Mezzacappa, T. v. Morganelli, J. (memorandum)

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J-S14031-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 TRICIA MEZZACAPPA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. JOHN MORGANELLI, Appellee No. 2538 EDA 2013 Appeal from the Order August 6, 2013 in the Court of Common Pleas of Northampton County Criminal Division at No.: CP-48-MD-0001170-2013 BEFORE: SHOGAN, J., OTT, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED MAY 12, 2014 Appellant, Tricia Mezzacappa, appeals pro se the private criminal complaint she filed against West Easton Borough Council President Kelly Gross. Appellant filed the complaint after her confidential application to obtain a Pennsylvania license to carry a firearm (LTCF) was leaked. We affirm. We take the factual and procedural history of this case from the trial pinion and our independent review of the record. provided with information that Richard J. Orloski, Esq., had anonymously ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S14031-14 1 Appellant application was leaked to the media while she was a Republican candidate confidential information, whic during a weekend when the office was closed, showed Deputy Steward, in the presence of two other deputies, accessing a filing cabinet, removing document. The Commonwealth filed criminal charges against Deputy Steward for violations of sale or transfer of firearms, 18 Pa.C.S.A. § 6111(g)(3.1), and obstructing administration of law or other governmental function, 18 Pa.C.S.A. § 5101. It did not file charges against any other individual in connection with the incident. On June 17, 2013, Appellant filed a private criminal complaint against ____________________________________________ 1 The Commonwealth maintains that Appellant fraudulently listed Mr. Orloski as a reference on her application. (See N.T. Hearing, 7/19/13, at 3; see also -7). -2- J-S14031-14 2 Violation of 18 [Pa.C.S.A. §] 6111 and conspiracy to violate 18 [sic] as she was referred to by [the district attorney]. She is the elected Borough Council President of West Easton and has served in that capacity for 20 years. She explicity [sic] knew exactly what she was doing when getting her filthy corrupt a defendant 30 times in 3 years in public records disputes at the [Office of Open Records] in Harrisburg, PA. She knowingly and willingly initiated a felony with malicious will. I have a 55 lb. box of evidence to prove my case[.] (Private Criminal Complaint, 6/17/13, at 2). Id. o prosecute Ms. Gross.3 ____________________________________________ 2 at 6, 12; see id. at 10-11). Appellant claims that she lost the primary election for city council due to media attention surrounding the leak. (See id. at 11-12). 3 See Pa.R.Crim.P. 506(B)(2) (permitting private criminal complainants to seek judicial review of disapproval of complaint by district attorney). -3- J-S14031-14 On July 19, 2013, the trial court held a hearing4 where the Commonwealth represented that it based its decision not to prosecute Ms. Gross or Appellant, who was also under investigation, on the exercise of prosecutorial discretion and policy considerations, not on a legal evaluation of the case. (See N.T. Hearing, 7/19/13, at 3-4, 7; see also Trial Court Opinion, 8/06/13, at 3, 5). On August 6, 2013, the trial court entered its motion to reconsider the This timely appeal followed.5 Appellant presents the following questions for our review: 1. Did the [c]ourt of [c]ommon [p]leas commit an error of right to [d]ue [p]rocess when it found that [Appellant] failed to timely file her brief, despite the fact that she did file a datestamped copy on August 5, 2013? ____________________________________________ 4 a private criminal complainant is not entitled to an Braman v. Corbett, 19 A.3d 1151, 1160 (Pa. Super. 2011) (citation omitted). the opportunity to have h[er] complaint reviewed in the Court of Common Id. (citation omitted). 5 statement of errors complained of on appeal on September 16, 2013. See Pa.R.A.P. 1925(b). The court entered a Rule 1925(a) opinion on September 19, 2013, in which it referred this Court to its August 6, 2013, opinion for an See Pa.R.A.P. 1925(a). -4- J-S14031-14 2. Did the [c]ourt of [c]ommon [p]leas commit an error of right to [d]ue [p]rocess when it denied [her] the ability to call witnesses to present testimony at her hearing? Did the [c]ourt of [c]ommon [p]leas commit an error of 3. law or abuse its discretion when it determined that there was no averment of bad faith to overcome the allegedly policy-based decision not to prosecute Ms. Kelly Gross, an elected official, despite the facts that (1) [the district attorney] publically stated that a law had been violated by both Ms. Gross and Deputy Steward, (2) [the district attorney] prosecuted Deputy Steward for that crime, and (3) [the district attorney] refused to prosecute Ms. Gross for the same crime? 6 In her issue on appeal, Appellant contends that the trial court erred in decision to deny approval of her private criminal complaint. (See -18). However, in her argument on this issue, Appellant entirely fails to cite to any legal authority to support her claim. (See id.; see also ____________________________________________ 6 Although Appellant raises three separate issues in her statement of the questions involved, the argument section of her brief consists of a single, undivided section in which she advances her third issue, in violation of Pennsylvania Rule of Appellate Procedure 2119(a). See Pa.R.A.P. 2119(a) (requ ; (see also Brief, at 5, 13f, at 1 n.1). We will therefore limit our review to the one issue Appellant addresses in her argument section. See Commonwealth v. Delvalle, 74 A.3d 1081, 1086-87 (Pa. Super. of brief constitutes waiver of issue). -5- J-S14031-14 followed by bald claims th Brief, at 14, 18; see id. at 13-18). In an appellate brief, parties must provide an argument as to each question, which should include a discussion and citation of pertinent authorities. Pa.R.A.P. 2119(a), 42 Pa.C.S.A. This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. To do so places the Court in the conflicting roles of advocate and neutral arbiter. When an appellant fails to develop h[er] issue in an argument and fails to cite any legal authority, the issue is waived. Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008) (en banc) cite to any legal authority in support of argument); see also Pa.R.A.P. 2119(a), (b); Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (holding that pro se status generally confers no special benefit upon an appellant and pro se litigants must comply with procedural rules). T Moreover, even if Appellant had not waived her claim, it would not A private criminal complaint must at the outset set forth a prima facie In re Private Crim. Complaint of Wilson, 879 A.2d 199, 211 (Pa. Super. 2005) (en banc) (citations omitted). district attorney is permitted to exercise sound discretion to refrain from proceeding in a criminal case whenever he, in good faith, thinks that the -6- J-S14031-14 Id. at 212 (citation omitted). It is settled that following the receipt of a petition to criminal complaint, the court must determine whether the complaint is for purely legal reasons or if it is based solely or in disapproval is based wholly on legal considerations, the court employs a de novo review. Where the decision includes or is entirely based on policy considerations, the trial court reviews standard. [Where] the reasons for disapproving of [an a] ., [this Court] evaluate[s] [the] claims under an abuse of discretion standard. In conducting our examination, we are mindful that the private criminal complainant must show that the decision not to prosecute was patently discriminatory, arbitrary or pretextual, and therefore not in the public interest. We will not disturb the of law that were palpably wrong or inapplicable. Braman, supra at 1157-58 (citations and quotation marks omitted). 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 decision amounted to bad faith, fraud or unconstitutionality. The complainant must do more than merely assert the district lawed in these regards. The complainant must show the facts of the case lead only to the conclusion that arbitrary or pretextual, and therefore, not in the public interest. In the absence of such evidence, the trial court cannot presume undisturbed. -7- J-S14031-14 In re Private Crim. Complaints of Rafferty, 969 A.2d 578, 581-82 (Pa. Super. 2009) (footnote and citation omitted). Here, the allegations fail to make out a prima facie case of criminal conduct; the complaint merely contains unsupported claims against Ms. Gross, insulting language to describe her alleged misconduct, and information regarding disputes between Appellant and Ms. Gross unrelated to the instant matter. (See Private Criminal Complaint, 6/17/13, at 1-2); see also Wilson, supra at 211. accusations against Ms. Gross and the district attorney without citation to any legal authority. (See Appellant -18). Further, a review of the record reflects that the Commonwealth, after investigation, exercised its discretion to prosecute only Deputy Steward in connection with the March 2013 incident, and it declined to bring charges against Ms. Gross, the other deputies who were present when Deputy LTCF application, or Appellant, who was also under investigation. (See N.T. Hearing, 7/19/13, at 2-3, 7). After reviewing the record, we conclude that Appellant has failed to discriminatory, arbitrary or pretextual, and therefore, not in the public Rafferty, supra at 582. Accordingly, even if the issue were not waived, we would hold that the trial court did not abuse its discretion in -8- J-S14031-14 criminal complaint. See Braman, supra at 1158. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/12/2014 -9-

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