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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN RE: STEPHEN KANE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: STEPHEN KANE AND :
VINCENT KANE :
:
:
:
: No. 1958 EDA 2022
Appeal from the Order Entered July 27, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at CP-23-MD-0000951-2022
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 9, 2023
Stephen J. Kane, acting pro se and purporting to be “Power of Attorney
& Representative,”1 for his son, Vincent Kane (Appellants), appeal from the
order affirming the District Attorney’s refusal to prosecute Appellants’ private
criminal complaint (PCC).
The trial explained:
This proceeding emanates from the [Commonwealth’s]
prosecution of Vincent Kane for procuring “upskirt” and “bathroom
videos[,]” as well as possession of child pornography. After a
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1 This Court has held that an agent’s pro se legal representation of a principal
under a power of attorney is “contrary to the constitution, the laws, and the
public policy of this Commonwealth,” and constitutes the unauthorized
practice of law. Kohlman v. W. Pennsylvania Hosp., 652 A.2d 849, 853
(Pa. Super. 1994). To the extent Stephen Kane appears pro se, we deem him
to be acting only on his own behalf. However, for clarity, we reference
Stephen J. Kane and Vincent Kane collectively as “Appellants.”
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[stipulated2] bench trial, convened on November 28, 2017,
Vincent Kane was found guilty of five counts of invasion of privacy
(photograph, view intimate parts of another person), three counts
of possession of child pornography and two counts of criminal use
of a communications facility. The court imposed a cumulative
sentence of twenty to sixty months’ incarceration[,] followed by
eight years’ probation.
Trial Court Opinion, 9/14/22, at 2 (unnumbered) (footnotes omitted, footnote
added).
Vincent Kane unsuccessfully appealed his convictions. See
Commonwealth v. Kane, 210 A.3d 324 (Pa. Super. 2019), appeal denied,
218 A.3d 856 (Pa. 2019), cert. denied, 140 S.Ct. 2650 (2020).
While Vincent Kane’s appeal before this Court was pending:
Stephen Kane (as “Stephen Kane - Power of Attorney &
Representative for Vincent Kane”) filed a [PCC f]orm seeking the
[Delaware County District Attorney’s (DCDA)] intervention to
prosecute a detective [from] the DCDA’s Criminal Investigation
Division (CID). … The DCDA declined the prosecution on or about
April 3, 2018. Approximately ten days later, [Stephen Kane filed
a p]etition for [r]eview of the DCDA’s decision[.] …
At a hearing convened on May 16, 2018, the court
entertained argument and received evidence. … Shortly
thereafter, the [trial court] issued a careful and comprehensive
analysis of [its] decision rejecting [Appellants’] application.
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2 In return for Vincent Kane’s agreement to proceed with a stipulated bench
trial, the Commonwealth dropped 21 counts of invasion of privacy, 17 counts
of possession of child pornography, and two counts of criminal use of a
communication facility.
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Trial Court Opinion, 9/14/22, at 2-3 (unnumbered) (footnotes omitted).3
In 2020, Vincent Kane filed a petition pursuant to the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Id. at 3 (unnumbered); see
also Commonwealth v. Kane, 290 A.3d 679 (Pa. Super. 2022) (unpublished
memorandum at 3). In his PCRA petition, Vincent Kane alleged “the
Commonwealth withheld a second forensic report, which [it allegedly did not
turn] over until the day of the stipulated trial.” Kane, supra at 5. Vincent
Kane claimed the Commonwealth violated his rights under Brady v.
Maryland, 373 U.S. 83 (1963). Id. The PCRA court held a hearing, after
which it rejected the claim. The PCRA court stated:
[A]ll non-contraband evidence was prepared in a packet and
handed to [Vincent Kane’s counsel at the time,] well ahead of trial
in this matter. … The [PCRA] court finds the testimony of [Vincent
Kane’s subsequent counsel] incredible as it related to the second
forensic report allegedly being sprung on him at the “11th hour.”
Id. at 5-6. On appeal, this Court agreed, concluding Vincent Kane “failed to
establish that evidence was suppressed by the Commonwealth[.]” Id. at 6.
Shortly thereafter, Appellants filed a PCC form
seeking prosecution of five individuals (either as current or former
members of the DCDA’s Office or its affiliated investigative arm,
[CID]) for their supposed involvement in tampering or fabricating
evidence and criminal conspiracy. Ostensibly the witnesses at the
PCRA hearing admitted to withholding exculpatory evidence.
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3Appellants appealed the dismissal of their petition for review. On May 10,
2019, this Court dismissed the appeal for failure to file a brief. Kane v.
Pisani, 1582 EDA 2018 (Pa. Super. filed May 10, 2019) (order).
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Trial Court Opinion, 9/14/22, at 3 (unnumbered).
In a letter dated April 5, 2022, Deputy District Attorney Douglas A.
Rhoads stated that after reviewing the PCC, the proposed criminal charges
“lacked prosecutorial merit.” Letter, 4/5/22, at 1 (unnumbered). On July 27,
2022, the trial court entered an order denying the petition and sustaining
disapproval of the complaint. Appellants filed a timely notice of appeal.
Appellants raise the following issue:
A) Did the trial court err and/or abuse its discretion as a matter
of law in determining that there was a valid legal and policy
reasons [sic] relied upon by the District Attorney and erred in
failing to conduct a de novo review of [Appellants’] petition [for]
review[?]
Appellants’ Brief at 5 (unnecessary capitalization omitted).
PCCs are governed by Rule 506 of the Pennsylvania Rules of Criminal
Procedure, which provides:
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.
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Pa.R.Crim.P. 506(A)-(B).
Our Supreme Court recently altered the standard by which we review
the disapproval of PCCs:
We hold that, when reviewing a prosecutor’s decision disapproving
a private criminal complaint under Rule 506, a court of common
pleas may only overturn that decision if the private
complainant demonstrates that the disapproval decision
amounted to bad faith, occurred due to fraud, or was
unconstitutional. In so holding, we denounce the prior rubric,
where the applicable standard of review depended on the asserted
basis for the prosecutor’s disapproval decision.
In re Ajaj, 288 A.3d 94, 109 (Pa. 2023) (emphasis added).4
Instantly, the District Attorney stated the following reasons for
disapproving Appellants’ PCCs:
1) they lack prosecutorial merit; 2) for policy considerations, and
3) the allegations lack sufficient evidence.
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4 Ajaj was decided on January 19, 2023, during the pendency of this appeal.
When th[e Pennsylvania Supreme] Court issues a ruling that
overrules prior law, [or] expresses a fundamental break from
precedent, upon which litigants may have relied, ... th[e
Supreme] Court announces a new rule of law. One of the
hallmarks of whether th[e Supreme] Court has issued a new rule
of law is if the decision overrules, modifies, or limits any previous
[appellate] opinions .... While retroactive application of a new rule
of law is a matter of judicial discretion usually exercised on a case-
by-case basis, the general rule is that the decision announcing a
new rule of law is applied retroactively so that a party whose case
is pending on direct appeal is entitled to the benefit of the changes
in the law.
In the Interest of L.J., 79 A.3d 1073, 1087 (Pa. 2013) (citations and
quotation marks omitted). While we apply the new rule in the instant matter,
we note that its application made no difference in our disposition, as we would
have affirmed under the prior standard of review.
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….
The allegations raised in the PCCs were duly raised, litigated, and
rejected by the trial court in the PCRA opinion. Accordingly, it is
the view of the Office of District Attorney that the aforementioned
PCCs lack prosecutorial merit and are denied. Additionally, for
policy, PCRAs will not be relitigated when subsequently styled as
PCCs. Finally, the allegations raised by [Appellants] lack sufficient
evidence.
Letter, 4/5/22, at 2 (unnumbered).
The trial court found no abuse of discretion by the District Attorney. The
court stated: “Other than the identification of additional individuals involved
in perpetrating the alleged criminal wrong against Vincent Kane, the legal
allegation underlying this proceeding presents a substantially similar
argument to the one offered previously [in the PCRA petition].” Trial Court
Opinion, 9/14/22, at 4 (unnumbered). The court concluded it was bound by
the PCRA court’s decision, and allowing the PCCs would violate the principles
of collateral estoppel and the coordinate jurisdiction rule. Id. at 4-5
(unnumbered).
Applying the proper standard and scope of appellate review and upon
review of the record, we conclude Appellants did not demonstrate that the
district attorney’s decision to disprove the PCCs was a result of “bad faith,
occurred due to fraud, or was unconstitutional.” Ajaj, supra. The trial court
did not err in finding the PCCs were an attempt to collaterally overrule the
PCRA court’s decision, and to allow them would violate the coordinate
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jurisdiction rule. See Zanes v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003)
(explaining the coordinate jurisdiction rule).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2023
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