false statements at
     [Appellant’s] preliminary hearing were not “material” to
     the outcome of the preliminary hearing. [A.A.’s] wrongful
     testimony of who took photographs of her bruises is not material
     to the determination of whether to charge [Appellant] with rape
     or any other sexual crime. Th[e trial court] agrees with [ADA]
     Yarussi’s assessment that who took pictures or how many pictures
     were taken is not material, rather that photographs of the alleged
     injuries do exist. But, th[e trial court’s] reasoning goes beyond
     [ADA] Yarussi’s assessment.

           At a preliminary hearing, the MDJ must determine from the
     evidence presented whether the Commonwealth has established
     a prima facie case that: (1) an offense has been committed, and
     (2) the defendant has committed such offense. Pa.R.Crim.P.
     542(D). Prima facie proof at a preliminary hearing is a “low
     burden of proof.” Commonwealth v. Ricker, 120 A.3d 349, 360
     n.5 (Pa. Super. 2015). A prima facie case is established when the
     evidence introduced, if accepted as true, would warrant a trial
     judge to allow the case to go to a jury. See Commonwealth v.
     Cordoba, 902 A.2d 1280, 1285 (Pa. Super. 2006). Proving
     elements of a crime beyond a reasonable doubt is not required.
     Commonwealth v. Landis, 48 A.3d 432, 444 (Pa. Super. 2012).
     Instead, the prima facie standard only requires that evidence
     exists for each element of the crime charged. Id. The evidence
     must establish sufficient probable cause to warrant the belief that
     the defendant committed the offense. Commonwealth v. Marti,
     779 A.2d 1177, 1180 (Pa. Super. 2001). Importantly, “the weight



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      and credibility of the evidence are not factors” to be considered at
      a preliminary hearing. Id.

             Further, th[e trial court] is to draw reasonable inferences
      from the admitted evidence that would support a guilty verdict,
      and the evidence must be read in the light most favorable to the
      Commonwealth’s case. Id. [The MDJ here could not assign any
      weight to the photographs because none were introduced into
      evidence at the preliminary hearing.] Moreover, the law does not
      require the victim of an alleged rape, or any sexual assault for
      that matter, to produce pictures taken of their body            to
      substantiate a prima facie case at a preliminary hearing. See 18
      Pa.C.S.A. §§ 3121(a), 3124.1, 3123(a)(1), and 3126(a)(1). In
      fact, the Crimes Code provides that a victim’s testimony need not
      be corroborated regarding the charges of rape, involuntary
      deviate sexual intercourse, or any other crime within Chapter 31.
      See 18 Pa.C.S.A. § 3106; Commonwealth v. Poindexter, 646
      A.2d 1211, 1214 (Pa. Super. 1994). “[I]t is well established that
      the uncorroborated testimony of the complaining witness is
      sufficient to convict a defendant of sexual offenses.”
      Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super.
      1999).

             After a review of the preliminary hearing transcript, th[e
      trial court] concludes that [A.A’s] testimony of [Appellant’s]
      alleged behavior reached the low bar of establishing a prima facie
      case of rape against him. [A.A.’s] false or wrongful testimony that
      the [DA] and Monongahela police took pictures of her bruises was
      not material to perjury. Whether the [DA] or the police took
      pictures had no effect upon the course or outcome of the
      preliminary hearing as a matter of law.

Trial Court Opinion, 1/16/18, at 3-5 (some internal citations and footnotes

omitted).

      Based on our review of the record, we reach the same conclusion as the

trial court. Here, Appellant’s private criminal complaint alleged only that A.A.

committed perjury by falsely claiming at Appellant’s preliminary hearing that

the Monongahela Police Department and the DA’s office, respectively,



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photographed her injuries related to her alleged rape by Appellant.

Nonetheless, it is beyond dispute that only the hospital staff took photographs

of A.A.’s injuries and that, as the trial court noted, no photographs were

introduced at the preliminary hearing.       The fact that A.A. uttered a false

statement under oath does not necessarily constitute perjury. Appellant does

not explain how A.A.’s false statement that the DA’s office and/or the police

department, in addition to the hospital staff, photographed her injuries could

have influenced the outcome of the preliminary hearing. Instead, he baldly

asserts that A.A.’s testimony at the preliminary hearing “was an obvious

attempt to bolster her allegation against Appellant: the more photographs

that were taken of her injuries, the more serious her injuries were.”

Appellant’s Brief at 16. The Commonwealth aptly counters:

      [A.A.’s] injuries were the same regardless of the number of
      photographs taken and the existence of the one set of
      photographs which were taken [by the hospital] is adequate to
      confirm or dispel any misconception as to whether [A.A.]
      sustained injuries which she testified she had sustained, and
      whether those injuries supported the charges against Appellant.

Commonwealth’s Brief at 13.      Moreover, Appellant offers no authority to

support his claim that the sheer quantity of photographs determines the

seriousness of injuries sufficient to influence the outcome of a preliminary

hearing. Accordingly, we conclude A.A.’s false statement was not material to

the outcome of the preliminary hearing.

      We next address Appellant’s argument that the trial court erred in

mischaracterizing the issue of whether A.A.’s testimony was material to the


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“offense of perjury,” rather than material to the subject offense, unlawful

restraint. This argument is without merit. It is patently clear that the trial

court inartfully wrote “[A.A.’s] false or wrongful testimony . . . was not

material to perjury” in its January 16, 2018 opinion, when it should have

written “material [sufficient to warrant a charge of perjury].”      Trial Court

Opinion, 1/16/18 at 5.    The trial court devoted significant text, as recited

above, to explain that A.A.’s testimony simply was not material because it did

not and could not have affected the outcome of Appellant’s preliminary

hearing. See id. at 4 (A.A. “did not commit perjury as a matter of law because

her false statements at [Appellant’s] preliminary hearing were not material to

the outcome of the preliminary hearing.”).

      Appellant next argues that the DA’s office had approved his private

criminal complaint when it wrote the words “have police file charges” following

the DA’s checking of the box marked “disapproval.”         Appellant raises this

argument for the first time on appeal.        See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.”).   Moreover, Appellant is disingenuous in taking this position on

appeal, because his petition for review was premised entirely on his argument

that the DA erred in disapproving his private criminal complaint.

Accordingly, this issue also lacks merit.

      We finally turn to Appellant’s last argument, that the trial court erred in

concluding the preliminary hearing demands a lower evidentiary bar.

Specifically, Appellant argues that the trial court ruled that “perjury is

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acceptable in preliminary hearings because the bar is low.” Appellant’s Brief

at 18.   Appellant misses the point and mischaracterizes the trial court’s

reasoning. As recited above, what the trial court correctly stated in its January

16, 2018    opinion     was that, at   the    preliminary hearing stage,     the

Commonwealth has a lower evidentiary burden than at trial, where it needs

to prove the elements of a crime beyond a reasonable doubt. Accordingly,

Appellant’s final argument lacks merit.

      In sum, based on our review of the record, we cannot conclude that the

trial court erred in denying Appellant’s petition for review of the DA’s

disapproval of his private criminal complaint.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2018




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