In Re: Kissell, M. Appeal of: Kissell, M. ( 2021 )

J-A11027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: MICHAEL F. KISSELL : IN THE SUPERIOR COURT OF
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APPEAL OF: MICHAEL F. KISSELL : No. 1312 WDA 2020
Appeal from the Order Entered October 28, 2020
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-MD-0000577-2020
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED: JUNE 28, 2021
Appellant, Michael F. Kissell, appeals pro se from the order entered in
the Westmoreland County Court of Common Pleas, denying Appellant’s
petition for approval of his private criminal complaint (“PCC”). We affirm.
The relevant facts and procedural history of this case are as follows. On
July 6, 2020, Appellant filed a PCC alleging that his former attorney,
Christopher P. Skatell, committed various crimes during a period in which
Attorney Skatell failed to adequately represent Appellant. Specifically,
Appellant claimed that Attorney Skatell committed theft with intent to
defraud; false representation in billing; and theft of more than $30,000.00.
The district attorney disapproved the PCC on August 12, 2020, finding that it
lacked prosecutorial merit and the prosecution could not prove the case
beyond a reasonable doubt. On August 21, 2020, Appellant filed a petition
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for review of the prosecutor’s disapproval of his PCC. The court denied and
dismissed Appellant’s petition for review on October 28, 2020. Appellant
timely filed a notice of appeal on November 19, 2020. On December 4, 2020,
the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, and Appellant timely complied.
Appellant raises the following issues for our review:
Whether Mr. Skatell’s dishonesty caused the dismissal of a
Pension Hearing. Mr. Skatell failed to present witnesses
involving the [m]isappropriation of Government funds of a
jury award for back-pay that was done to avoid proper
reporting and withholding procedures to the Internal
Revenue Service.
Whether Mr. Skatell violated his attorney client relationship
by failing to present documentation from Appellant’s [t]ax
[a]ttorney involving a 7[-]year concealed overpayment that
was [n]ot supported by any proof.
Whether Mr. Skatell knowingly kept the [d]isbarment of
Appellant’s past attorney Leonard Sweeney and the
involvement of the Office of the Attorney General Rodney
Torbic from the Pension Examiner by failing to present
evidence in his possession and making no response to the
[h]earing examiner recommendation while aiding in the
delay of a decision.
Whether Mr. Skatell had a scheme to enrich himself due to
the involvement of the Deputy Attorney General Rodney
Torbic.
Whether the actions of Mr. Skatell aided the respondents in
delays cover-up and concealment of declared checks issued
in [A]ppellant’s name and cashed out of state some with no
proof or verification involving W-4 tax requirements.
Whether Mr. Skatell aided by his failures to conceal a[n]
unproven overpayment and criminal acts by the [d]isbarred
Attorney Leonard Sweeney’s past legal representation of
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Appellant and or collusion of [p]ast counsel Leonard
Sweeney and opposing counsel Rodney Torbic Deputy
Attorney General who gave several checks inappropriately
issued in [A]ppellant[’]s name forged and cashed in the
state of Ohio. To avoid proper withholding of taxes and
associated benefits per W-4 reporting procedures bank
fraud and tax fraud.
Whether Mr. Skatell actually discussed the matter with [t]ax
[a]ttorney and the alleged actual concealment of an
overpayment finally alleged proven December 8, 2020 by
the IRS 15 years later.
Whether Mr. Skatell misrepresented Appellant by failing to
[file a petition for] writ of certiorari for the Re-opening of a
Title VII and 1983 Civil Right claim filed Pro Se in
Summerset Pa. by Appellant.
Whether Mr. Skatell mislead [A]ppellant by billing invoices
to present the appearance of the filing of a petition for a writ
of certiorari.
Whether Mr. Skatell enriched himself by filing a bogus Title
V[II] case in Pittsburg[h] Pa. [k]nowing it would be [e]asily
[d]ismissed by the office of the Attorney General by Res
Judicata while billing Appellant profusely for the Title VII
case. Magnifying his profits presenting he was interviewing
witnesses and the evidence of many documents given to
him Mr. Skatell has been paid up front $31,000 dollars and
has billed in excess of $50,000 dollars. These invoices were
shared as evidence to the [trial] court along with e-mails of
Mr. Skatell.
Whether Mr. Skatell aided by his failures to conceal an
unproven overpayment and criminal acts by the [d]isbarred
Attorney Leonard Sweeney’s past legal representation of
Appellant or collusion of [p]ast counsel Leonard Sweeney
and opposing counsel Rodney Torbic Deputy Attorney
General who gave several checks inappropriately issued in
Appellant’s name forged and cashed in the state of Ohio. To
avoid proper withholding of taxes and associated benefits
per W-4 reporting procedures [bank fraud] and [tax fraud].
Whether Mr. Skatell actually discussed the matter with [t]ax
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[a]ttorney and the alleged actual concealment of a[n]
overpayment finally proven on December 8, 2020.
(Appellant’s Brief at 2-5).
Preliminarily, we observe that appellate briefs must conform in all
material respects to the briefing requirements set forth in the Pennsylvania
Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119
(addressing specific requirements of each subsection of brief on appeal).
Regarding the argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided into
as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a). “[I]t is an appellant’s duty to present arguments that are
sufficiently developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with citations to legal
authorities.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.
2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (internal citations
omitted). “This Court will not act as counsel and will not develop arguments
on behalf of an appellant.” Id. If a deficient brief hinders this Court’s ability
to address any issue on review, we shall consider the issue waived.
Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (holding
appellant waived issue on appeal where he failed to support claim with
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relevant citations to case law and record). See also In re R.D., 44 A.3d 657(Pa.Super. 2012), appeal denied, 618 Pa. 677, 56 A.3d 398 (2012) (holding
appellant waived issue, where argument portion of appellant’s brief lacked
meaningful discussion of, or citation to, relevant legal authority regarding
issue generally or specifically; appellant’s lack of analysis precluded
meaningful appellate review). Additionally, 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. Commonwealth v. Lyons, 833 A.2d 245(Pa.Super. 2003), appeal denied, 583 Pa. 695, 879 A.2d 782 (2005).
Instantly, Appellant raises twelve issues in his statement of questions
presented. Nevertheless, Appellant fails to provide any cogent arguments
concerning any of these issues. See Pa.R.A.P. 2119(a). Rather, Appellant
makes conclusory statements without any citations to case law or evidence to
substantiate his allegations. Appellant’s failure to adequately develop his
issues on appeal prevents meaningful review and constitutes waiver of his
claims. See Hardy, supra; Gould, supra.Moreover, even if Appellant properly preserved his issues on appeal, he
would not be entitled to relief. As best we can determine, Appellant argues
the evidence that he presented in his PCC required the district attorney to
initiate criminal charges against Attorney Skatell. Specifically, Appellant
complains his case is more than just a civil contract dispute; it is a criminal
case worthy of prosecution. Appellant claims he properly alleged charges
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against Attorney Skatell of theft by unlawful taking, receiving stolen property,
and tax and bank fraud. Appellant disputes the district attorney’s
investigation into Attorney Skatell’s alleged crimes, and its conclusion that
insufficient evidence exists to pursue criminal charges. Appellant concludes
the trial court improperly denied his petition for approval of the PCC, and this
Court must reverse. We disagree.
Our examination of a trial court’s review of a district attorney’s decision
to disapprove a PCC implicates the following principles:
[W]hen the district attorney disapproves a [PCC] 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.
When the district attorney disapproves a [PCC] 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 of review recognizes the limitations on
judicial power to interfere with the district attorney’s
discretion in these kinds of decisions.
In re Ullman, 995 A.2d 1207, 1213 (Pa.Super. 2010), appeal denied, 610
Pa. 600, 20 A.3d 489 (2011) (quoting In re Private Criminal Complaint of
Wilson, 879 A.2d 199, 214 (Pa.Super. 2005) (en banc)).
“A [PCC] must at the outset set forth a prima facie case of criminal
conduct.” In re Ullman, supra at 1213.
Nevertheless, even a well-crafted [PCC] cannot be the end
of the inquiry for the prosecutor. The district attorney must
investigate the allegations of the complaint to permit a
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proper decision whether to approve or disapprove the
complaint. [S]uch 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 futile prosecutions.
Moreover,
[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.
In re Miles, 170 A.3d 530, 535 (Pa.Super. 2017) (internal citations omitted).
Further:
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 [PCC] at the outset.
When the district attorney disapproves a [PCC], based on
the sufficiency of the evidence necessary to establish the
elements of the crime charged, that decision is a legal
conclusion subject to de novo review.
In re Ullman, supra at 1214 (quoting Commonwealth v. Malloy, 450 A.2d
689, 692 (Pa.Super. 1982)).
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Pennsylvania Rule of Criminal Procedure 506 governs the approval of a
PCC as follows:
Rule 506. Approval of Private Complaints
(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;
(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. If the district attorney disapproves a PCC, the complainant
can petition the Court of Common Pleas for a Rule 506 review. In re Private
Complaint of Adams, 764 A.2d 577, 580 n.4 (Pa.Super. 2000).
The private criminal complainant has the burden to prove
the district attorney abused his discretion, and that burden
is a heavy one. In the Rule 506 petition for review, the
private criminal complainant must demonstrate the district
attorney’s decision amounted to bad faith, fraud or
unconstitutionality. The complainant must do more than
merely assert the district attorney’s decision is flawed in
these regards. The complainant must show the facts of the
case lead only to the conclusion that the district attorney’s
decision was patently discriminatory, arbitrary or
pretextual, and therefore not in the public interest. In the
absence of such evidence, the trial court cannot presume to
supervise the district attorney’s exercise of prosecutorial
discretion, and should leave the district attorney’s decision
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undisturbed.
In re Private Criminal Complaint of Wilson, supra at 215.
The trial court must first correctly identify the nature of the
district attorney’s reason(s) for denying a private criminal
complaint. Although a district attorney’s legal evaluation of
the evidence standing alone is subject to de novo review,
there is no simple formula for the trial court to determine
what constitutes an abuse of prosecutorial discretion.
Everything will depend on the particular facts of the case
and the district attorney’s articulated reasons for acting, or
failing to act, in the particular circumstances. For example,
a court [might] find [an abuse] of discretion in a district
attorney’s pattern of discriminatory prosecution, or in
retaliatory prosecutions based on [the district attorney’s]
personal or other impermissible motives. Similarly, a
district attorney [might] be found to have...abused his
discretion for his blanket refusal to prosecute for violations
of a particular statute or for refusing to prosecute solely
because the accused is a public official.
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 [PCC]. 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.
Id. at 212–13 (internal citations omitted).
Instantly, Appellant’s PCC is largely based on his own uncorroborated
assertions against Attorney Skatell. The district attorney’s reasons for
disapproving the PCC were insufficient evidence, insufficient probable cause,
and lack of prosecutorial merit. Essentially, Appellant’s PCC stated that he
requested Attorney Skatell to file a writ of certiorari to the United States
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Supreme Court, and to represent him before the Pension Board. (See
Appellee’s Brief at 9). However, the district attorney noted that Attorney
Skatell disputed these allegations, and Attorney Skatell explained that
Appellant failed to provide him with the necessary documents to pursue these
actions. (See id.) The district attorney also indicated that Appellant failed to
inform Attorney Skatell that a court had already dismissed his case, which
precluded any additional filings. (Id.)
In denying Appellant’s petition for approval of the PCC, the trial court
explained:
Upon an independent review of the complaint, all relevant
material, and the applicable case law, it is the opinion of this
[c]ourt that the allegations contained in the [PCC] lack merit
and cannot be proven by the applicable standard of proof
beyond a reasonable doubt. Despite the correspondence
and invoices provided by [Appellant], the [c]ourt finds that
the allegations contained in [Appellant]’s complaint are
uncorroborated and fail to adequately allege facts and
sufficient evidence to warrant approval of the [PCC].
(Trial Court Opinion, filed December 11, 2020, at 3) (internal citations
omitted). On this record, we see no error in the trial court’s decision to deny
Appellant’s requested relief. Accordingly, Appellant’s issues are waived; and
would merit no relief in any event. See In re Ullman, supra.Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2021
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