Opinion
1056 WDA 2021 1057 WDA 2021 1058 WDA 2021 1059 WDA 2021 1060 WDA 2021 1061 WDA 2021 1062 WDA 2021 J-A08032-22
04-19-2022
IN RE: JANET L. BRUNERMER APPEAL OF: JANET L. BRUNERMER IN RE: JANET L. BRUNERMER APPEAL OF: JANET L. BRUNERMER IN RE: JANET L. BRUNERMER APPEAL OF: JANET BRUNERMER IN RE: JANET L. BRUNERMER APPEAL OF: JANET BRUNERMER IN RE: JANET L. BRUNERMER APPEAL OF: JANET L. BRUNERMER IN RE: JANET L. BRUNERMER APPEAL OF: JANET L. BRUNERMER IN RE: JANET L. BRUNERMER APPEAL OF: JANET L. BRUNERMER
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 3, 2021 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-MD-0000152-2021
Appeal from the Order Entered August 3, 2021 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-MD-0000146-2021
Appeal from the Order Entered August 3, 2021 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-MD-0000147-2021
Appeal from the Order Entered August 3, 2021 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-MD-0000148-2021
Appeal from the Order Entered August 3, 2021 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-MD-0000149-2021
Appeal from the Order Entered August 3, 2021 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-MD-0000150-2021
Appeal from the Order Entered August 3, 2021 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-MD-0000151-2021
Joseph D. Seletyn, Esq.
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM
McCAFFERY, J.
Janet L. Brunermer (Appellant) appeals pro se from the order entered in the Armstrong County Court of Common Pleas denying her petition for review of 13 consolidated private criminal complaints. The complaints alleged that four employees of Apollo Borough, Pennsylvania committed perjury, false swearing, witness intimidation, and obstruction of justice in connection with Appellant's prior zoning citation for owning a vacant building. On appeal, Appellant alleges the trial court abused its discretion in allowing the Commonwealth to dismiss each of her private criminal complaints. We affirm.
18 Pa.C.S. §§ 4902(a), (b), (e), 4903(a), (b), 4952(a)(3), (a)(4), 5101.
Neither the trial court's opinion nor the parties' briefs provides a citation for the underlying local zoning ordinance Appellant violated. This does not impact our review.
The trial court indicates in its September 8, 2021, opinion that it relies on its August 3, 2021, memorandum, which summarized the underlying facts and procedural history of this case as follows:
Each of [Appellant's] petitions refers to several cases, all of which relate to [her] citation in 2018 for a violation of Apollo['s] . . . vacant building ordinance. A hearing on the citation initially was held on October 25, 2018, before Magisterial District Judge ("MDJ") J. Gary DeComo, who found [Appellant] guilty of violating the ordinance. She appealed to [the trial c]ourt and, after a summary appeal hearing on June 24, 2019, she again was found guilty.
In the interim period between the hearings, [Appellant] submitted several Right to Know Law ("RTKL") requests to Apollo
seeking documents related to the vacancy ordinance and its enforcement. [Appellant] challenged Apollo's response to several of those requests before the Pennsylvania Office of Open Records ("OOR") and in four mandamus actions filed in [the trial c]ourt. [Appellant] later filed a fifth mandamus action seeking enforcement of other OOR determinations regarding RTKL requests she submitted to Apollo in 2020.[FN 1]
[FN 1 Appellant] twice appealed her summary conviction for violating Apollo's vacancy ordinance. Both appeals were dismissed prior to any disposition on the merits.
[On] December [23, ] 2020 and February [2, ] 2021, [Appellant] submitted to the Commonwealth a total of [44] private criminal complaints for approval. The complaints allege certain crimes committed by several Apollo employees and/or contractors 1) at the summary hearing before MDJ DeComo, 2) at the summary appeal hearing before [the trial c]ourt, [ ] 3) in responding to [Appellant's] RTKL requests[, and (4) in responding to Appellant's freedom of information act (FOIA) request.Trial Ct. Op., 8/3/21, at 1-2.
We note the trial court does not specifically mention Appellant's FOIA request in its initial recitation of facts. However, the trial court does address Appellant's FOIA request in its analysis.
This appeal concerns 13 of the private criminal complaints. Specifically, Appellant filed three complaints against Apollo Police Chief Jared Kier, alleging he committed perjury at both the MDJ and trial court hearings, when he stated Appellant owned a vacant building and the prior owners were also cited for violating a vacancy ordinance. Trial Ct. Op. 8/3/21, at 6, 8. Appellant also filed three complaints against Zoning Officer Brenda Troup, for allegedly committing perjury at Appellant's trial court hearing for stating Appellant owned a vacant building and that she gave Appellant information regarding the vacancy ordinance. Id. at 9. Next, Appellant filed two complaints against Apollo Borough Manager Cynthia McDermott, alleging she committed perjury and false swearing at Appellant's MDJ hearing when she testified that Appellant owned a vacant building, and the prior owners were also cited for violating a vacancy ordinance. Id. at 10. Lastly, Appellant filed five complaints against Borough Secretary Deanna Shupe, alleging she committed witness intimidation and obstructed justice when she did not adequately respond to Appellant's RTKL and FOIA requests. Id. at 12-14.
The trial court summarized:
The Commonwealth disapproved all of [Appellant's] complaints, concluding [ ] that each of them lacked prosecutorial merit. [Appellant] thereafter filed a "Complaint in Petition for a Writ of Mandamus" against Armstrong County District Attorney Kathleen M. Charlton. See CP-03-MD-0000036-2021. The [trial c]ourt dismissed the complaint at that case number and directed [Appellant] to instead file petitions for review under Pa.R.Crim.P. 506(B)(2) [(if Commonwealth disapproves the complaint, it shall provide reasons, and affiant may petition the court of common pleas for review of the decision). Appellant] then filed the instant petitions on June 21, 2021.[FN 1] The petitions collectively seek review of 13[FN 2] private criminal complaints.
[FN 1] Although [Appellant's husband] also is a plaintiff in all of the related civil mandamus actions, only [Appellant] is listed as a complainant in the private criminal complaints under review.
[FN 2] Although each of the seven petitions requests review of two private criminal complaints, there are in fact only a collective total of 13 complaints attached to the petitions.Trial Ct. Op. 8/3/21, at 2.
After Appellant petitioned the trial court to review 13 of her dismissed complaints, the trial court ordered the Commonwealth to "clarify its reasons for" dismissal. Trial Ct. Op. 8/3/21, at 2-3. The Commonwealth indicated "that it declined to further investigate or approve all of the private criminal complaints for both legal and policy reasons." Id. at 3. The Commonwealth stated specifically that none of the complaints set forth a prima facie case, the number of complaints and delay in filing of them "call their underlying merit into question," "the original 44 complaints were submitted together on two dates in December 2020 and February 2021, making investigation impossible[, ]" Appellant had civil remedies available to her, and the Commonwealth "does not, as a matter of policy, become involved in municipal ordinance disputes[.]" Id.
On August 3, 2021, the trial court issued a single order denying Appellant's petitions requesting review. Appellant filed timely notices of appeal for each docket number. Although the trial court did not issue a Pa.R.A.P. 1925(b) order, on September 29, 2021, Appellant filed concise statements of errors complained of on appeal at six of the seven dockets.That same day, this Court sua sponte consolidated Appellant's appeals.
Appellant has thus complied with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). See Walker, 185 A.3d at 977 (separate notices of appeal must be filed when a single order resolves issues arising on more than one trial court docket), overruled in part, Commonwealth v. Young, 265 A.3d 462, 477 (Pa. Dec. 22, 2021) (reaffirming that Pa.R.A.P. 341 requires separate notices of appeal when single order resolves issues under more than one docket, but holding Pa.R.A.P. 902 permits appellate court to consider appellant's request to remediate error when notice of appeal is timely filed).
Though Appellant states in each of her six 1925(b) statements the trial court ordered her to file a 1925(b) statement on August 3, 2021, it does not appear the trial court issued this order. See Appellant's Concise Statements of Errors Complained of On Appeal, 9/29/21, at 1. The trial court did, however, deny her petitions for review of private criminal complaints on August 3, 2021. Order, 8/3/21.
Appellant raises the following issue on appeal:
Whether the trial court erred and abused its[ ] discretion in the disapproving the seven private criminal complaints[? sic.]Appellant's Brief at 4.
We first note our standard of review of a trial court's denial of a petition to review the Commonwealth's disapproval of a private criminal complaint: "[T]he 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).
We further note Appellant's pro se arguments are not entirely clear and seem to confuse issues. Nevertheless, we glean the following claims. Appellant avers the Commonwealth dismissed her private criminal complaints without providing her "any legal evaluation of her reasoning[.]" Appellant's Brief at 22. Appellant insists the Commonwealth has "a statutory responsibility to advise [ ] the reasoning behind [ ] disapproval." Id. at 23. Appellant maintains her private criminal complaints set forth prima facie cases for each alleged violation and as such, warranted the Commonwealth to pursue further investigation. Id. at 24. Appellant argues "Apollo Borough employees . . . have lied to [her, ] committed perjury[, and have filed] false attestations [sic]." Id. at 26.
Appellant raises further arguments in her "summary of the argument" section of her brief. There, she accuses Police Chief Kier, Borough Manager McDermott, Zoning Officer Troup, and Borough Secretary Shupe of "lying on the witness stand, withholding evidence, and obstructing justice[.]" See Appellant's Brief at 18. Appellant asserts these witnesses testified to various things but does not present any further argument. Appellant has also filed a reply brief. We conclude no relief is due.
A private criminal complaint must successfully establish a prima facie case against the alleged perpetrator. Miles, 170 A.3d at 534-35 (citations omitted).
[E]ven if the facts recited in the complaint make out a prima facie case, the district attorney cannot blindly bring 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.
The district attorney is permitted to exercise sound discretion to refrain from proceeding in a criminal case whenever he, in good faith, thinks that the prosecution would not serve the best interests of the state. This decision not to prosecute may be
implemented by the district attorney's refusal to approve the private criminal complaint at the outset.Miles, 170 A.3d at 534-35.
"It is well-settled that, if the Commonwealth disapproves a private criminal complaint, the complainant can petition the Court of Common Pleas for review . . . ." In re Private Crim. Complaints of Rafferty, 969 A.2d 578, 581 (Pa. Super. 2009). See also Pa.R.Crim.P. 506(A) (private criminal complaint "shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay"), (B)(2).
When the Commonwealth denies a private criminal complaint "on a hybrid of legal and policy considerations," the trial court reviews this decision for an abuse of discretion. Miles, 170 A.3d at 534-35. As stated above, this Court will then 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." See id. at 534.
The Pennsylvania Crimes Code defines perjury under Subsections (a), (b), and (e) as follows:
(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.
(e) Inconsistent statements - Where the defendant made inconsistent statements under oath or equivalent affirmation, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false but only that one or the other was false and not believed by the defendant to be true.18 Pa.C.S. § 4902(a), (b), (e).
The crime of false swearing is defined as follows:
(a) False swearing in official matters - A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true is guilty of a misdemeanor of the second degree if:
(1) the falsification occurs in an official proceeding; or
(2) the falsification is intended to mislead a public servant in performing his official function. 18 Pa.C.S. § 4903(a)(1)-(2).
The Pennsylvania Crimes Code defines intimidation of witnesses or victims, in part, as:
(a) Offense defined. - A person commits an offense if, with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to:
(3) Withhold any testimony, information, document or thing relating to the commission of a crime from any law enforcement officer, prosecuting official or judge[, or]
(4) Give any false or misleading information or testimony or refrain from giving any testimony, information, document or thing, relating to the commission of a crime, to an attorney representing a criminal defendant.18 Pa.C.S. § 4952(a)(3)-(4).
A person obstructs administration of law or other government functions when they
intentionally obstruct[ ], impair[, ] or pervert[ ] the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act . . .18 Pa.C.S. § 5101.
Upon our review of the record, the parties' briefs, and the relevant statutory and case law, we conclude the trial court's August 3, 2021, opinion thoroughly addresses and properly disposes of Appellant's claim on appeal. Accordingly, we rest on its well-reasoned bases. See Trial Ct. Op. at 5-8 (regarding Appellant's private criminal complaints that Police Chief Kier committed perjury in testifying that Appellant owns a vacant building that was previously "cited as vacant while owned by [Appellant's] predecessor[, ]" Appellant's accusations do "not suggest that [he] or any other individuals knowingly lied"), 9-10 (pertaining to Appellant's private criminal complaints that Zoning Officer Troup committed perjury for testifying that she sent Appellant an information packet that included Apollo's vacancy ordinance, Appellant merely challenged a nonmaterial disagreement about the receipt of the information, and the question of whether Appellant was in violation of an Apollo vacancy ordinance was properly decided by the trial court at her summary proceeding), 10-11 (in reference to Appellant's private criminal complaints that Borough Manager McDermott also committed perjury and false swearing by stating Appellant violated the vacancy ordinance and the previous owners were cited for owning a vacant building, Appellant did not establish a prima facie case as she merely disagreed with Borough Manager McDermott's statement), 11-15 (regarding Appellant's private criminal complaints that Borough Secretary Shupe committed intimidation of a witness or obstruction of administration of law, Appellant does not allege how Shupe's responses to her RTKL and FOIA requests violate Subsection 5101, but instead alleges Shupe's responses were inadequate, and further Appellant "alleges no facts establishing that Shupe intended to obstruct" court proceedings or "intentionally withheld any information" as Subsections 4952(a)(3) and (a)(4) require), 7-9, 11-12, 14-15 (furthermore, the trial court determined the Commonwealth's policy considerations were independently valid and sufficient to support dismissal of each private criminal complaint). As we agree with the trial court's well-reasoned analysis, we affirm the order denying Appellant's petitions for review.
We direct that a copy of the trial court's August 3, 2021, opinion be filed along with this memorandum, and attached to any future filings of this memorandum.
Order affirmed.
Judgment Entered.
MEMORANDUM
McClister, J.
Before the Court for disposition are seven petitions for review of private criminal complaints filed by Petitioner Janet L. Brunermer ("Brunermer") pursuant to Pa. R. Crim. P. 506(B)(2). Because all of the petitions concern the same general subject matter, the Court will address them together.
I. INTRODUCTION AND BACKGROUND
Each of Brunermer's petitions refers to several cases, all of which relate to Brunermer's citation in 2018 for a violation of Apollo Borough's ('Apollo") vacant building ordinance. A hearing on the citation initially was held on October 25, 2018, before Magisterial District Judge ("MDJ") J. Gary DeComo, who found Brunermer guilty of violating the ordinance. She appealed to this Court and, after a summary appeal hearing on June 24, 2019, she again was found guilty. In the interim period between the hearings, Brunermer submitted several Right to Know Law ("RTKL") requests to Apollo seeking documents related to the vacancy ordinance and its enforcement. Brunermer challenged Apollo's response to several of those requests before the Pennsylvania Office of Open Records ("OOR") and in four mandamus actions filed in this Court. Brunermer later filed a fifth mandamus action seeking enforcement of other OOR determinations regarding RTKL requests she submitted to Apollo in 2020.
Brunermer twice appealed her summary conviction for violating Apollo's vacancy ordinance. Both appeals were dismissed prior to any disposition on the merits.
In December 2020 and February 2021, Brunermer submitted to the Commonwealth a total of forty-four private criminal complaints for approval. The complaints allege certain crimes committed by several Apollo employees and/or contractors 1) at the summary hearing before MDJ DeComo, 2) at the summary appeal hearing before this Court, and 3) in responding to Brunermer's RTKL requests. The Commonwealth disapproved all of the complaints, concluding that that each of them lacked prosecutorial merit. Brunermer thereafter filed a "Complaint in Petition for a Writ of Mandamus" against Armstrong County District Attorney Kathleen M. Charlton. See CP-03-MD-0000036-2021. The Court dismissed the complaint at that case number and directed Brunermer to instead file petitions for review under Pa. R. Crim. P. 506(B)(2). Brunermer then filed the instant petitions on June 21, 2021. The petitions collectively seek review of 13private criminal complaints.
Although Scott Brunermer also is a plaintiff in all of the related civil mandamus actions, only Janet Brunermer is listed as a complainant in the private criminal complaints under review.
Although each of the seven petitions requests review of two private criminal complaints, there are in fact only a collective total of 13 complaints attached to the petitions.
The Court directed the Commonwealth to respond to the petitions to clarify its reasons for disapproving the complaints. The Commonwealth timely responded on July 14, 2021, indicating that it declined to further investigate or approve all of the private criminal complaints for both legal and policy reasons. More specifically, the Commonwealth asserts that 1) none of the complaints sets forth & prima facie case of any crime; 2) the sheer number of and delay in filing the complaints call their underlying merit into question; 3) the original 44 complaints were submitted together on two dates in December 2020 and February 2021, making investigation impossible; 4) ample civil remedies are available; and 5) the Commonwealth does not, as a matter of policy, become involved in municipal ordinance disputes and defers all prosecutions under those ordinances to municipal solicitors.
II. STANDARD OF REVIEW
In reviewing private criminal complaints pursuant to Pa. R. Crim. P. 506(B)(2), the Court applies the following standard and governing principles:
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. . . .
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. This deferential standard recognizes the limitations on judicial power to interfere with the district attorney's discretion in these kinds of decisions.
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.
Even if the facts recited in the complaint make out a prima facie case, the district attorney cannot blindly bring 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.
The district attorney is permitted to exercise sound discretion to refrain from proceeding in a criminal case whenever he, in good faith, thinks that the prosecution would not serve the best interests of the state. This decision not to prosecute may be implemented by the district attorney's refusal to approve the private criminal complaint at the outset.
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 Miles, 170 A.3d 530, 534-536 (Pa. Super. Ct. 2017) (internal citations and quotations omitted).
Here, because the Commonwealth disapproved all of Brunermer's private criminal complaints based on mixed legal and policy considerations, the Court applies the more deferential abuse of discretion standard of review.
III. DISCUSSION
A. CP-03-MD-0000146-2021 - COMMONWEALTH v. KIER (18 Pa. Cons. Stat. Ann § 4902(aUe))
Brunermer's first petition seeks review of a private criminal complaint against Jared Kier, the former Apollo chief of police, regarding testimony he provided at the hearings before both MDJ DeComo and this Court. The complaint alleges that Kier violated subsections 4902(a) and 4902(e) of the Pennsylvania perjury statute, which provide as follows:
Although Brunermer indicates in the petition that she seeks review of two private criminal complaints, only one complaint is attached to the petition.
(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.
(e) Inconsistent statements.-Where the defendant made inconsistent statements under oath or equivalent affirmation, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false but only that one or the other was false and not believed by the defendant to be true.18 Pa. Cons. Stat. Ann §§ 4902(a), (b), (e). The complaint alleges that Kier testified that Brunermer "was the owner of a vacant building" that had been cited as vacant while owned by Brunermer's predecessor. The complaint further alleges that these statements were false because there was no evidence that the building was, in fact, vacant prior to Brunermer's purchase.
These allegations, even if established, would not as a matter of law constitute a violation of subsections 4902(a) or (e):
The general purpose of this section is to define the various situations in which lying constitutes a felony. The essential elements of the offense are (1) oath or affirmation; (2) materiality of the lie; and (3) requirement that the lie be told in an official proceeding involving a hearing. If there is no oath or affirmation, the falsification can only be a misdemeanor. Subsection (f) of the perjury statute has produced explanatory and applicable case law which states corroboration of perjury still requires two witnesses or one witness and circumstantial evidence to support the witness. The circumstantial evidence must fit together so tightly as to preclude any reasonable doubt of guilt and serves the principal purposes of the common law two-witness rule, namely, protecting the defendant against good-faith mistakes and against the grudge witness.
Prosecution under subsection (e) for perjury involving inconsistent statements made under oath or equivalent affirmation, however, does not require corroboration: Where there is proof that the defendant made two contradictory statements under oath. When such conflicting statements are made there is no doubt that the person making them has committed perjury for he establishes it, but the difficulty is as to which of the two statements is the false one. In such case, the problem is reduced to one of determining whether there is some competent evidence from which the jury might find that the perjury was committed on the occasion charged in the indictment. The evidence necessary to identify the perjured statement may be direct or circumstantial but it must be competent.In re Miles, 170 A.3d at 538 (internal citations and quotations omitted). Here, as in several of her other private criminal complaints, Brunermer disagrees with the witnesses' testimony that she purchased a property that was vacant and continued to be vacant after purchase. The fact that Brunermer disagrees with that testimony does not suggest that Kier or any other individuals knowingly lied under oath such as could give rise to a violation of subsection 4902(a). In addition, subsection 4902(e) only applies when a witness testifies to two or more facts that are so logically inconsistent with each other that there can be no question that the witness is lying about one of those facts. There is no such allegation by Brunermer against Kier here.
Moreover, the Court finds all of the policy considerations stated by the Commonwealth to be valid and independently supportive of disapproving the complaints. The complaints were filed en masse on two days in December 2020 and February 2021. The number of the complaints alone was prohibitive of any serious investigation, and the Commonwealth was justified in not expending taxpayer resources to pursue each or any of them. The Commonwealth's policy of not becoming involved in municipal ordinance violation prosecutions is also valid, particularly here where the crux of Brunermer's ongoing litigation with Apollo centers on her disagreement with its practices in enforcing its zoning ordinance. There are available civil remedies, which Brunermer has sought exhaustively.
In sum, the Court concludes that the Commonwealth did not abuse its discretion in disapproving the private criminal complaint filed at the above number.
B. CP-03-MD-0000147-2021 - COMMONWEALTH v. KIER (18 Pa. Cons. Stat. Ann § 4902(a), (e))
At this case number, Brunermer seeks review of two private criminal complaints against Kier, both of which charge violations of the perjury statute. Both complaints allege that Kier violated subsections 4902(a) and 4902(e) during his testimony at the summary hearing before this Court on June 24, 2019. The first complaint alleges that Kier testified that Brunermer had violated Apollo's vacancy ordinance when, in fact, she had not. The second complaint alleges that Kier testified that the prior owners of Brunermer's property also were cited for vacancy violations when, in fact, they were not.
Neither of these sets of facts establishes a violation of either subsection of the perjury statute. In the first complaint, Brunermer merely disagrees with Kier's conclusion that she was in violation of the vacancy ordinance. Again, that is a legal issue that was litigated and decided in summary court. In the second complaint, Brunermer alleges that she later discovered that her property had not formerly been cited for a vacancy violation. There is no indication of what Brunermer discovered that establishes that fact. Further, whether a prior owner was cited for a vacancy violation is immaterial to whether Brunermer violated the ordinance. Thus, neither complaint establishes a. prima facie case of perjury against Kier.
Further, as the subject matter of these two complaints is the same as the complaint discussed above, the Court again finds the Commonwealth's policy considerations to be independently valid and sufficient to support disapproval. For that additional reason, the Court concludes that the Commonwealth did not abuse its discretion in disapproving the two criminal complaints filed at the above case number.
C. CP-03-MD-0000148-2021 - COMMONWEALTH v. TROUP (18 Pa. Cons. Stat. Ann $ 4902(aUb). (e))
In this petition, Brunermer seeks review of three private criminal complaints against Brenda Troup. All three complaints allege that Troup violated several subsections of § 4902 in her testimony at the summary hearing on June 24, 2019. The first two complaints again take issue with whether Brunermer was in violation of Apollo's vacancy ordinance. That is a question of law determined by this Court at the summary hearing. It cannot form the basis of a perjury charge. The third complaint alleges that Troup testified that Brunermer received a packet of information from Apollo in August 2017, which packet included Apollo's vacancy ordinance. Brunermer alleges that she received no such packet. This discrepancy does not establish a violation of any subsection of § 4902. The fact that Troup and Brunermer disagreed about what information was sent and/or received from Apollo does not establish that Troup committed perjury; nor is this fact material to the question of whether Brunermer's property was, in fact, vacant. Thus, none of the complaints establishes a violation of any of the subsections of § 4902.
Although the petition references two complaints, three in fact are attached.
Further, as the subject matter of these three complaints is the same as those discussed above, the Court again finds the Commonwealth's policy considerations to be independently valid and sufficient to support disapproval. For that additional reason, the Court concludes that the Commonwealth did not abuse its discretion in disapproving the three criminal complaints filed at the above case number.
D. CP-03-MD-0000149-2021 - COMMONWEALTH v. McDERMOTT (18 Pa. Cons. Stat. Ann § 4902(aUb), (e); § 4903(a), (b))
In this petition, Brunermer seeks review of two private criminal complaints against Cynthia McDermott. Both complaints allege identical facts. The first complaint alleges violations of § 4902 by McDermott at the summary hearing before MDJ DeComo on October 25, 2018. It alleges that McDermott, like Kier and Troup, testified that Brunermer violated Apollo's vacancy ordinance and that the prior owners of Brunermer's property also had been cited for the same violation. Brunermer contends that both of those statements were false. As set forth above, the issue of whether Brunermer violated the vacancy ordinance is a legal question that the Court disposed of at the summary hearing. The question of whether Brunermer's property previously had been vacant is immaterial to whether the property was vacant at the time Brunermer was cited. Thus, the complaint does not set forth a prima facie case of perjury.
In the second complaint, Brunermer alleges that McDermott also violated 18 Pa. Cons. Stat. Ann. § 4903(a), (b) during her testimony on October 25, 2018. That section provides as follows:
(a) False swearing in official matters.-A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true is guilty of a misdemeanor of the second degree if:
(1) the falsification occurs in an official proceeding; or
(2) the falsification is intended to mislead a public servant in performing his official function.
(b) Other false swearing.-A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true, is guilty of a misdemeanor of the third degree, if the statement is one which is required by law to be sworn or affirmed before a notary or other person authorized to administer oaths.
(c) Perjury provisions applicable.-Section 4902(c) through (f) of this title (relating to perjury) applies to this section.18 Pa. Cons. Stat. Ann § 4903(a)-(c). The complaint alleges no facts establishing that McDermott made sworn statements that she did not believe to be true. The complaint therefore fails to set forth any violation of § 4903.
Further, as the subject matter of both of these complaints is the same as those discussed above, the Court again finds the Commonwealth's policy considerations to be independently valid and sufficient to support disapproval. For that additional reason, the Court concludes that the Commonwealth did not abuse its discretion in disapproving the two criminal complaints filed at the above case number.
E. CP-03-MD-0000150-2021 - COMMONWEALTH v. SHUPE (18 Pa. Cons. Stat. Ann § 5101)
In this petition, Brunermer seeks review of two private criminal complaints against Deanne Shupe, who also testified at the summary hearing before this Court on June 24, 2019. The complaints both allege violations of 18 Pa. Cons. Stat. Ann. § 5101, which provides as follows:
"Deanne" should be "Deanna."
A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.18 Pa. Cons. Stat. Ann. § 5101. First, although Brunermer submits two private criminal complaints for review, they are exactly the same, and the Court will address them together. Both complaints allege that Shupe violated § 5101 in failing to appropriately respond to a Right to Know Law ("RTKL") request Brunermer submitted to Apollo in in June 2019. Brunermer does not state how Apollo's response violated § 5101, but rather merely sets forth the substance of her RTKL request, alleges that Shupe did not respond adequately, and then cites the language of § 5101. Those allegations do not establish a prima face case of any crime. Any redress is to be had in the RTKL appeals process.
Further, as the subject matter of these two complaints is the same as those discussed above, the Court again finds the Commonwealth's policy considerations to be independently valid and sufficient to support disapproval. For that additional reason, the Court concludes that the Commonwealth did not abuse its discretion in disapproving the two criminal complaints filed at the above case number.
F. CP-03-MD-0000151-2021 - COMMONWEALTH v. SHUPE (18 Pa-Cons. Stat. Ann § 4952(a)(3), (a)(4); § 5101)
In this petition, Brunermer seeks review of two private criminal complaints against Deanna Shupe for violations of § 5101 and 18 Pa. Cons. Stat. Ann. §§ 4952(a)(3) and (a)(4). Both complaints allege that Shupe did not adequately respond to Brunermer's RTKL requests submitted to Apollo on June 11, 2019. Brunermer alleges that Shupe purposefully did not provide the requested documents so that Brunermer would not have them to use in her defense at the summary hearing before this Court on June 24, 2019.
With regard to § 5101, Brunermer's allegations fail to establish how Shupe, in responding to the RTKL request, intended to obstruct the summary court proceedings. Brunermer merely alleges that Shupe's response was insufficient and untimely. Those issues have been litigated at length in the civil matters Brunermer cites in her petition. Brunermer thus fails to allege prima facie violations of § 5101.
With regard to section 4952, that section provides, in pertinent part, as follows:
(a) Offense defined.--A person commits an offense if, with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to:
(3) Withhold any testimony, information, document or thing relating to the commission of a crime from any law enforcement officer, prosecuting official or judge.
(4) Give any false or misleading information or testimony or refrain from giving any testimony, information, document or thing, relating to the commission of a crime, to an attorney representing a criminal defendant.18 Pa. Cons. Stat. Ann. § 4952(a)(3), (4). Brunermer alleges no facts establishing that Shupe intended to obstruct the summary court proceedings by her response to the RTKL request. Further, Brunermer submitted the request to Apollo, not to Shupe personally. Apollo is responsible for any deficiency in the response, which issue, as stated above, has been litigated at length.
Further, as the subject matter of these two complaints is the same as those discussed above, the Court again finds the Commonwealth's policy considerations to be independently valid and sufficient to support disapproval. For that additional reason, the Court concludes that the Commonwealth did not abuse its discretion in disapproving these criminal complaints.
G. CP-03-MD-0000152-2021 - COMMONWEALTH v. SHUPE (18 Pa. Cons. Stat. Ann $ 4952(a)(3), (a)(4))
In her last petition, Brunermer seeks review of one private criminal complaint against Shupe for a violation of § 4952. The violation relates to a "FOIA" request submitted to Apollo on May 7, 2019. Brunermer alleges that Shupe did not produce the requested information prior to the summary hearing on June 24, 2019. Again, these facts do not establish that Shupe intentionally withheld any information intending to obstruct the summary court proceedings. Shupe was not responsible to respond personally to the request or provide any information. Rather, any deficiency in Apollo's response to the request is Apollo's responsibility, and Brunermer may utilize and has utilized the available civil remedies.
Although the petition references two complaints, only one is attached.
Further, the subject matter of this complaint is the same as those discussed above. The Court again finds the Commonwealth's policy considerations to be independently valid and sufficient to support disapproval. For that additional reason, the Court concludes that the Commonwealth did not abuse its discretion in disapproving the private criminal complaint filed at the above case number.
IV. CONCLUSION
Because the Commonwealth did not abuse its discretion in disapproving the private criminal complaints under review, the Court will affirm the Commonwealth's determinations and deny Brunermer's petition.
An appropriate order follows.
ORDER
AND NOW, this 3rd day of August, 2021, upon consideration of the several petitions for review of private criminal complaints filed by Janet L. Brunermer, the Court concluding that the Commonwealth did not abuse its discretion in disapproving the complaints, NOW THEREFORE, it is ORDERED that the Commonwealth's determinations with regard to all of the private criminal complaints reviewed at all of the above-captioned cases be and hereby are AFFIRMED. The petitions accordingly are DENIED.
Chase G. McClister, J.