J-A25020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: RYAN KERWIN                                 IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA



APPEAL OF: RYAN KERWIN
                                                       No. 501 EDA 2014


                   Appeal from the Order of January 24, 2014
                 In the Court of Common Pleas of Bucks County
               Criminal Division at No.: CP-09-MD-0003259-2013


BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                       FILED NOVEMBER 18, 2014

       Ryan Kerwin appeals, pro se, the January 24, 2014 order affirming the

Bucks County District Attorney’s Office’s disapproval of Kerwin’s private

criminal complaint. We dismiss the appeal.

       The trial court has summarized the facts of this case as follows:

       On November 26, 2007, Kerwin was arrested for criminal
       conspiracy, retail theft, and receiving stolen property. At a trial
       by jury held on June 23 and 24, 2008, in the Court of Common
       Pleas of Bucks County, Kerwin was found not guilty of all
       charges.

       On October 20, 2009, Kerwin filed a civil complaint against
       Corporal Victoria Crosier, the arresting officer in his criminal
       matter, asserting causes of action for malicious prosecution and
       abuse of process. A jury trial on that civil case was held on
       August 26, 27, and 28, 2013. It resulted in a verdict in favor of
       Corporal Crosier.


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*
       Retired Senior Judge assigned to the Superior Court.
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      Kerwin then attempted to file a private criminal complaint with
      the Bucks County District Attorney’s Office against a witness,
      Anna Carlin, who appeared in both the criminal and civil trials, as
      Kerwin alleged the witness committed perjury. The District
      Attorney’s Office refused to approve the complaint.

Trial Court Opinion (“T.C.O.”), 3/24/2014, at 1-2 (some capitalization

modified).

      In his private criminal complaint, Kerwin alleged that Anna Carlin

committed perjury because of inconsistencies between the testimony that

she provided in the criminal and civil trials.   Specifically, Kerwin alleged that

while Ms. Carlin testified at Kerwin’s criminal trial that she did not witness

the alleged theft and was not able to identify the involved suspects, she

testified five years later at Kerwin’s civil trial that she did witness the theft,

and she identified Kerwin as the individual that committed the theft. Brief

for Kerwin at 13-14.

      On November 18, 2013, Kerwin filed a motion to appeal the District

Attorney’s denial of his private criminal complaint.      The trial court held a

hearing on Kerwin’s motion on January 24, 2014, after which it denied his

motion. Kerwin timely filed a pro se notice of appeal on February 7, 2014.

On February 24, 2014, the trial court directed Kerwin to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

to be served upon the court no later than March 17, 2014. Kerwin timely

filed a concise statement on March 11, 2014. On March 24, 2014, the trial

court issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Kerwin raises the following two questions for our review:

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       A. Whether [Kerwin] produced sufficient evidence under the
          legal and evidentiary standard needed to prosecute Anna
          Carlin with the crime of perjury[?]

       B. Whether [Kerwin’s] issues are waived due to improper service
          of the instant appeal in the Common Pleas Court or for failure
          to purchase transcripts from the January 24, 2014 hearing[?]

Brief for Kerwin at 3.

       We note first that Kerwin failed to obtain the January 24, 2014 hearing

transcript.    Because of this failure, our ability to review the merits of

Kerwin’s appeal is critically impeded.         Accordingly, we begin with Kerwin’s

second issue.      There, Kerwin argues that the January 24, 2014 hearing

transcript is unnecessary to his appeal.1         Brief for Kerwin at 20, 22.   We

disagree, and conclude that the transcript is essential to this appeal.

       To proceed with a private criminal complaint, a complainant must

secure the approval of an attorney for the Commonwealth.              Pa.R.Crim.P.

506(A). If the attorney for the Commonwealth disapproves the complaint,

the attorney must notify the complainant of the reasons for the disapproval,

and the complainant may petition the trial court for review of the decision.

Pa.R.Crim.P. 506(B)(2).        The trial court’s standard of review is dependent

upon the reasons provided by the district attorney for the disapproval.

____________________________________________


1
       Kerwin also challenges the trial court’s determination that Kerwin
failed to serve the trial court with his notice of appeal, and that we should
deem his issues to be waived. T.C.O. at 5-6. However, the certified record
includes Kerwin’s notice of appeal and indicates that it was timely filed.
Nonetheless, because Kerwin failed to obtain the necessary transcripts for us
to review his claim, we need not address this issue.



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“[W]hen 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.”   In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en

banc). However, “when the district attorney disapproves a private criminal

complaint on wholly policy considerations, or on a hybrid of legal and policy

considerations, the trial court’s standard of review of the district attorney’s

decision is abuse of discretion.”    Id. at 215.     In applying the abuse of

discretion standard, the trial court must give deference to the district

attorney’s policy-based decision absent a showing of bad faith, fraud, or

unconstitutionality.   Commonwealth v. Brown, 708 A.2d 81, 84 (Pa.

1998).

      Similarly, our standard of review also depends upon the district

attorney’s rationale for the disapproval.       Where the district attorney’s

decision is based solely upon legal conclusions, and the trial court’s standard

of review is de novo, “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.”        Wilson,

879 A.2d at 214. Where the district attorney’s decision is based upon policy

considerations or a hybrid of legal and policy considerations, and the trial

court’s standard of review is abuse of discretion, “the 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.” Id. at 215.




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        In the instant case, Kerwin relies upon the fact that, in notifying him of

the disapproval of his private criminal complaint, the district attorney cited

“insufficient evidence” as the reason for the disapproval. Brief for Kerwin at

18. While we acknowledge that, standing alone, this reason would appear to

be a strictly legal conclusion that would call for de novo review by the trial

court, the district attorney’s letter is not determinative of our conclusion as

to which standard of review controls.        After Kerwin received the letter, he

appealed to the trial court, and on January 24, 2014, the trial court held a

hearing on Kerwin’s petition for review of the district attorney’s decision.

During this hearing, the district attorney testified regarding his rationale for

disapproving Kerwin’s private criminal complaint.        That testimony must be

considered in identifying the district attorney’s reasons for the disapproval.

Because Kerwin concededly failed to obtain a transcript of the notes of

testimony from that hearing, Brief for Kerwin at 22, the certified record is

insufficient to determine the appropriate standard of review. The trial court

was similarly impaired by the absence of a complete record, noting in its

opinion that, “[b]ecause we do not have the notes of testimony in the

instant matter, we are forced to recall what happened at the hearing from

our personal notes and memory.” T.C.O. at 8.

        Kerwin argues that the transcript is not necessary for our review.

Brief   for   Kerwin   at   22.   Kerwin’s    argument    is   premised   upon   a

misunderstanding of the standard of appellate review in cases of this type.

He argues that we must employ a de novo standard and a plenary scope of

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review, and thus must reconsider whether the evidence that he provided is

sufficient to establish a charge of perjury. Id. This is a misstatement of the

proper role of appellate courts.

      When an appeal is brought from a common pleas court’s decision
      regarding the approval or disapproval of a private criminal
      complaint, an appellate court is limited to ascertaining the
      propriety of the trial court’s actions. Thus, our review is limited
      to determining whether the trial court abused its discretion or
      committed an error of law.

Commonwealth v. Brown, 669 A.2d 984, 990 (Pa. Super. 1995) (en banc)

(emphasis in original). Kerwin asserts that “the content of the January 24,

2014 hearing transcripts are [sic] not the subject of the current appeal.”

Brief for Kerwin at 22. Quite to the contrary, the evidence produced at that

hearing was the basis for the trial court’s order from which Kerwin is directly

appealing and is essential to establishing our proper standard of review.

Thus, a transcript of the January 24, 2014 hearing is vital to our review of

the trial court’s actions.

      This Court has held that the failure to obtain necessary transcripts

results in the waiver of any claims that are dependent upon those

transcripts.

      With regard to missing transcripts, the Rules of Appellate
      Procedure require an appellant to order and pay for any
      transcript necessary to permit resolution of the issues raised on
      appeal. Pa.R.A.P. 1911(a). . . . When the appellant or cross-
      appellant fails to conform to the requirements of Rule 1911, any
      claims that cannot be resolved in the absence of the necessary
      transcript or transcripts must be deemed waived for the purpose
      of appellate review. It is not proper for either the Pennsylvania
      Supreme Court or the Superior Court to order transcripts nor is it

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      the responsibility of the appellate courts to obtain the necessary
      transcripts.

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)

(some citations omitted).

      Kerwin attributes his failure to obtain the transcript to his inability to

afford its purchase. Brief for Kerwin at 23. However, there is no indication

in the record that Kerwin attempted to proceed in forma pauperis.

Furthermore, Kerwin’s financial condition does not obviate the need for a

complete record on appeal, particularly when there are means available to

provide economic assistance in the provision of necessary materials. As our

Supreme Court has stated:

      Of course, if a party is indigent, and is entitled to taxpayer-
      provided transcripts or portions of the record, he will not be
      assessed costs. But, that does not absolve the appellant and his
      lawyer of his obligation to identify and order that which he
      deems necessary to prosecute his appeal.

Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa. 2011). We acknowledge

that Kerwin did not deem the January 24, 2014 hearing transcript to be

necessary to his appeal.      Kerwin’s own assessment of the transcript’s

immateriality is misplaced.   As we stated above, Kerwin’s conclusion was

premised upon a misunderstanding of the law. Kerwin’s pro se status does

not absolve him of the need to provide us with what is necessary to permit

us to review his appeal.

      Although this Court is willing to liberally construe materials filed
      by a pro se litigant, pro se status confers no special benefit upon
      the appellant. To the contrary, any person choosing to represent


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       himself in a legal proceeding must, to a reasonable extent,
       assume that his lack of expertise and legal training will be his
       undoing.

In re Ullman, 995 A.2d 1207, 1211-12 (Pa. Super. 2010).

       As to the consequences of Kerwin’s failure to obtain the necessary

transcript, our Rules of Appellate Procedure provide, in relevant part:

       Rule 1911. Request for Transcript

                                      *        *   *

       (d) Effect of failure to comply. If the appellant fails to take the
       action required by these rules and the Pennsylvania Rules of
       Judicial Administration for the preparation of the transcript, the
       appellate court may take such action as it deems appropriate,
       which may include dismissal of the appeal.

Pa.R.A.P. 1911(d). Kerwin’s failure to obtain the transcript of the January

24, 2014 hearing precludes our determination of the appropriate standard of

review, and therefore prevents us from conducting a meaningful review of

the trial court’s order. Accordingly, we are constrained to dismiss Kerwin’s

appeal.2




____________________________________________


2
        Because we dismiss the appeal upon the basis of Kerwin’s second
issue, we are unable to address the merits of the claim that he raises in his
first issue.



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     Appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




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