Petition for Writ of Certiorari — Cheppa v. Pennsylvania

Supreme Court brief1993

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43-74 | JUL 0 9 1993

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Ju the Supreme Court

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United States of America

OCTOBER TERM, 1993

JOHN CHEPPA

Appellant

PENNSYLVANIA

Appellee

PETITION FOR WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF PENNSYLVANIA

Middle District

John Cheppa

717 Catherine Drive

Harrisburg, Penna.

17112- 3618

717-545-5744

QUESTIONS FOR SUPREME COURT REVIEW

1. Whether the Commonwealth of Pennsylvania acted

Unconstitutionally, unjustly, and illegally with the

Executive branch of government assuming the judicial

function of prosecutorial discretion over a citizen-victim’s

private Criminal Complaint regarding a prima facie case

of perjury and false swearing against a Public Official.

PARTIES TO THE CASE

The caption of this case in the State Courts was some-

what misleading, for it was listed there as COMMON-

WEALTH OF PENNSYLVANIA V. STANLEY KITNER.

However, the true parties are:

John Cheppa, Appellant

7176 Catherine Drive,

Harrisburg,

Pennsylvania 17112-3618,

Petitioner.

And,

Richard A. Lewis, Appellee

Dauphin County District Attorney,

Front and Market Streets,

Harrisburg, Pennsylvania 17101,

Respondent.

lll

TABLE OF CONTENTS

PETITION

CONTENTS PAGE

Questions i

List of the Parties il

Table of Contents iil

Table of Authorities iv

Reference to Opinions in the case 1

Statement of Jurisdiction 2

Constitutional Provisions & Statutes 2

Statement of the Case

History 2

Procedure in the Courts below 4

Argument 6

Reasons for Review 6

APPENDICES

Index to Appendices al

Appendices al

Filed Separately

Affidavit of Service

TABLE OF AUTHORITIES

COURT DECISIONS

Federal:

Vv.

212 U.S. 322, 29 5. Ct. 370.

sense tilbieiaatidiandsieadieianainsidatadnaanmaiaainiebalainnsainaeecaiid a65, a71, a78

Hill v. Texas, 316 U.S. 400.

a nbcdishissintieiadliabaitpiibiidhiddiaiasanieninitinlenliiniuuasidinnnnnnanietinlael a67, a73, a81

Linds RS& = Richard D

and Texas at al. 410, U.S. 614, 619,

93 S.Ct. 1146, 1149, 35 L Ed. 2d 536

(1973). Majority Opinion.

li a a ol a q

Id. Dissenting Opinion

waitialaahagiaaededlbeaadiaieghidiatsbehdidtadeisitasasatgeicinsensoelaabuicmaiceecanasaleblacbenaient 10, 21

iv , 329 U.S. 459.

eile itaiisisdatadeubansnnbcchomeit dulsnideabundiuananied a67, a73, a8l

Louisville Gas & EF) —

Coleman, 277 U.S. 32.

scaicaseaabla deiiinaaeble ipbeaetaiatecsbd avalide abeastlaiattaaddiminssaiiaaaeneaiueaal a67, a72, a80

Mountain Timber Co. v. Washington, 243 U.S. 219 37, Ct.

260.

si chsebnscniiicaiack basin esliveeiinncnceionlabiadamigladeiaiadebbuainuaae a66, a71, a79

U.S. v. Cruikshank, 92 U.S. 542.

Re aE tre ely MONE Ee RN EONS HE a67, a72, a80

United States v. Shober,

469 KR. Supp. BOS (D.C. Pa. 1979) ...sccsccsesersnosvescsssssecnses a82

State: Vv

Ww vanla V.

Pa. 565 A.2d

746 (1989). Majority Opinion.

Ww v. Li wl

17 A.2d 719, 143 Pa. Super. 75 (1941). ...---eeeeeeeeeeereeees a83

Commonwealth of Pennsylvania v.

McHale, 97, Pa. 397 (1881).

Commonwealth v. Stanley Kitner

Dauphin County No. 12 M.D. 1991.

Commonwealth v. Stanley Kitner

Dauphin County No. 455 M.D. 1991.

Commonwealth ex rel. Spector v.

Bauer, 437 Pa. 37, 261,A 2d 537 (1970).

In ew: Charge to grand jury,

97 PL. 115 (Pa. 0. & T. 1949)....ccccrrereeeeeeseeeteesesseees a82

County:

w v. Vani ,

AB49 S 1990 ..........cceccsscccccrccccccccerssceeccneeseecnansssecsscsessoaees a83

John Cheppa v. West Hanover

Township Dauphin County

No. 3171 S 1987

SIT TG sataleciiacahialkns kdtmunannioniherenisieienninhaebeheabnenennnannceansindte 3

W. Vv wnship v.

Dauphin County No. 4314 E. D. 1973

aaa cst bili Ulbelacananiieidcaneiinn dbkeieundsmlaiabkasasnnaesbsalannel 2,3

District Justice:

John Cheppa v. West Hanover

Township District Justice No.

TA 87-427

SITTIN ss disc sitinasniesndidpnacioeontn oh Aagaoaacaiic nassagedasactnonemnnaaaeieninnaal 3

STATUTES

U.S. Constitutional Bill of Rights.

Nibdieiieaicallateaaiicacrerepahndcecescindanetncuaantumnbaaiatiaannanebtns 16, 20, 21, 22, 23

U.S. Constitutional Amendment V.

iiaeiashe oes ciduainaeontshaseeedcspnbiisiatabdasuindselansiaidte atlas tie 2, 5, 6, 18, 20, 21

U.S. Constitutional Amendment XVII

Si asianilienesasaieebaisiieiadiieabaiiien 2, 5, 6, 7, 11, 13, 18, 20, 21, 22, 23

Separation of Powers Doctrine

Sica ab laelibensiss teed atpeldinaalalsndibblacipuads tokasaia dae 12, 15, 23

Bs Pete: WI LINED sssinscrnnctnaneneiensiachbuiiestibnioanbonammaeaiiauaa aaiuenine 2

Be ROR OE I ia vcsis wsinstdcs scantaccenipaneneiintennadeinniand 12

BEET TY TI i nxss/ecci bocssinenccoiscohie soennehaeananianaesadeiasseapeniael 13

is en I Bis eicnicsicin nintsnionenilaanenennaanena 7, am oe

18 Pa. C.S.A. SS 4903..........ccecececeseeeesesseeceeeeeeeneeees 7, 15, 21

42 Pa. C.S.A. ss 133

ss setiehigaladaabedenasesneniabniasenennaneen 1, 4, 6, 12, 13, 15, 16

AZ Pa. C.S.A. SS 742.....cccssssssreeeeessreresessneeesennaasesesereeeenees 2

Act of March 12, 1866,

PL. 85, S81... .....ccccecscocccsrssscsccccecssnceceesssssscsscoessessonencrsers 13

Act of July 9, 1976,

PLL. 586, No. 142, SS 2... ..esecsscesrecrecseereeensennsennessnsenerenecenes 6

RULES OF COURT

Pa. R. Crim. P. 9022..... ..ccccsssssssseersreecesseeseeeeesesseeseesenenenes 19

Pa. R. Crim. P. 90238... ..cccccsssssseseeeceeeeeeeeeseeeeeeeeeennanennneees 19

Pa. R. Appl. P. 1112 (8)... ...ssssesesssessesesersseesensssenennenennenensnes 2

Pa. R Proff. Con. 3.5 ......ccseessssceeeeesereceeeesenneneeeeseneenennneees 19

OTHER AUTHORITIES

Cardenas, Juan, The Crime Victim the Prosecutorial

Proses, 9 Harv. J.L. & Pub. Pol’y 357

(¢ (:):':) een oa 12

Crosskey, William Winslow,

Politics and the Constitution, in the

History of the United States, (Chicago Ill., University of

Chicago Press (1953).

London, N.W. 1, England, Cambridge

University Press (1953).

viii

Curtis, Michael Kent, No State

Shall Abridge the Fourteenth

Amendment and the Bill of Rights,

(Durham, North Carolina: Duke

University Press, 1986) pp.

SE EE OA eidasieehadeinedeastisebilntnaeniannccsuesenivhtsnsecosexsinescersssiseesee 22

Penn, William, The Excellent

Privil ‘Lil iP

Reing the Rirthriaht of Free B

Subjects of England, Philadelphia,

William Bradford, pp. vii and viii

SE siiinicieclideataliaiileteaninncibianaaibinetanaiatncennevaiborrrscisssensutes 18, 20

Private Prosecution: A remedy for

‘atri - “

Inaction, 65 Yale L.J. 209 (1958S). ................ccsccssscecssesees 13

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

JOHN CHEPPA,

Appellant

PENNSYLVANIA,

Appellee

OPINIONS BELOW

Via Rule 133 of the Pa. R.Crim.P (Appn. M, a27) two different

Private Criminal Complaints (Appn. H, a20 & Appn. G, a16) of

perjury and false swearing by a public official were given to the

State Attorney and he denied both alleging a lack of materiality

(Appn. F, al5 & Appn. H, a20). The petitions were then taken to

the court where they were both denied (Appn. E, a10 & Appn. D,

a9) there was no Opinion to the second Order. In neither of these

Complaints did the Court allow an evidencing hearing although

we requested such a hearing in Exceptions to the first case, the

Brief to those Exceptions, the Memorandum to the second case

and the Brief to the Appellate Court (Appn. TT, a131 - a134).

Both Complaints were consolidated and denied with the Order

and Opinion being Appn. C, a4. In the final Opinion the Common

Pleas found that the defendant had been lying in court for years

but alleged that the case was unimportant and the D.A.’s

discretion must not be disturbed. The Court also erroneously

determined that this was a case concerning a private matter

between the Accused and the Affiant. The Superior Court also

alleged that the D.A’s discretion must not be disturbed (Appn.

B, a2). The Supreme Court of Pa. refused the hear the case

(Appn. A, al).

- JURISDICTION

Rising in the Common Pleas as challenge to the State Attorney

in refusing to prosecute 2 prima facie cases of perjury against a

government official, the Superior Court had Jurisdiction under 42

Pa. C.S.A. ss742, (Appn. UU, al135). The Pa. Supreme Court had

Jurisdiction under Rule 1112 (a) of the Pa. Rules of Appellate

Procedure (Appn. UU, al35). Jurisdiction of the U.S. Supreme

Court is Title 28, U.S.C. ss 1257 (Appn. J, a23). The lst Order was

entered on April 23, 1991, the 2nd was entered on June 26, 1991,

the final was on July 19, 1991, and placed in the Superior Court

of Pa. on August 13, 1991; its Order was filed on May 28, 1992. On

June 29, 1991, the issue was taken to the Supreme Court of Pa.

and its Order was handed down on February 11, 1993 and mailed

on or after February 18, 1993. Notice of Appeal was February 17,

1993 (Appn. MM, a119 & al20) and Application for additional

time for this Petition was mailed on March 30, 1993 (Appn. NN,

al21-a125). On April 7 the time for filing was extended until July

11, 1993 (Appn. PP, a126).

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Supreme Court Jurisdiction, Title 28, U.S.C. ss

1257 is Appn. J, a23. Amendment V to the U.S. Constitution is

Appn. K, a24. Amendment XIV is found in Appn. L, a25.

STATEMENT OF THE CASE HISTORY

Arising from a case of conspiracy by the Government of West

Hanover Twp. in Dauphin County, Pa. against Cheppa, the Public

Officials of said Township sought to deprive him of full use and

enjoyment of his home by removing the dirt from his front yard;

the Twp. Government needed it to fill a depression behind the

municipal building and create a parking lot. In 1971, the Govern-

ment granted permission to Cheppa to fill his front yard providing

he dig a ditch in front. After digging the ditch and filling the yard

the government came to take the dirt. They were stopped by

Cheppa’s attorney so they decided to take the dirt off the right-of-

way in front of the home. Cheppa objected and the government

agreed that it was Cheppa’s dirt and placed it on the Cheppa

property at a location specified by Cheppa. The Township still

wanted Cheppa’s dirt and filed a case to 4314 E.D. 1983. Heard on

satiate anemia

February 27, 1984, three public officials of said Twp. did know-

ingly and willingly commit the acts of perjury and false swearing.

The acts of perjury and false swearing by the Government were

brought to the D.A. but he refused to prosecute and the issue was

dropped. The Government was successful for although it did not

remove the front yard, after hearing the case the Court Ordered

agreement on Public Storm Drains which was reached and

molded into an Order which specified that Cheppa would pur-

chase the Pipe and the Government would install it covering it

with their own soil. The Twp. refused to install the pipe but under

threat by the Court of being held in contempt, the pipe was

installed about three months later.

After installation the Government used $2500.00 worth of

Cheppa’s soil to cover the pipe, and left a large area unfilled. Legal

action was brought and docketed to No. 4314 E.D. wherein

Cheppa sought to recover the soil (taken without just compen-

sation) to have the remaining pipe filled over, and numerous other

provisions. Mr. Kitner, in his capacity as Township Supervisor

and Foreman of Roads testified under oath on behalf of the

township as Public Official Kitner and not as Citizen Kitner, in

this and all subsequent cases, a total of four bench trials.

On August 26, 1986 Kitner testified that he: “(U]sed the soil of

Cheppa to fill over the Pipe. The Court stated that a new case

would have to be heard for recovery of the stolen soil. A new case

docketed to TA 87 427 and heard by the District Justice on July

21, 1987, wherein Kitner testified that he, “did not use Cheppa’s

soil; it was all Twp. soil. The Government, based upon the

perjurious testimony, prevailed. Another case docketed to No.

3171S 1987 was filed in the Common Pleas and heard by a Board

of Arbitrators on March 28, 1988, where Kitner testified that, no

soil was taken from the Cheppa property, it was all Twp. soil. The

Twp. was Ordered to repay John Cheppa the value of the soil.

The Twp. Government took the matter to a Judge who heard it

on July 13, 1988. Kitner testified that on August 5, under very

heavy rain he found the street in front of the Cheppa property

flooded, and to alleviate the flooding he removed the soil from the

right-of-way reciting applicable law, and stored it on the Cheppa

property then used it later, therefore, none of the soil used by the

township was Cheppa’s. The problem with this testimony was

that there was no rain and when Kitner removed the soil from the

R-O-W and stored it on the Cheppa property he did so because he

agreed that it was Cheppa’s soil.

This history shows the Township’s overt conspiracy, for it was

a group decision to go to court 5 times with perjury to claim

Cheppa’s private property without just compensation. Bringing

allegations of conspiracy was contemplated but it was determined

that the voluminous documents required to evidence such a

conspiracy would loose the court, therefor, charges of perjury and

false swearing by the last conspirator were brought to the D.A.

The D.A. refused to investigate those allegations. Cheppa made

an investigation and wrote a report. The D.A. (Appn. R, a35)

replied that the false testimony used by Kitner was not material.

PROCEDURE IN THE COURTS BELOW

An attorney was retained and by Rule of Crim. P. No. 133 (Appn.

M, a27) filed a lst Complaint for Private Prosecution on Novem-

ber 20, 1990 which was docketed to 12 M.D. 1991 (Appn. H, a20).

As noted on the face of that petition, the D.A.’s only reason for

denying the Pleading was: “Portions of Defendants testimony

that is in controversy, even if knowingly false, was not material

to the outcome of proceedings.” On January 4, 1991, the issue was

taken to the Court of Common Pleas where a Complaint, an

Affidavit and Memorandum, was filed and in paragraphs 8 and 9,

of the Complaint, the U.S. Constitution was raised for the first

time (Appn. G, a32). The D.A. failed to acknowledge the Consti-

tutional issue (Appn. R, 33 & 34).

In that document, the D.A. (when referring to his discretion)

was referring to the fact that he has discretion to evaluate the

evidence only, and he was not referring to prosecutorial discre-

tion, for if he had been referring to prosecutorial discretion he

would have so written. The Common Pleas asked the D.A. for a

Memorandum on February 26, 1991 (Appn. SS, a130). That

Memorandum was filed ex parte, thus, establishing ex parte

communications with the Court. The Court’s first Opinion (Ap-

pendix E, p. al3) suggest that it never even saw or considered the

Affiant’s Complaint or the evidence of a prima facie case (Appn.

T, 37-63). The Court states that the Affiant failed to allege that

Kitner knew he was lying and that the Affiant failed to supply

whether data (Appn. E at al3) Appn. H at a21. a21 shows that the

Affiant did make that allegation and Appn. T11, a59 shows that

such data was supplied and that it did not rain on August 5, 1983

during the time in question. Any information that the D.A. may

have supplied to the contrary was false. Exceptions were timely

filed, and in paragraphs 9 and 10 the Constitutional Amendments

were again voiced (Appn. U, a64) and in the brief to exceptions the

Affiant elaborated upon the 5th and 14th amendments (Appn. V,

a65 through a68). A 2nd Complaint of 2 new counts of perjury and

3 new counts of false swearing were brought to the D.A. (Appn. G,

al6 - al9). The D.A. denied the pleading on May 13, 1991, (Appn.

F, al5) alleging that the 2nd Complaint was an attempt to

circumvent the Order dismissing the 1st Complaint and that the

statements by Kitner were not material. It is important that the

D.A. did not give “prosecutorial discretion” as a reason for dismiss-

ing the complaints.

The 2nd case was also placed before the Court on June 9, 1991,

as Case No. 455 M.D. 1991, and again in paragraphs 9 and 10

(Appn. W, a69) the U.S. Constitution was raised. In the Affiant’s

Memorandum filed with that case the 5th and 14th Amendments

were recited (Appn. X, a70 - a75). On June 26, 1991, the Court

denied that 2nd Petition. Exceptions were taken on July 1, 1991,

and in those Exceptions, paragraphs 9 and 10, (Appn. Y, a76) the

U.S. Constitution was again raised. In the brief to the Exceptions

of the 2nd case (Appn. Z, a77) the Constitution was again raised.

The Exceptions of the 1st case (12 M.D. 1991) and the exceptions

of the 2nd case (455 M.D. 1991) were consolidated and argued

together where the 5th and 14th Amendments were voiced for a

final time before the Common Pleas. The D.A. filed no Answer or

Memorandum nor any other papers in the 2nd case, nor did he

appear in court to argue the exceptions, thereby, giving no other

reason for denying the 2nd Complaint for Private Prosecution

other than his initial letter which denied that pleading on the

grounds of a lack Materiality and a fear of circumventing the Ist

Order of Court.

In the final Opinion (Appn. C, a4 - a8) the important matters

were, 1 The Court did not pass upon the 5th or 14th Amendment

of the U.S. Constitution. 2 The Court did not find that Kitner’s

perjury was not material. 3 The Court did not find that there

wasn’t enough evidence to warrant prosecution. 4 The Court did

find that Kitner had been giving conflicting testimony about the

same series of events in different legal forms [forums] over the

course of years (Appn. C at a8). 5 The Court erroneously reasoned

that the D.A.’s discretion must not be disturbed (Appn. C, a5). 6

The Court alleged, that the case was not important enough to

warrant prosecution (Appn. C, a8).

Nevertheless, in the Act of July 9, 1976 P.L. 586, No. 142, ss 2,

as amended, the Pennsylvania legislature believed that perjury

by a Public Official was an extremely important case because it

extended the Statute of Limitations from 5 years to 13 years in

such cases (Appendix CC, pp. a87 & a88).

The matter was placed before the State Superior Court and in

questions 8 and 9 the 14th and 5th Amendments to the U.S.

Constitution were raised (Appn. AA, a78 to a83). The Superior

Court denied the relief sought and did not rule on the Con-

stitutional issues, therefore, an application to the Pennsylvania

State Supreme Court was made, and the U.S. Constitution was

again raised (Appn. BB, a84 - a86). That Court denied the appli-

cation to hear the case.

ARGUMENT

Incorporated herein in support of this argument are Petitioner's

Appendices with all of the Argument and Citations found there

being as if fully recited here. Because those Arguments (valid as

they are) were used in the courts below and are, assigned as

Appendices to this Petition, your Honorable Court will agree that

further duplication of printing is unnecessary here.

REASONS FOR REVIEW

* The D.A. did not plead Prosecutorial discretion. * Rule 133 of

the Pa. R.Crim.P does not give the D.A. Prosecutorial dis-cretion.

* The Penn. Perjury Law precluded the D.A. from using

prosecutorial discretion to determine a question of materiality. *

The Constitutional separation of powers doctrine precludes the

D.A. from determining a question of law. * The 5th Amendment

grants the power to indite or not to indite only to a grand jury. *

The 14th Amendment grants equal protection and due process to

this Appellant Citizen.

CONSTITUTIONAL ISSUES RAISED

Unconstitutionality of D.A.’s decision is raised in the lst Com-

plaint to Court (Appn. Q, p. a32) lst Exceptions (Appn. U, p. a64)

Brief to 1st Exceptions (Appn. V, p. a65 - a68) 2nd Complaint

(Appn. W, p. a69) 2nd Memorandum (Appn. X, p. a70 - a75) 2nd

Exceptions (Appn. Y, p. a76) Brief to 2nd Exceptions (Appn. Z, p.

a77) and argued at the hearing of Exceptions. In the Brief to the

Superior Court (Appn. AA, pp. a78 - a83) in the Application to the

Supreme Court (Appn. BB, pp. a84 -a85) along with the separation

of powers doctrine (Appn. LL, p. al17 & a118).

EVIDENCE, OF PRIMA FACIE CASE

Appn. P, a29, is the Penna. perjury and false swearing Act which

states that One is guilty of perjury if he knowingly makes a false

statement that did or could have affected the course or outcome of

a case, that a person is guilty of false swearing if he knowingly

makes a false statement that could not have affected the course or

outcome of a case, and MATERIALITY is a question of LAW.

Appn.T, a37 to a63 is the evidence of a prima facie case of perjury

and false swearing. This is not the entire volume of evidence offered

below but it is more than enough to prove a prima facie case of

perjury and false swearing against the public official.

A witness states Mr. Kitner acknowledged that the soil removed

from the right-of-way was the property of Cheppa (Appn. T1, a37)

Kitner testified that the soil used to backfill over the storm drain

was the private property of Cheppa (Appn. T2, a38 & a39) another

witness stated that Kitner testified that the same soil did not

belong to Cheppa but belonged to the Township (Appn. T5, a44) and

another witness stated that Kitner testified the same soil did not

belong to Cheppa but belonged to the Township (Appn. T6, a45).

On pages 43 - 47, 50 - 54, and 57 of the transcript of July 13, 1988,

Kitner testified in direct examination, that he was called to the

property of Cheppa because of flooding and heavy rain on August

5, 1983, but due to that heavy rain and his duty under the law, he

was forced to use the Cheppa property to stockpile the township

dirt which he removed from the right-of-way and used later to cover

the storm drain pipe (Appn. T7, a46 - a53). His lawyer in opening

and closing statements offers the perjury that Kitner had just

finished elaborating upon (Appn.T8, a54-a55).

A witness states that there was no rain at the Cheppa property

before Kitner came to clean the R.O.W. or while he did clean it

(Appn. T9, a56). A second witness stated that there was no rain or

flooding at the Cheppa property and that Kitner arrived there at

11:40 AM. (Appn. T10, a57 & a58) a member of Kitner’s Road

Crew stated that the road-crew left the Cheppa property just prior

to their work day ending at 3:30 P.M. (Appn. T12, a60). The daily

work sheet from NOAA states that there was no rain either before

Kitner came to the Cheppa property or while he was there, or

within several hours after he left the property. The times listed

there are given in Standard Time while we were on Daylight

Savings Time (Appendix TIl, p. a59).

In the transcript of Kitner’s testimony it was found that the only

things he lied about was the rain; everything else was true and

accurate, and listed in (Appn. T13, a61 & a62). Taken to acriminal

psychiatrist who studied the evidence, stated that Kitner suffered

from no loss of memory when he gave his false testimony concern-

ing the rain of August 5, 1983 or his reasons for coming to the

Cheppa property and removing the dirt from the R.O.W. (Appn.

T14, p. a63).

Kitner testifies that he had the original copy of acontract (which

would tell him where to get the soil to backfill over the storm drain)

and that he studied that contract and voted as township supervi-

sor to approve that contract (Appn. T3, a40 & a41) Kitner also

testified that he did not have the contract (Appn. T4, a42 & a43).

Kitner’s only objective before the district justice was to deceive.

Kitner accomplished that with his perjurus testimony. A new case

was filed where Kitner told the same story, and since his perjury

was believed by the district justice and changed the outcome of

that case, it could have also changed the outcome before the

arbitrators. The township appealed the matter and it was heard

by a judge where Kitner invented the heavy rain and flooding but

due to he heavy rain he could not move the dirt to the township

stockpile and, by Law was forced to stockpile it on the Cheppa

property. Under the law, Kitner did have the right to use the

Cheppa land for storage in an emergency condition such as public

flooding but there was no rain or flooding.

In its final Opinion to this case, the Common Pleas found that

Kitner had been,

“..§iving conflicting testimony about the same series of events in

different legal forms [forums] over the course of years.” (Appn. C,

a8).

PETITIONER’S STANDING

In a dissenting Opinion to Benz (App. FF, al03 - a105) Justice

Papadakos of the Pa. Supreme Court has stated that one such as

I does not have standing and alleged support for his view by the

case of Linda R.S. v. Richard D. and Texas at al (Appn. GG, al0¢

-all0).

Mr. Justice Marshall, writing for the majority in the Linda R.S

case stated repeatedly that Linda R.S. did not have standing

because she was not the victim. Justice Marshall wrote, “.. broad-

ening the categories of injury that may be alleged in support of

standing is a different matter from abandoning the requirement

that the party seeking review must himself have suffered an

injury’...federal plaintiffs must allege some threatened or actual

injury resulting from the putatively illegal action before a federal

court may assume jurisdiction.

[4-6] Applying this test to the facts of this case, we hold that, in

the unique context of a challenge to a criminal statute, appellant

has failed to allege a sufficient nexus between her injury and the

government action which she attacks..” (Appn. GG at p. a108).

What Justice Marshall is saying is that Linda R.S. was not the

injured party, rather, her child was.

“The party who invokes [judicial] power most be able to show that

he has sustained or is immediately in danger of sustaining some

direct injury as the result of [a statute’s] enforcement.” (Appn GG,

al08 & al09).

Unlike the Linda R.S. case, the case be-fore you now has alleged

that this petitioner is the victim of perjury and false swearing by

a public official. In an investigative report written by this peti-

tioner and given to the D.A. then later passed through the courts

of Penna. this petitioner wrote:

“In 1984, allegations of perjury were made to the D.A. of Dauphin

County Pa. against three employees of the West Hanover Town-

ship governing body, The allegations were not investigated and

their pursuit was dropped. In 1988 the fourth incident of perjury

by a member of the West Hanover Township government sur-

faced...”

These allegations show not just perjury by the West Hanover

Township government, but truly, a conspiracy. A conviction on

charges of perjury would have the same affect as a conviction on

charges of conspiracy, that is, to have the West Hanover Township

government correct its methods of treating its citizens.

In addition to the illness which resulted from the perjury and

false swearing and recited by the judge of the common pleas

(Appn. C, a7) this petitioner presented a list of monetary damages

to the D.A. and the courts below which show a factual loss of

$2,910.00 (after repayment for the stolen soil) as a direct result of

this public official’s taking and using a citizens private property

without just compensation, then committing perjury in the courts

to protect the theft.

Your petitioner is the victim of the crimes of perjury by a public

official and as Mr. Justice White, joined by Mr. Justice Douglas

stated in their dissenting Opinion to the Linda R.S. “The court

notes, as it must, that the father of a legitimate child, if prosecuted

under Art 602, could properly raise the statute’s under inclusive-

ness as an affirmative defense... Presumably, that same father

would have standing to affirmatively seek to enjoin enforcement

of the statute against him... The question then becomes simply:

why should only an actual or potential criminal defendant have a

recognizable interest in attacking this allegedly discriminatory

statute and not the appellant and her class? They are not, after all,

in the position of members of the public at large who wish an

enlargement of State criminal laws...” (Appn. HH, al111 - al13).

Therefore, if we follow the recommendations of the dissenting

Penna. Supreme Court Justice Papadakos in the Benz case where

he paints Linda R.S., “a citizen lacks standing to contest the policy

of the prosecuting attorney when he himself is neither prosecuted

nor threatened with prosecution...” (Appn. FF, al104). Presum-

ably, then, the accused would have standing to enjoin enforcement

of the rule against him for underinclusiveness, the question, then,

becomes simply: why should only a criminal have a recognizable

interest in attacking an allegedly discriminatory rule or policy and

not the victim? Won’t that in itself be seen as discriminatory and

unequal protection of the laws, forbidden by the 14th Amendment.

The State’s pubiic prosecutor's duty in faithfully discharging the

responsibilities of that Office is to promote and protect the criminal

laws of the State on behalf of the inhabitants of the State, not on

behalf of the State, for without the inhabitants, the State is an

empty and hollow entity, in no need of protection of the law. And

when some inhabitant of the State falls victim to crime, it is the

duty of the public prosecutor to take up the cause of the law, and

to promote justice for the victim-citizen of the State. Additionally,

there is legislative reference to the practice of Private Prosecution,

(Appn. QQ, al27 and RR, al28 & al29) and the D.A. has not raised

any question of standing in the lower court, failing to preserve such

issue for appeal. Trial Court had much to say ineffort to belittle this

case. It implies that this is an extension of a civil litigation from

1983, but failed to see this is a Criminal suit from as late as 1988.

The Court stated, “Thus, the matter would seem, to the law’s

‘reasonable and prudent person’ to be at anend.” (Appn. C, a7). The

“reasonable and prudent person” is a civil standard which the

Court has applied as a criminal test, thereby, proving it did not

understand the case which resulted in the denial of equal protec-

tion of the law and due process of law. A hearing on the matter

would have benefited the Court injustly determining the nature of

this case but the Court denied a hearing.

The Court seems to be of the opinion that because this petitioner

ultimately was paid the value of the soil taken without just

compensation by the government, the resulting harm to the Affiant

should be settled through some civil litigation. The Court fails to

see that the Affiant’s being paid the value of the soil does not negate

the crime of perjury. The Court has failed to understand that this

was not a case brought against a citizen, it was a case brought

against a public official; against the government for the hideous

crimes of perjury and false swearing.

The Trial Court states: ..these... prosecutions have no place in

the county’s extended justice system...” (Appn. C, a6). However, I

would think that this cri ived j iracy;

The Court has failed to see that failure to prosecute public

officials for their perjury has served to perpetuate the criminal

behavior on the part of the government. And the Court has failed

to under stand that being paid the value of the soil in the face of

perjury by the government does not “promote the general welfare”

nor “establish justice”, for the value of all of the soil in the County

could never equal the justice and privilege of liberty granted to

this individual by the Constitution. Of these Criminal Com-

plaints, the Trial Court has stated, “...the legislature was wise in

providing that...the attorney for the Commonwealth must ap-

prove or disapprove a private criminal complaint and the courts

who have construed this rule provided that the district attorney

shall make his decision in the exercise of his prosecutorial discre-

tion...” (Appn. C, a8). The judge is wrong. What the courts have

said is fthe D.A. raised prosecutorial discretion in the lower court

it would hold on appeal” (Appn. DD a95) but the D.A. never did

raise that in the lower court and the legislature has never given

the D.A. prosecutorial discretion. There is no Penna. law which

gives the D.A. prosecutorial discretion, for to do so, is repugnant

to the separation of powers doctrine of the Constitution;

prosecutorial discretion in the Office of the D.A. places judicial

authority in the hands of the Executive branch of government and

the perjury law itself states that the determination of materiality

is a judicial function not for executive interpretation (Appn. P,

a29) and that issue was raised in the Supreme Court (Appn. LL,

all7 & al18).

Trial Court alluding to the courts giving prosecutorial discretion

to the D.A. when it is raised at the trial court level is correct, but

this is not Rule by Law, it is, Law by Rule. And not by written rule,

but by erroneous judicial interpretation of a Criminal Rule of

Procedure.

This case was brought to the Court by Rule 133 b2 of the Pa R.

Crim. P. (Appn. M, a27). The provisions of Rule 133 are not new,

it is a practice that has existed in England and Other countries for

hundreds of years prior to the establishment of our own Federal

System and subsequent Constitutional systems of government.

What is new, and unconstitutional, is bestowing prosecutorial

discretion upon the D.A.

It was not until the 18th century that a system of public

prosecution began to emerge in America, see: The Crime Victimin

the Prosecutorial Proses 9 Harv. J.L. & Pub. Pol’y 357 (1986).

Although such a system of public prosecution began to develop to

enable the victims of crime in pursuit of justice, the several States

maintained an avenue for private individuals to seek justice either

by assisting the public prosecutor or going forward and initiating

criminal proceedings himself: See Private Prosecution: A remedy

for District Attorney’s Unwarranted Inaction, 65 Yale L.J. 209

(1955). The first public official in Pennsylvania given the role of

public prosecutor was the Attorney General, an arm of the Execu-

tive branch of government. Subsequently, in 1850, the Offices of

Deputy Attorney Generals were created through legislation and

these were followed by current legislation (16 P.S. ss 1401 et seq.)

providing for a local D.A. to prosecute criminal cases on behalf of

the public (see Commonwealth ex rel. Spector v. Bauer, 437 Pa. 37,

261, A 2d 537 (1970). Notwithstanding, the advancement of a

public prosecutor, Pennsylvanians have always retained the right

to private prosecution, not only through Rule 133, but through

legislative enactment (16 P.S. ss 1409. Appn. QQ, a127 ). That

provision is a follow up to the Act of March 12, 1866, P.L. 85, ssl

(Appn. RR, al128 & 129) which provides for a private individual to

bring criminal proceedings, or replace a D.A. when he “...shall

neglect or refuse..” to discharge his duties. The Constitutionality of

that provision was upheld in the case of Commonwealth v. McHale,

97, Pa. 397 (1881) where the Supreme Court of Penna. ruled that

a private individual can act in the D.A’s stead.

The point here, is that the D.A. has never had prosecutorial

discretion in Pa. regarding a prima facie case to the extent that he

may deny the equal protection of the laws to any victim of crime.

More recently, in the case of Benz (Appn. EE, a99 - a102) Justice

Larsen has stated that Rule 133 of the Pa. R. Crim. P. does not give

the D.A. prosecutorial discretion: “Rule 133 does not contemplate

that criminal proceedings initiated by private complaint will be

subject to the ‘policy’ and discretion of the D.A.” (Appn. EE, a100).

Therefore, the D.A, in faithful discharge of his duties, had no

alternative but to “evaluate the responsibility of the charge con-

tained in the complaint ...” (Appn. EE, a101) as raised by Justice

Larsen, and approve the complaint. To do otherwise is a violation

of the U.S. Constitution and specifically repugnant to the 14th

Amendment and the “equal Protection’ and “due process” clauses.

In the Benz case, the Constitutional issue of separation of powers

| cpiecninaaeiataeaaiadaiaatiae edie

between the executive and judicial branches of govern ment was

not raised in the Court of First Instance but was raised on appeal

(Appn. DD, a94 & a95). The D.A. of Allegheny Co. joined by the

Amicus Curiae presented policy reasons, and prosecutorial discre-

tion based on the Constitutional issue of separation of powers as

the cause for refusing to prosecute Officer Benz. The Penna.

Supreme Court stated that if policy reasons had been raised in the

court below, it would hold on appeal, but since it had not been

raised below, the question was waved on appeal (Appn. DD, a95).

On November 1, 1989, the majority of the Penna. Supreme

Court ruled in the Benz, where a prima facie criminal case was

brought to a D.A. by private criminal complaint, the D.A. could not

refuse to prosecute on the grounds of a lack of evidence (Appn. DD,

a95). In the present case, the petitioner brought 2 prima facie

cases to the D.A. and he refused to prosecute on the grounds of a

lack of materiality (Appn, F, .al5 & H, a20) which he supported by

an alleged lack of evidence: “The information that he [Mr. Cheppa]

has provided to the D.A.’s Office does not establish, beyond a

reasonable doubt, criminal charges against Mr. Kitner... The D.A.

has reviewed the material provided to this Office by Mr. Cheppa.

The falsification that Mr. Cheppa is claiming by Mr. Kitner, does

not affect the material out come or the course of the proceedings...”

(Appn. R, a34).

When the D.A. referred to his, “discretion to approve or disap-

prove private criminal complaints” he was referring to discretion

to evaluate the evidence and not separation of powers or

prosecutorial discretion, or some other alleged policy.

The test of this statement an be found on page 9 of the D.A.’s

brief to the State Superior Court reprinted here in Appn. KK,

all6. There he first refers to prosecutorial discretion as a policy

reason, saying that it was raised in a letter denying the 2nd

criminal complaint.

That letter is found in (Appn. F, al5) and no policy reason or

prosecutorial discretion or separation of power can be found there.

When the D.A. states in that letter: “I feel that your latest criminal

complaint is an obvious attempt to circumvent the Order of Judge

Herbert Schchaffner...” he is expressing that as a fear of circum-

venting an earlier Order, and he is not expressing it as a policy.

If the D.A. had intended that the above statement serve as his

policy statement, or prosecutorial discretion statement, or separa-

tion of powers statement, I suspect that he would have to put it in

writing at the time he made the statement. If it can somehow be

construed that the D.A. raised policy reasons, or separation of

powers, or prosecutorial discretion in his answer to the lst com-

plaint (which your petition er denies that it can) still the D.A.

presented no answer or any kind of paper to the 2nd complaint and

he did not appear in court to argue Exception, therefore, the lower

court and the appellate court should have overruled the D.A. on the

2nd complaint. These were two distinct and different cases. The

only similarity was that they were both criminal complaints

against the same public official. Otherwise, each case was indepen-

dent of the other as is witnessed by (Appn. G and H, al6 - a22).

Certainly, it cannot be argued that the answer to a criminal

complaint filed on January 4, 1991, also serves as answer to a

different complaint filed on May 20, 1991. If that had been the

intent of the D.A., wouldn’t he have to tell somebody. Both criminal

complaints were brought pursuant to Pennsylvania's perjury and

false swearing Act found in (Appn. P, a29-a31). Part b of that Act

(p. a29) states that a question of materiality is for the court to

determine, not the D.A. Therefore, even if the D.A. had raised

separation of powers in reply to any or all of these criminal

complaints, he could not invoke prosecutorial discretion while

basing his denial of these complaints on a lack of materiality as he

did. The law specifically states that materiality is not within his

discretion to decide. This argument was set before the Supreme

Court of Penna. in the Application for Appeal (Appn. LL, pp. al17

& al18).

If the court of last resort in Penna. had intended that the

Executive Office of the D.A. was to assume this judicial function,

and since the issue was raised in that court, the separation of

powers doctrine of the State and U.S. Constitutions must be

invoked. Such assumption of power on the part of the D.A. renders

him both, prosecutor for the State (an executive function) and judge

on the issue of materiality (a judicial function). Such was not the

intent of the founding fathers.

Rule 133 (Appn. M, a27) was the authority by which the issue of

perjury was brought to the D.A. In the proceedings below, we have

repeatedly requested an evidencing hearing. In the Order of

February 26, 1991, the Court said that a hearing in the matter

would not be entertained (Appn. SS, al130). We objected to the lack

of a hearing in Exception No. 4 to the Trial Court, in the Brief to

that Exception, in the Memorandum to the 2nd Criminal Com-

plaint, and in Question No. 4 to the Appellate Court. (Appn. TT,

al32 - 134).

These demands have all been denied, presumably because Rule

133 does not specifically state that the court must grant a hearing.

On the other hand, however, neither does Rule 133 grant

prosecutorial discretion to the D.A., but the Court has neglected

to see this.

Regardless of how the courts below have impoverished this

petitioner of the justice, equal protection of the law, and the

privileges of liberty under the Bill of Rights by editorially sweep-

ing the crimes of perjury by the government away, the issue boils

down to just one narrow fact, the fact that these rulings of Court

are an attempt to remove same of the judicial burden placed upon

the State courts.

The test of this statement can be found in the Trial Court’s final

Opinion (Appn. C) at a6 where it is stated that, “...this case [of

perjury by a governmental official] has no place in the justice

system...” p. a8 where the Court states: ‘..this case [of perjury by

a governmental official] is less important than any other criminal

case in the county.” It can also be found in the dissenting Opinion

to the Benz case (Appn. FF, al03 & al04) where State Supreme

Court Justice Papadakos states, “...a D.A.’s power to approve or

disapprove private criminal complaints is consistent with that

office’s unreviewable authority... History, logic and efficiency

require that this limitationon a prosecutor’s discretion must be

read as narrowly as possible least we make the already overbur-

dened criminal justice system wholly impossible to administer.”

What he and the courts of Penna. refuse to realize is the fact that

failure to prosecute a governmental official for the crimes of

perjury is, in itself a brake down of the criminal justice system.

Covering up the crime does not give rise to unreviewability by the

courts. Nor does neglect in prosecuting private criminal com-

plaints alleging prima facie cases of criminal activity make the

Pennsylvania judicial system whole again.

What Justice Papadakos and the courts below neglect to under-

stand is that crime, and, therefore, the administration of law

through the judicial system can best be controlled through weeding

out and prosecuting the criminals, especially the criminally in-

clined governmental officials who seem to think that they are above

the judicial system and accountable to no authority, whether

legislative or constitutional. Had the Affiant’s 1984 allegations of

perjury been prosecuted, the ’88, perjury would not have occurred.

But failure and neglect in lawfully discharging the duties of the

Office of District Attorney, encouraged the further perjury by that

government. Penn. courts are wrong, to think that encouraging

perjury through failure to prosecute will curtail crime. On the other

hand, perhaps curtailing crime is not the object, perhaps all the

courts want is a clear court calender.

With all of the negative remarks and characterization of the

Affiant by the Trial Court in its Opinions to this case, the fact

remains that the Trial Court accepted false ex parte communica-

tions from the D.A. and refused to correct the matter through a

hearing of the Criminal Complaints. At the trial Court level and

again in the Appellate Court, we had pleaded for an evidencing

hearing. Not simply to air our prima facie case of perjury but as

evidenced by Appn. TT, al31-a134, to respond to the false ex parte

communications which the D.A. held with the court, and to en-

lighten the Court as to the true facts of the issue and, thereby, allow

the Court the opportunity to correct the errors of its first Opinion.

We had not known of the false information presented to the court

by the D.A., in fact, we had not known that anything was presented

until it was revealed in the Court’s Opinion, therefore, our opposi-

tion was voiced in the Exceptions. By vertu of those Exceptions

(Appn. TT, al31-a133) the Court learned that the D.A.’s Memoran-

dum was filed ex parte, and that the evidence supplied in that ex

parte communication was false.

The false ex parte communications by the D.A. evidences a cover-

up of the crimes of perjury by a public official, and a mis-carriage

of justice. Indeed a denial of due process of law and equal protection

of the law, for now, upon the presentation of Exceptions, both the

D.A. and the Court knew that the communications of the D.A.’s

Memorandum was ex parte, and false. The Court, in denying a

hearing, failed to see the true evidence in the context presented,

further illustrating the intent of the Common Pleas to put the

Affiant out of Court, and deny the justice demanded by the U.S.

Constitution.

Throughout its Orders the Court displays a lack of understand-

ing as to why this citizen pursues the issue of perjury by a

governmental official. Perhaps the Court is not familiar with the

writings of the founder of our Commonwealth where he William

ream in rw book entitled, Ne Re Hee ne EY

great a but hard to be gained, if once lost. The full text of

this statement is found in Appn. VV, a136. It is the pursuit of

justice, equal protection, and the privileges under the Bill of

Rights that brings this case for they, “Will be hard to be gained if

once lost”

The Commonwealth of Pennsylvania has violated this petitioner’s

14th Amendment rights to equal protection of the law, de proses

of law, and privilege under the law of bringing the case to a grand

jury pursuant to the 5th Amendment which is made applicable

through the 14th Amendment.

It is deceitful for the lower courts to state that review of a private

criminal complaint by a judge of the Court of Common Pleas

checks and balances the decision of the D.A. The instant case

proves that the judge of the Common Pieas is nothing more than

a stamp for the D.A.’s decision.

In this case where the D.A. had not pleaded prosecutorial

discretion through separation of powers it was given to him by the

judge. Where the accused was alleged to have knowingly made

false statements under oath (Appn. H, a20 & a21) the judge stated

that the allegation was never made (Appn. E, al3). Where an

overwhelming amount of evidence was brought to support a prima

facie case of perjury against the accused (Appn. T, a37 - a63) the

judge stated that a crucial element of verification was not pre-

sented (Appn. E, al3). The D.A. held ex parte communications

with the Court and the D.A. has admitted to the Superior Court

that he filed his Memorandum without copying the Affiant (Appn.

S, a36). Would this Honorable Court accept any papers not served

upon the opposing party? The D.A.’s argument that the Affiant

was required to go to the Clerk of Court’s Office daily to check the

docket for a filed Memorandum is preposterous. Such a burden

has never been required of any party to acriminal proceeding. The

Penna. Rule of Professional Conduct No. 3.5 entitled “Impartiality

and Decorum of the Tribunal. A lawyer shall not: a. Seek to

influence a judge, juror, prospective juror or other official by means

prohibited by law. b. Communicate ex parte with such a person

except as permitted by law.” Rule 9023 of the Pa. R. Crim. P. state:

“Except as otherwise provided in these Rules, all written motions,

and any notice or document for which service is required, shall be

served upon each party concurrently with filing.” Rule 9022 of the

Pa. R.Crim. P. states: “Except as otherwise provided in these rules,

all written motions, and any notice or document for which filing is

required, shall be filed with the Clerk of Court.” Because the Trial

Court Ordered the D.A. to file a Memorandum and because it was

filed pursuant to Rule 9022, Rule 9023 required that the document

also be served on the Affiant. The court relied upon the D,A,’s

allegations (which Cheppa has not seen) that the whether records

evidence that it was raining on August 5, 1983. As such, the trial

Court’s Order was tainted by the false ex parte communication of

the D.A. as can be seen in the judge’s Opinion (Appn. E, al3) where

he states: “The affiant has not attached any verification of weather

conditions...that the witness made an untrue statement under

oath that it was raining on that day. ...the Commonwealth has

attached to its memorandum a copy of the climatological data for

the Capital City Airport...which shows that the Harrisburg area

received rain on that date.” The falsity of that statement is proven

by (Appn. T9, a56; T10, a57, T11, a59, and T12 a60) where two

witnesses state that there was no rain at the Cheppa property

while the accused was there, and, that the accused arrived at 11:40

A.M. and was finished with the work at 3:30 P.M. The record from

NOAA proves there was no rain. The fact that it began to rain after

6:00 P.M. had no bearing on the alleged perjury by the accused

stating that he went to the Cheppa property “...during and because

of heavy rain and flooding..” (Appn. T7, a46 - a53) and the D.A. was

well aware of that fact because I personally showed him the NOAA

work sheet and the remaining evidence plus photographs, proving

that there was no rain that day at the time in question.

If this prima facie case of perjury against a public official had

been brought to a grand jury as was argued in Affiant’s Exceptions

(Appn. X, a73 & a75) the accused would have been prosecuted and

justice would have been served.

It is common knowledge that the 5th Amendment to the U.S.

Constitution is made applicable to the States through the 14th

Amendment, but we can go further. William Penn - Founder of

Pennsylvania - writing in his book, The Excellent Privilege of

' oe

Liberty and Property Being the Birth Right of Free Born Subjects

of England, stated that a part of the privilege of liberty was the

grand jury. The grand jury is also found in the Pennsylvania

Charter of 1701, and it is found in the Federal Bill of Rights,

specifically, the Fifth Amendment. William Winslow Crosskey

has researched the U.S. Constitution and its Amendments for a

period of more than 30 years before writing the 1st two volumes of

his book, Politics and the Constitution, in the history of the United

States. A professor of Law at the University of Chicago, Crosskey

undertook this endeavor, not simply, to meet some predetermined

conclusion of his, but to gain a solid insight to the true meanings

and full intent of those documents. Throughout his writings,

whenever he speaks about the Ist eight Amendments to the U.S.

Constitution, the evidence he has uncovered show two facts; 1)

Where the Amendments are written in general terms, they apply

fully to both, the National Government and the State Govern-

ment. 2) Where the Amendments are written specifically for

direction of the National Government, it applies only to the U.S.

The full text of Crosskey’s statement on pages 1075 and 1076 of his

2ed volume is reprinted in Appn. WW, al37 & a138.

Much could be quoted from Professor Crosskey’s research to

support the instant Petition before you today, not only did these

Amendments apply to the States, but many of the States wanted

those Amendments of Federal controls on the States because only

about half of the States had a Bill of Rights, and those that did, did

not have the wherewithal to enforce those Rights (Crosskey at

1061 to 1064).

The Fifth Amendment is written in those general terms: “No

person shall be held to answer...”. Had this amendment been

included to apply only to the National Government, it surely

would have read something like: “Congress shall pass no law

holding a person to answer...”.

When speaking about the grand jury clause in the 5th Amend-

ment, the 5th Amendment confers prosecutorial discretion only

upon a grand jury. The 5th Amendment was so framed for several

reason. The 5th Amendment’s intent was to devise a criminal

system that was fair to the accused and to the victim of the crime;

to take the inditing proses out of the hands of any one man; and to

make the inditing process uniform in every State and Territory.

For those reasons the inditing process was given to a cross-section

of the accused’s and victim’s piers, providing part of the justice and

perfect Union clauses of the Constitution’s preamble.

Granting prosecutorial discretion to the State Prosecutor re-

verses the full intent of the grand jury clause in the 5th Amend-

ment and, thereby, reverses the 5th Amendment itself. By grant-

ing prosecutorial discretion to the D.A., no longer can the inditing

proses be fair to the accused and to the victim. No longer can the

standards and elements of indictment be uniform, and no longer is

an accused individual prosecuted or released by a cross-section of

his piers, because granting prosecutorial discretion to the D.A.

effectually places the inditing process back into the hands of one

person.

Some may say that the 5th Amendment applies only to the

accused in criminal cases. As previously recited, the 5th Amend-

ment was written to privilege both, the accused, and the victim.

However, there is further argument on this point as is found in Mr.

Justice White’s dissenting Opinion to the Linda RS. case (Appn.

HH, alll & 112). “The Court notes as it must ...” that a criminal

indited by a grand jury under the 5th Amendment, could properly

raise the Amendment’s underinclusiveness as an affirmative de-

fense. Presumably, that same Criminal defendant would have

standing to affirmatively seek to enjoin enforcement of indictment

by a grand jury. The question then becomes simply: Why should

only the actual criminal defendant have a recognizable interest in

attacking this allegedly discriminatory Amendment and not the

victim and his class?

After the Barron v. Baltimore case and some other erroneous

rulings by the Supreme Court of the time, many of the States began

to disregard the Federal Bill of Rights. This was especially preva-

lent just before, during, and immediately after the Civil War. To

correct this lack of proper behavior on the part of the States, the

14th Amendment was ratified. Section one of that Amendment

specifically gives to each Citizen of every State the rights and

privileges of the Federal Bill of Rights: “All persons born or

naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein

they reside.”

That clause bestows dual and equal citizenship on all of the

American people, thereby, ending all arguments as to who was

covered by the Section and what the coverage was. Because, the

second part reads: “No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.” The

privileges and immunities spoken about here are those of the

Federal Bill of Rights, these clauses forbid the States from depriv-

ing any of the Federal Bill of Rights to any U.S. Citizen. Who are

these U.S. Citizens? You and I, the Citizens of the States are the

Citizens of the United States. So states, the 14th Amendment.

As found in the Text by: Michael Kent Curtis, No State Shall

Abridge the Fourteenth Amendment and the Bill of Rights, “So

far, at least, the broad call to free the States from the commands

of the federal Bill of Rights has received very little encouragement

from decisions of the Supreme Court ... [t]he court can change

direction - if it chooses - and allow States to violate the Bill of

Rights. It cannot, however, justify this result by a fair reading of

history.”

In view of the forgoing, it is requested that these Constitutional

issues of separation of powers under the Constitution, the Privi-

leges of Liberty under the Bill of Rights and the 5th Amendment,

the Due Process and Equal Protection under the 14th Amendment

and the conflicting Order regarding the Separation of Powers and

Prosecutorial discretion in this case with that rendered in Benz.,

be placed on the court calendar for hearing at the October 1993,

term by this Honorable Court.

hn Cheppa a

6 Catherine Drive

arrisburg, Pa. 17112-3618

(717) 545-5744

APPENDICES ai

Appendix Page

A Feb. 11, 1993. Order of Penn. al

Supreme Court Denying Affiant’s

Application for hearing.

B May 28, 1992. Opinion and Order of a2

Penn. Superior Court.

C July 19, 1991. Final Opinion and a4

Order of Trial Court.

D June 26, 1991. Second Opinion and aQ .

Order of Trial Court.

E Apr. 23, 1991. First Opinion and al0

Order of Trial Court.

F May 23, 1991. Second Order of al5

District Attorney.

G May 20, 1991. Allegations of al6

perjury in second complaint

TO DA.

H Nov. 20, 1991. First Complaint to a20

District Attorney.

H Nov. 29, 1990. First order of a20

District Attorney.

J Jurisdiction Act. 18 U.S.C. a23

ss 1257

K Amendment V to the United States a24

Constitution

L Amendment XIV to the United a25

States Constitution

M Rule 133 of the Pennsylvania a27

Rules of Criminal Procedure

N Rule 134 of the Pennsylvania a28

Rules of Criminal Procedure

Pennsylvania perjury and false

swearing Act of 1972, Dec. 6, P.L.

1482, No. 334, ss 1. 18 Pa, C.S.

ss 4902 and 18 Pa. C.S. ss 4903 .

Jan. 4, 1991. US Constitution

raised in First Complaint to

Trial Court, #M.D. 12, 1991.

Jan. 14, 1991. District

Attorney’s Answer to US Constitution.

Dec. 5, 1991. District Attorney’s

alleged excuse to Supreme Court

for ex parte communications.

Affiants evidence of perjury

Witness’ statement of Kitner-

Cheppa Agreement that soil from

the right-of-way belonged to Cheppa.

Kitner testimony given under oath

on August 2, 1986, that he used

Cheppa soil to backfill over a

public storm-drain pipe.

Kitner testimony given under oath

on August 26, 1986, stating that he

had the Original Copy of the

Cheppa Contract, that he studied

it very carefully and that he

voted {as Township Supervisor] on

that Contract, and approved it.

Kitner testimony given under oath

on July 13, 1988 stating that he

did not have the Cheppa Contract.

Witness’ statement, Metro Lynn

stating that Kitner testified

under oath on July 21, 1987, in )

case No. TA 87-427 that he did

not use Cheppa soil to backfill

over a public storm-drain pipe.

a32

a33

a36

a37

a38

a40

a42

a44

aill

T6 Witness’ statement, Lynn Uria a45

stating that Kitner testified

under oath on March 28, 1988, in

case No. 3171 5 1987 that he did

not use Cheppa soil to backfill

over a public storm-drain pipe.

T7 Kitner testimony given under oath a46

on July 13, 1988, stating that he

removed the soil from the right-of-

way because of flooding and heavy

rain on August 5, 1983.

T8 Township Attorney opens and a54

closes his argument at a bench

trial on August 5, 1988 based

upon Kitner’s perjury about rain

and heavy flooding on August 5,1983.

T9 Witness’ statement, John Robinson a56

stating that there was no rain at

the Cheppa property on August 5,

1983 while Kitner and Township

Road Crew was there.

T10 Witness’ statement, Mr. Linker - a57

Township Official - stating that

there was no rain on the Cheppa

property on August 5, 1983 while

Kitner and Township Road Crew were

there.

T1l Official weather records from the a59

National Oceanic and Atmospheric

Administration of the

Harrisburg Penna. Area on August

5, 1983 showing no rain while

Kitner and the Township Road Crew

were at the Cheppa property.

T12 Witness’ statement Paul Carl a60

| |

Township Road Crew Worker stating

the approximate time the Township

Road Crew left the Cheppa property

on August 5, 1983.

T13 List of truthful testimony given a61

under oath by Kitner on July 13, 1988.

T14 Statement from Criminal a63

psychiatrist, Paul Phillips

stating that Kitner did not

suffer memory loss on July 13,

1988 when he testified in Court.

U May 3, 1991. US Constitution a64

raised in First Complaint AND

First Exceptions.

V June 7, 1991. US Constitution a65

raised Brief to First Exceptions.

W June 19, 1991. US Constitution a69

raised in Second Complaint to

Trial Court.

X June 19, 1991. US Constitution a70

raised in Second Memorandum to

Trial Court.

- July 1, 1991. US Constitution a76

raised in Second Exceptions.

Z July 10, 1991. US Constitution a77

raised in Brief to Second Exceptions

AA Nov. 6, 1991. US Constitution a78

raised in Brief to Superior Court

of Pennsylvania.

BB June 29, 1992. US Constitution a84

raised in Application to Supreme

Court of Penna.

CC Pennsylvania’s Statute of a87

Limitations.

Majority Opinion in Benz a89

Concurring Opinion in Benz. a99

Dissenting Opinion in al03

Benz.

LINDA R:S. Appellant, v. al06

RICHARD D. AND TEXAS et al.

410 US 614, 35 L Ed 2d S36,

93 5 Ct 1146.

LINDA R:S. Appellant, v. alll

RICHARD D AND TEXAS et al.

410 US 614, 35 L Ed 2d 536,

93 5 Ct 1146. Mr. Justice White,

with whom Mr. Justice Douglas

Joins, Dissension.

LINDA R:S. Appellant, v. all4

RICHARD D. AND TEXAS et al.

410 US 614, 35 L Ed 2d 536,

93 5 Ct 1146. Mr. Justice

Blackmun, with whom Mr.

Justice Brennan Joins,

Dissension.

DISTRICT ATTORNEY'S FIRST CLAIM all6

TO PROSECUTORIAL DISCRETION BASED

ON POLICY REASON: page 8 of

D.A.’s reply to Appellate Court.

PETITIONER'S OBJECTION RAISEDIN = all7

SUPERIOR COURT TO D.A.’s

USURPATION OF JUDICIAL FUNCTION.

March 17, 1993, Notice of Appeal. all9

March 30, 1993, Petition to U.S. al21

Supreme Court for additional

time for filing.

April 7, 1993, Order of U.S. al26

Supreme Court extending time for filing.

Pa. 16 PS. ss 1409.

Act of March 12, 1866, P.L.

85, ss 1. ,

Common Pleas Denial of Hearing.

Affiant’s request for hearing

in Exceptions to M.D.12, in

Brief to Exceptions, in

Memorandum to M.D. 455

42 PA. C.S.A. ss742

Appeals from courts of

Common Pleas

Pa. Rule of Appelate

Procedure

William Penn

The Excellent Privilege of

Liberty

W. W. Crosskey

Politics and the Constitution

avi

al27

al28

al30

al32

a135

al35

al36

al37

— a oe ee

APPENDIX A

COMMONWEALTH OF PENNSYLVANIA

STANLEY KITNER

NO. 0242 M.D. ALLOCATUR 1992

Dear Petitioner:

This is to advise that the following

Order has been endorsed on the Petition

for Allowance of Appeal in the above-captioned matter:

02/11/93

Petition Denied.

Per Curiam

PROTHONOTARY’S OFFICE

SUPREME COURT OF PENNSYLVANIA

APPENDIX B

IN THE SUPERIOR COURT OF PENNSYLVANIA

NO. 498 HARRISBURG 1991

COMMONWEALTH OF PENNSYLVANIA

APPELLEE

STANLEY KITNER

APPEAL OF: JOHN CHEPPA

Appeal from the Order of the Court of Common Pleas of

Dauphin County, Criminal Division at No. 12 M.D. 1991: 455

M.D. 1991.

BEFORE: POPOVICH, HIDOCK and HESTER, Ju.

MEMORANDUM: FILED: May 28, 1992

This is an appeal from the order of the Court of Common

Pleas of Dauphin County entered on July 17, 1991, dismissing

appellant’s exceptions to the court’s prior orders which af-

firmed the District Attorney’s rejection of appellant’s private

criminal complaints against Stanley Kitner. Herein, appellant

raises numerous allegations of error on the part of the trial

court. All of which we find to be meritless.

The trial court, in its independent review of the private

criminal complaint, should not interfere with the exercise of

APPENDIX B

prosecutorial discretion unless it is determined that there has

been a “gross abuse of discretion”. Commonwealth v. Pritchard,

Pa. Super. 596 A.2d 827, 833 (1991). Having reviewed the

record and the parties’ briefs, we agree with the lower court

that the District Attorney properly refused to prosecute

appellant’s private criminal complaint.

Since the decision of the court below properly dispose[d] of

this appeal, we affirm and adopt the opinion of the Honorable

Herbert A. Schaffner as our own for the purpose of allocatur.

Order affirmed.

Judgement entered

dated: May 28, 1992

Deputy Prothonotary

APPENDIX C

IN THE COURT OF COMMON PLEAS

DAUPHIN COUNTY PENNSYLVANIA

No. 12 M.D. 1991

No.455 M.D. 1991

COMMONWEALTH OF PENNSYLVANIA

STANLEY KITNER

OPINION

Pennsylvania Rule of Criminal Procedure 133 provides that

a private person shall submit a proposed criminal complaint to

the attorney for the Commonwealth who shall approve or

disapprove the complaint. Further, the rule provides that ifthe

Commonwealth’s attorney disapproves the complaint and states

the reasons for his action, the affiant may file the complaint

with a judge of the court of common pleas for approval or

disapproval. Pennsylvania case law has provided that the

district attorney shall exercise discretion concerning whether

to approve the proposed criminal complaint or not and the

common pleas court only oversees the act of the district attor-

ney in order to determine whether there has been a gross abuse

of the Commonwealth attorney’s discretion. Commonwealth v.

Muroski, 352 Pa. Super. 15, 506 A.2d 1312 (1986); Common-

wealth v. Eisemann, 308 Pa. Super. 1, 453 A.2d 1045 (1982);

and Commonwealth v. Malloy, 304 Pa. Super. 297, 450 A.2d

689 (1982).

In the matters before us, Mr. John Cheppa has sought to have

the District Attorney of Dauphin County approve Mr. Cheppa’s

APPENDIX C

proposed criminal complaint against Stanley Kitner. The first

proceeding is indexed to No. 12 M.D. 1991 and District Attor-

ney Lewis rejected Mr. Cheppa’s suggested complaint in that

proceeding. Mr. Cheppa appealed to the Court and we dealt

with that in an Opinion and Order dated April 23, 1991. Mr.

Cheppa. Through counsel, filed exceptions to that decision and

on May 20, 1991, we established a briefing schedule for counsel

and, subsequently, oral argument was scheduled for July 10,

1991. Then, on May 20, 1991, Mr. Cheppa presented a second

proposed private criminal complaint to District Attorney Lewis,

again seeking approval of the institution of a criminal action

against Stanley Kitner. We are advised that the District

Attorney rejected this proposed criminal complaint on May 23,

1991 and that act resulted in Mr. Cheppa filing a petition for

approval of private criminal complaint with this Court onJune

19, 1991. The matter was referred to us and we, by Order dated

June 26, 1991, upheld the act of the District Attorney relative

to his disapproval of the suggested prosecution. Exceptions

were then filed to the latest Order referred to by the Court, to

No. 455 M.D. 1991, and a request was then made that these

latter exceptions, as well as the exceptions to our earlier

Opinion and Order docketed to No. 12 M.D. 1991, be consoli-

dated for argument. We granted that request and ten granted

a further request made to us on July 10, 1991, continuing the

argument on these matter[s] until July 16, 1991.

We have reviewed all of the documents before us, and are

absolutely satisfied a that the district attorney properly

APPENDIX C

exercised his discretion and that these suggested prosecutions

have no place in the county’s extent[ed] justice system. It takes

very little to illustrate the correctness of this latter statement.

This case, and all of the matters related to it which have been

in this county’s court system in recent years, stem from an

incident that occurred on August 3, (sic) 1983, eight years ago.

A township employee, Stanley Kitner, was responsible on that

day for removing soil from a township right-of-way and depos-

iting it on the land of John Cheppa. Subsequently, that same

soil was removed from Cheppa’s land and placed elsewhere, not

on his property.(sic) Mr. Cheppa took offense to the removal of

his soil and a number of legal proceedings resulted therefrom.

There were at least two proceedings before a district justice, a

proceeding before a Board of Arbitrators in Dauphin County, a

hearing in equity before one of the members of this Court and

finally, a hearing before another member of the Court on an

appeal from the decision of the Board of Arbitrators that we

have referred to. Mr. Cheppa alleges that Mr. Kitner has

committed acts of perjury and has made false statements under

oath in these proceedings. Mr. Cheppa says that Mr. Kitner

testified falsely about whether or not it was raining on August

3, (sic) 1983, to whom the soil belonged that was taken from the

right-of-way in front of Cheppa’s property and, finally, about a

contract that had existed between he township and Mr. Cheppa.

We do note that in the civil proceeding, in which Mr. Cheppa

claimed that the township owed him the money s worth of the

soil that was taken. Cheppa prevailed, got a judgment for the

amount of the soil, $2,540.61, and has been paid. Thus, what-

APPENDIX C

ever misstatement Mr. Kitner may have made about the soil,

or the contract, or the rain, Mr. Cheppa was reimbursed for the

soil that was ultimately found to have been improperly taken.

Thus, the matter would seem, to the law’s “reasonable and

prudent person,” to be at an end. But it is not and the matter

is obviously, for reasons unknown to us, much more important

to Mr. Cheppa. In his brief before us on the question of his

exceptions to our April 1991 ruling, Cheppa alleges that ill

health has been brought to him because of Mr. Kitner’s “perjury

and false swearing.” Cheppa states that he “can no longer eat

sweet-corn, he can no longer eat sweet-peas, he can no longer

eat onions,...” In fact, it is very clear that Mr. Cheppa has taken

this matter as such a personal affront to him that he has no

reasonable perspective of the incident. To quote further from

his brief to us, to demonstrate this lack of perspective, the

following statements are instructive:

“This is not a case such as a domestic relations issue where

one spouse lied in court against the other. This is not a case

where there is no victim. This is a case where the local

government of West Hanover Township (in the name of Stanley

Kitner) stole a citizen’s dirt. Then, he used citizen’s tax pay-

ments and hired a lawyer to protect his theft. He went into

court with perjury and false swearing where he knowingly lied

against one of the citizens of his community.” “Mr. Kitner has

abused that trust by stealing a man’s dirt, then using citizens

tax monies, he went into court with perjury to protect that

theft.”

APPENDIX C

As we have noted, the district attorney is to exercise his

discretion in approving or disapproving a proposed private

criminal complaint. That discretion is discretion in a purely

legal sense and involves a decision-making process bounded by

the rules and principles of criminal law, and may not be a

decision made in an arbitrary, capricious, or unrestrained

manner. Black’s Law Dictionary, 4th Edition, Page 553. We

are, of course, keenly aware that the county’s judicial system is

“teeming” with criminal matters and we can think of none that

are less important than Mr. Cheppa’s own concern about an

individual, who must be his earnest adversary, giving conflict-

ing testimony about the same series of events in different legal

forms [forums].over the course of years. We can only conclude

that the legislature was wise in providing that, in serious cases,

the attorney for the Commonwealth must approve or disap-

prove a private criminal complaint and that the courts who

have construed this rule provided that the district attorney

shall make his decision in the exercise of his prosecutorial

discretion. We are satisfied that the district attorney has not

abused his discretion at all in this case and we dismiss the

exceptions filed to both of this (sic) docketed proceedings.

Accordingly, we enter the following

ORDER

AND NOW, this _19_ day of July, 1991, the exceptions to our

April 23, 1991 order and to our order of June 26, 1991 are

dismissed.

APPENDIX D

IN THE COURT OF COMMON PLEAS DAUPHIN

COUNTY PENNSYLVANIA

No. 455 M.D. 1991

- COMMONWEALTH OF PENNSYLVANIA

STANLEY KITNER

ORDER

AND NOW, this 26th day of June, 1991, the petition of John

Cheppa to have the Court Approve a proposed Private criminal

complaint in this matter is denied, and the act of the District

Attorney of Dauphin County, in his prior disapproval of the

suggested prosecution, is upheld.

BY THE COURT:

Herbert A. Schaffner, Judge

al0

APPENDIX E

IN THE COURT OF COMMON PLEAS

DAUPHIN COUNTY PENNSYLVANIA

No. 12 M.D. 1991

COMMONWEALTH OF PENNSYLVANIA

STANLEY KITNER

OPINION

John Cheppa filed a petition for approval of private criminal

complaint. In this petition, Mr. Cheppa states that on Novem-

ber 23, 1990, he presented a proposed criminal complaint to

Dauphin County District Attorney Richard A. Lewis for ap-

proval in accordance with Rule of Criminal Procedure 133(a).

The proposed criminal complaint alleges that Stanley Kitner of

899 Piketown Road, West Hanover Township, committed two

acts of perjury and two acts of false swearing while a witness

under oath in a nonjury proceeding before the Honorable

Clarence C. Morrison onJuly 13, 1988. On November 29, 1990,

District Attorney Lewis disapproved the private criminal com-

plaint and stated that the portion of Mr. Kitner’s testimony in

controversy, even if knowingly false, was not material to the

outcome of the proceedings. Mr. Cheppa then filed the com-

plaint with the Dauphin County Court of Common Pleas

pursuant to Rule of Criminal Procedure 133(b)(2). An answer

was filed on behalf of the District Attorney’s Office and we

directed the Commonwealth to file a memorandum in support

of its position. This matter is now before the Court for disposi-

tion. Our scope of review is limited to making an independent

a ll

APPENDIX E

determination as to whether the District Attorney abused his

discretion in refusing to approve the private criminal com-

plaint. See Commonwealth v. Eisemann, 308 Pa. Super. 16,

453 A2d 1045 (1982); Commonwealth v. Fisher, 28 D&C 3d

428 (1984). Unlike the District Attorney, the court in its review

of the Commonwealth’s decision is not required to give reasons

for either approval or disapproval and there is no requirement

that a hearing be granted. Commonwealth v. Braun, 19 D&C

3d 572 (1980). Nevertheless, we will discuss Mr. Cheppa’s

concerns and outline the basis for our decision.

In Count I of the proposed criminal complaint, the affiant

claims that Stanley Kitner committed perjury by stating as a

witness in a civil proceeding before Judge Morrison that it was

rainingon August 5, 1983 at and before the time he was present

on John Cheppa’s property at 7176 Catherine Drive, West

Hanover Township. In Count II, it is alleged that Kitner

committed perjury in the same proceeding by stating that he

went to the property of John Cheppa on August 5, 1983 for the

purpose of unblocking waters from Catherine Drive, Counts III

and IV allege the same statements in support of the false

swearing claims.

The civil action docketed to 3171 S 1987 was a suit by John

Cheppa against West Hanover Township for damages result-

ing from the township’s use of dirt which allegedly belonged to

Mr. Cheppa. Mr. Cheppa was successful in this action and was

awarded $2,540.61 as compensation for the dirt. The issue in

the proceeding before Judge Morrison was the ownership of the

dirt. Mr. Kitner, a representative of the township, stated that

al2

APPENDIX E

he responded to a complaint, that because of a heavy rain,

water had collected on Catherine Drive. He indicated that upon

investigation, he found that dirt had been deposited on the

right-of-way and that the water could not drain properly

because of the dirt. The township removed the dirt from the

right-of-way and deposited it on Mr. Cheppa’s property. The

township’s subsequent use of this dirt resulted in the civil

lawsuit. Mr. Cheppa agreed that there was dirt on the right-of-

way but testified that the dirt was removed and deposited on

his property pursuant to an agreement.

Perjury is defined as follows:

“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 mate-

rial and he does not believe it to be true.

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 nodefence that the

declarant mistakenly believed the falsification to be immate-

rial. Whether a falsification is material in a given factual

situation is a question of law.” 18 Pa. CS. ss4902(a)(b).

False swearing is defined as follows:

“(a) False swearing in official matters. - A person who makes

a 13

APPENDIX E

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. ss4903(a).

The issue in the proceeding before Judge Morrison was the

ownership of the dirt which the township had removed (sic)

from the right-of-way, deposited on Mr. Cheppa’s land and

subsequently used for the township’s purposes. The weather

conditions on August 5, 1983 and the reason for the township’s

removal of the dirt from the right-of-way on that date and the

subsequent deposit on Mr. Cheppa’s property had absolutely

no bearing or could have had no bearing on Judge Morrison’s

decision. Furthermore, the affiant has not alleged that Mr.

Kitner knew that his statements at issue in this complaint

were untrue. The affiant has not attached any verification of

the weather conditions on August 5, 1983 in support of his

position that the witness made an untrue statement under

oath that it was raining on that day. In fact, the Common-

wealth has attached to its memorandum a copy of the climato-

logical data for the Capital City Airport for August 5, 1983

which shows that the Harrisburg area received rain on that

date.

ai4

APPENDIX E

Since ownership of the dirt was at issue in the proceedings

before Judge Morrison, it was irrelevant as to why the dirt was

removed from the right-of-way and placed on Mr. Cheppa’s

property. Mr. Cheppa has had his day in court to litigate this

ownership issue and we will not countenance a further meritless

criminal proceeding to air Mr. Cheppa’s obvious reluctance to

put the matter behind him. We find that the Commonwealth

did not abuse its discretion by disapproving the private crimi-

nal complaint and accordingly, we enter the following

ORDER

.AND NOW, this _23 day of April, 1991, affiant’s petition for

approval of private criminal complaint is dismissed.

BY THE COURT

Herbert A. Schaffner, Judge

Bice ge AED as BAGS El

APPENDIX F

RICHARD A. LEWIS

District Attorney

Dauphin County

Harrisburg, Pennsylvania 17108

May 23, 1991

Mr. John Cheppa

7176 Catherine Drive

Harrisburg, Pa. 17112-3618

Dear John:

This will acknowledge receipt of a private Criminal Com-

plaint submitted by you outlining allegations against Stanley

Kitner on charges of perjury and false swearing.

| have reviewed your correspondence dated May 20, 1991,

which accompanied the Criminal Complaint. Additionally, |

have reviewed prior correspondence that | forwarded to you on

this particular matter.

I feel that your latest Criminal Complaint is an obvious

attempt to circumvent the order of Judge Herbert Schaffner

affirming my earlier decision disapproving a previous Crimi-

nal Complaint which you filed in the same matter.

Once again, I must state that I do not feel the statements of

Mr. Kitner, whether true or false, are material to the outcome

of this particular matter.

Accordingly, I am disapproving this latest private Criminal

Complaint.

Thank you.

Richard A. Lewis

District Attorney

APPENDIX G

SECOND COMPLAINT TO DISTRICT ATTORNEY

CRIMINAL COMPLAINT (PRIVATE)

C 36262

District Attorney’s Office B

( ) Approved

( ) Disapproved because

(Issue Dated) (Signature)

COMMONWEALTH OF PENNSYLVANIA

VS.

Defendant: Stanley Kitner

899 Piketown Road

West Hanover Township

Dauphin County, Penna.

John Cheppa

(Name of Affiant)

of Private Individual

residing at_7176 Catherine Dr., Hbg. Pa

do hereby state under oath or affirmation, to the best of my

knowledge, information and belief:

1) I accuse the above named defendant, who lives at the

address set forth above, with violating the penal laws of the

Commonwealth of Pennsylvania at the Office of District Jus-

tice Magaro and the Dauphin County Court House In Dauphin

County on or about 8/26/86, 7/21/87, 3/28/88 and 7/13/88.

2) The acts committed by the accused were:

———eerre ee

a 17

APPENDIX G

The defendant has made inconsistent statements under

oath, both having been made within the period of the statute of

limitations, both having been material to the outcome of a civil

suit, one was false and not believed to be true by the defendant.

On August 26, 1986 the defendant stated that $2500.00 worth

of soil belonged to the Affiant and that he had a copy of the

contract in question. On July 21, 1987 and March 28, 1988 the

defendant stated that the afore mentioned soil belonged to

West Hanover Township, and on July 13, 1988 the defendant

stated that he did not have the contract in question.

PERJURY: two counts,

FALSE SWEARING: three counts

Please see Appendum.

PERJURY

Count I through IV have previously passed this way, we will

begin with count V.

COUNT V: PERJURY

That, on or about July 21, 1987, while under oath before

district Justice Samuel Magaro, Mr. Stanley Kitner knowingly

lied in the case of John Cheppa v. West Hanover Township, case

number TA 87-427. Mr. Kitner (while carrying out the direc-

tives of acontract) told the court that the dirt he used to backfill

over a storm drain was township soil when he knew that soil

was the private property of Mr. Cheppa and he did not believe

his testimony to be true.

al8

APPENDIX G

COUNT VI: PERJURY

That, on or about March 28, 1988, while under oath at an

Arbitrator’s Hearing, Mr. Stanley Kitner knowingly lied in the

case of John Cheppa v. West Hanover Township, case number

3171 5 1987, Mr. Kitner (while carrying out the directives of a

contract) told the court that the dirt he used to backfill over a

storm drain was township soil when he knew that soil was the

private property of Mr. Cheppa and he did not believe his

testimony to be true.

That, on or about July 21, 1987, while un-der oath before

district Justice Samuel Magaro, Mr. Stanley Kitner knowingly

lied in the case of John Cheppa v. West Hanover Township, case

number TA 87-427. Mr. Kitner (while carrying out the direc-

tives of acontract) told the court that the dirt he used to backfill

over a storm drain was township soil when he knew that soil

was the private property of Mr. Cheppa and he did not believe

his testimony to be true.

COUNT VII: FALSE SWEARING

That, on or about March 28, 1988, while under oath at an

Arbitrators Hearing, Mr. Stanley Kitner knowingly lied in the

case of John Cheppa v. West Hanover Township, case number

3171 5 1987, Mr. Kitner (while carrying out the directives of a

contract) told the court that the dirt he used to backfill over a

storm drain was township soil when he knew that soil was the

private property of Mr. Cheppa and he did not believe his

testimony to be true.

COUNT VIL: FALSE SWEARING

That, on or about July 13, 1988, while under oath before

Judge Clarence C. Morrison of the Dauphin County Court, Mr.

a 19

APPENDIX G

Stanley Kitner knowingly lied in the case of John Cheppa v.

West Hanover Township, case number 3171 5 1987. Mr. Kitner

(while carrying out the directives of a contract) told the court

that he did not have the contract which would have told him

what dirt to use in backfilling over a newly installed storm

drain and he did not believe his testimony to be true.

All of which were against the peace and dignity of the

commonwealth of Pennsylvania and contrary to the Act of

assembly, or in violation of 18 ss 4902, 4903 of the Act OF Pa.

Crimes Code 1972.

I ask that a summons be issued and that the accused be

required to answer the charges I have made. I swear toor affirm

the within complaint upon my knowledge, information and

belief, and sign it on May 20, 1991, before NOTARY PUBLIC.

John Cheppa

Signature of Affiant

Personally appeared before me on May 20, 1991, the affiant

above named who. being duly sworn (affirmed) according to

law, signed the complaint in my presence and deposed and said

that the facts set forth therein are true and correct to the best

of affiant’ knowledge, information and belief.

Patricia Lamb K

Issuing Authority

a20

APPENDIX H

CRIMINAL COMPLAINT (PRIVATE)

C 36263

District Attorney’s Office B

( ) Approved

(__X_) Disapproved because: Portions of defendant’s testi-

mony that is in controversy, even if knowingly false, was not

material to outcome of proceedings.

11/29/90 R. A. Lewis

(Issue Dated} (Signature)

COMMONWEALTH OF PENNSYLVANIA

VS.

Defendant: Stanley Kitner 899

Piketown Road

West-Hanover Township

Dauphin County, Penna.

John Cheppa

(Name of Affiant)

of____ Private Individual

residing at 7176 Catherine Dr., Hbg. Pa

do hereby state under oath or affirmation, to the best of my

knowledge, information and belief:

1) I accuse the above named defendant, who lives at the

address set forth above, with violating the penal laws of the

Commonwealth of Pennsylvania at the Dauphin County Court-

house, Harrisburg, Pennsylvania In Dauphin County on or

about 7-13-88

2) The acts committed = the accused were:

es r—t™™r™C*‘=eé=

a 21

APPENDIX H

Count I

Perjury: Did intentionally and knowingly, in an official

proceeding, make a false statement, to wit: That it was raining

on August 5, 1983 at and before he was present on John

Cheppa’s property at 7176 Catherine Drive, West Hanover

Township, Dauphin County, Pennsylvania, while under oath

or equivalent affirmation, when the statement was material

and he did not believe i t to be true.

Count II

Perjury: Did intentionally and knowingly, in an official

proceeding, to wit: a hearing or trial before the Honorable

Clarence C, Morrison, make a false statement, to wit: That he

went to the property of John Cheppa at 7176 Catherine Drive,

West Hanover Township, Dauphin County, Pennsylvania on

August 5, 1983 for the purpose of unblocking waters from

Catherine Drive at or near the said property of John Cheppa

while under oath or equivalent affirmation, when the state-

ment was material and he did not believe it to be true.

Count III

False swearing: Did intentionally and knowingly, make a

false statement, to wit: That it was raining on August 5, 1983

at and before he was present onJohn Cheppa’s property at 7176

Catherine Drive, West Hanover Township, Dauphin County,

Pennsylvania, while under oath or equivalent affirmation,

when he did not believe the statement to be true in that the

falsification occurred in an official proceeding, to wit: a hearing

before the Honorable Clarence C. Morrison, Judge of the

Dauphin County Court of Common Pleas.

a22

APPENDIX H

Count IV

False swearing: Did intentionally and knowingly, make a

false statement, to wit: That he went to the property of John

Cheppa at 7176 Catherine Drive, West Hanover Township,

Dauphin County, Pennsylvania on August 5, 1983 for the

purpose of unblocking waters from Catherine Drive at or near

the said property of John Cheppa while under oath or equiva-

lent affirmation, when the statement was material and he did

not believe it to be true.

All of which were against the peace and dignity of the

commonwealth of Pennsylvania and contrary to the Act of

assembly, or in-violation of 18 55 4902, 4903 of the Act of Pa.

Crimes Code 1972.

I ask that a summons be issued and that the accused be

required to answer the charges I have made. I swear toor affirm

the within complaint upon my knowledge, information and

belief, and sign it on November 20, 1991, John Cheppa.

SPECIAL AFFIDAVIT WAS MADE AND SIGNED ON THE

ABOVE MENTIONED DATE.

PTS ET Mea AP RL hee TEES

ee ee

a 23

APPENDIX J

STATE COURTS; APPEAL; CERTIORARI

Final judgments or decrees rendered by the highest court of

a State in which a decision could be had, may be reviewed by the

Supreme Court as follows:

(1) By appeal, where is drawn in question the validity of a

treaty or statute of the United States and the decision is

against its validity. (2) By appeal, where is drawn in question

the validity of a statute of any state on the ground of its being

repugnant to the Constitution, treaties or laws of the United

States, and the decision is in favor of its validity.

(3) By writ of-certiorari, where the validity of a treaty or

statute of the United States is drawn in question or where the

validity of a State statute is drawn on the ground of its being

repugnant to the Constitution, treaties or laws of the United

States, or where any title, right, privilege or immunity is

specially set up or claimed under the Constitution, treaties or

statutes of, or commission held or authority exercised under,

the United States. June 25, 1948, c. 646, 62 Stat. 929.

a24

APPENDIX K

UNITED STATES CONSTITUTION

AMENDMENT V

No person shall be held to answer for a capital, of otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia when in actual service in time of War or public

danger; nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private property

be taken for public use, without just compensation.

ecicccirinuiiililnniisiiasiaieie: i ee

eee

we bea

a 25

APPENDIX L

UNITED STATES CONSTITUTION

AMENDMENT XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privi-

leges or immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty or property,

without due process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the

several States according to their respective numbers, counting

the whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for the

choice of electors for President and Vice-President of the

United States, Representatives in Congress, the Executive and

Judicial officers of a State, or the members of the Legislature

thereof, is denied to any of the male inhabitants of such State,

being twenty-one years of age, and citizens of the United

States, or in any way abridged, except for participation in re-

bellion, or other crime, the bases of representation therein

shall be reduced in the proportion which the number of such

male citizens shall bear to the whole number of male citizens

twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in

Congress, or elector of President and Vice-President, or hold

any office, civil or military, under the United States, or under

a26

APPENDIX L

any State, who, having, previously taken an oath, as a member

of Congress, or as an officer of any State, to support the

Constitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given aid or

comfort to the enemies thereof. But Congress may by a vote of

two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States,

authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing insurrection

or rebellion, shall not be questioned. But neither the United

States nor any State shall assume or pay any debt or obligation

incurred in aid of insurrection or rebellion against the United

States, or any claim for the loss or emancipation of any slave;

but all such debts, obligations and claims shall be held illegal

and void.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

sibilities

a 27

APPENDIX M

PENNSYLVANIA RULES OF CRIMINAL PROCEDURE

RULE 133. APPROVAL OF PRIVATE COMPLAINTS

a) When the affiant is not a law enforcement officer and the

offense(s) charged include(s) a misdemeanor or felony which

does not involve aclear and present danger to any person or to

the community, the complaint shall be submitted to an attor-

ney for the Commonwealth, who shall approve or disapprove

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 file the complaint with a judge of a

Court of Common Pleas for approval or disapproval;

(3) Does not approve or disapprove within a reasonable

period of time, the affiant may file the complaint on a separate

form with the issuing authority, noting thereon that a com-

plaint is pending before an attorney for the Commonwealth.

The issuing authority shall determine whether a reasonable

period has elapsed, and, when appropriate, shall defer action to

allow the attorney for the Commonwealth an additional period

of time to respond.

a28

APPENDIX N

PENNSYLVANIA RULES OF CRIMINAL PROCEDURE

RULE 134. ISSUANCE OF PROCESS

PURSUANT TO COMPLAINT

(a) In any proceeding initiated by complaint, the issuing

authority shall ascertain and certify on the complaint that:

(1) The complaint has been properly completed and executed;

(2) There is probable cause for the issuance of process, in the

form of an affidavit; and

(3) When prior submission to an attorney for the Common-

wealth is required, that an attorney has approved the com-

plaint.

(b) Upon ascertaining the above matters, the issuing author-

ity shall:

(1) Accept the complaint for filing; and

(2) Issue a summons or warrant of arrest as the case may be.

2558 ES en ink cr ade!

APPENDIX P

18 Pa. C.S.A. ss 4902 FALSIFICATION

AND INTIMIDATION

Perjury

(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 defence that the declarant mistakenly believed the falsi-

fication to be immaterial. Whether a falsification is material in

a given factual situation is a question of law.

tion under this section that the oath or affirmation was admin-

istered or taken in an irregular manner or that the declarant

was not competent to make the statement. A document pur-

porting to be made upon oath o: affirmation at any time when

the actor presents it as being so verified shall be deemed to have

been duly sworn or affirmed.

(d) Retraction. - No person shall be guilty of an offense under

this section if he retracted the falsification in the course of the

proceeding in which it was made before it became manifest that

the falsification was or would be exposed and before the

a30

APPENDIX P

falsification substantially affected the proceeding.

(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 alter-

native 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. re

(f) Corroboration. - In any prosecution under this section,

except under subsection (e) of this section, falsity ofa statement

may not be established by the uncorroborated testimony of a

single witness.

1972, Dec. 6, P.L. 1482, No. 334, ss 1, effective June 6, 1973.

18 Pa. ss 4903

(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.

a 31

APPENDIX P

(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.

Section 4902(c) through (f) of this title (relating to perjury)

applies to this section.

1972, Dec. 6, P.L. 1482, No. 334, ss 1, effective June 6, 1973.

a32

APPENDIX Q

PARAGRAPHS 8 AND 9 OF APPELLANTS FIRST COM-

PLAINT TO THE TRIAL COURT WHERE THE U.S. CONSTI-

TUTION WAS RAISED.

8. Rule No. 133 of the Pennsylvania Rules of Criminal

Procedure as applied to this instant case is contrary to the

United States and State of Pennsylvania Constitutions in that

it is arbitrary and capricious by placing in the hands of one

person complete control, with no standards, tests, elements or

criteria to be followed, whether or not a criminal act can be

prosecuted by a private individual.

9. The District Attorney’s refusal to approve the Private

Criminal Complaint in question is contrary to the Constitu-

tions of the United States and Pennsylvania in that it is

arbitrary and capricious and does not provide equal protection

of the laws and is discriminatory as to Affiant.

EN et ty oS oe

a 33

APPENDIX R

IN THE COURT OF COMMON PLEAS

DAUPHIN COUNTY, PENNSYLVANIA

NO. 12 M. D.

COMMONWEALTH OF PENNSYLVANIA

STANLEY KITNER

AND NOW, comes Richard A. Lewis, District Attorney of

Dauphin County, by Deborah E. Curcillo, Senior Deputy Dis-

trict Attorney, who, in answer to Affiant’s Petition, responds as

follows:

1. Admitted.

2. Admitted.

3. Admitted.

4. Admitted.

5. Admitted.

6. Denied. The district attorney’s Office did not abuse its

discretion in failing to approve the private complaint. Mr.

Cheppa has been pursuing this claim since 1985 (sic) there is

no basis to his claim, and the information that he has provided

to the District Attorneys’s Office does not establish, beyond a

reasonable doubt, criminal charges against Mr. Kitner.

7. The Commonwealth has copied a letter from the District

Attorney to Mr. Cheppa explaining the reasoning behind disp-

proving the private criminal complaint.

8. Rule 133 of the Pennsylvania Rules of Criminal Procedure

Apply to the discretion by the District Attorney’s Office in

approving or disapproving private criminal complaints. The

tiie aaa nnsene enim

a34

APPENDIX R

prosecutor is under no compulsion to prosecute every alleged

offender, and decision to prosecute or not is a matter within his

discretion, subject to review by Court of Common Pleas, Com-

monwealth v. Malloy, 304 Pa. Super. 297, 450 A.2d. 689 (1982).

Mr. Cheppa has submitted a private criminal complaint to the

District Attorney’s office for approval, the District Attorney

properly refused to prosecute, the District Attorney acted

properly in disapproving the private criminal complaint based

on the finding that the complainant would not be able to sustain

the conviction on the charges proposed. The District Attorney

has reviewed the material provided to this office by Mr. Cheppa.

The falsification that Mr. Cheppa is claiming by Mr. Kitner, a

township employee, does not affect the material outcome or the

course of the proceedings.

9. Denied, the District Attorney's Office has discretion to

approve or disapprove private criminal complaints. The Dis-

trict Attorney has acted completely within his authority and in

accordance with the law and did not abuse his discretion in

refusing to prosecute the private criminal complaint filed by

Mr. Cheppa.

WHEREFORE, the Commonwealth respectfully requests

this Honorable Court to disapprove the private criminal com-

plaint against Mr. Stanley Kitner.

Richard A. Lewis District Attorney ~

Deborah E. Curcillo Senior Deputy D.A.

a 35

APPENDIX R

LETTER OF ITEM 7 IN D.A.’S ANSWER:

October 17, 1990

Dear Mr. Cheppa:

Kindly excuse my delay in writing to you regarding your

complaint against Mr. Kitner.

-This Office has completed its review of the various investiga-

tive materials and documents you provided. Unfortunately, we

do not agree with your allegation that Mr. Kitner committed

perjury.

A person commits perjury if, in an official proceeding, he

makes a false statement under oath when the statement is

material and he does not believe it to be true. Under Pennsy!-

vania law, the falsification is material if it could affect the

course or outcome of the proceedings.

It is our position that Mr. Kitner’s explanation, even if

knowingly false, was not material to the outcome of the pro-

ceedings.

| have made arrangements with our County detectives to

deliver your papers and other material to you within the next

several days.

Thank you.

Richard A. Lewis

District Attorney

a36

APPENDIX S

DISTRICT ATTORNEY STATES THAT MEMORANDUM

FILED WITH THE TRIAL COURT WAS NOT EX PARTE

BECAUSE CHEPPA SHOULD HAVE OBTAINED A COPY

OF THAT MEMORANDUM FROM THECLERK OF COURTS.

Cheppa argues that the trial court errored by accepting ex

parte communications from the district attorney. This argu-

ment is completely meritless, because the Appellant had actual

notice that a memorandum was going to be filed, and the

memorandum was filed and docketed with the court. Cheppa

even acknowledges that in the Order dated the 26th day of

February. 1991, Judge Schaffner required the District Attorney's

Office to file a memorandum to provide the court with sufficient

data to be able to review the matter. Appellant’s (brief at 27)

pursuant to the order, the Commonwealth did file a memoran-

dum in the case at No. 12 M.D. 1991. The memorandum was

filed on March 15, 1991, as is evidenced by the Clerk of Courts

docket entry sheet. (see R.R. at 2a) Contrary to the assertion

that an ex parte communication occurred, Cheppa had actual

notice that a memorandum would be filed by the Common-

wealth. Why Cheppa failed to ascertain whether a memoran-

dum had, in fact, been filed is beyond the scope of the

Commonwealth’s argument. Regardless of Cheppa’s failure,

the trial court accepted no ex parte communications from the

district attorney. Therefore, this issue is meritless and the

order of the trial court should be affirmed.

a 37

APPENDIX T1

WITNESS TO KITNER-CHEPPA AGREEMENT JOHN

ROBINSON JR. - ATTORNEY

May 9, 1991

To whom it may concern:

On August 5, 1983, the West Hanover Township Road Crew

came to the Cheppa property at 7176 Catherine Drive to

remove the soil from the Cheppa property. At that time the

Township authorities in charge - Robert Landon, supervisor

and Stanley Kitner, foreman - agreed that they would not enter

the Cheppa property and also agreed that the soil placed by

Cheppaon the township’s right-of-way belonged to Mr. Cheppa

and that the Road Crew would remove that fill from the right-

of-way and place it upon the Cheppa property.

a38

APPENDIX T2

MR. KITNER TESTIFIES THAT HE USED THE SOIL OFF

OF THE CHEPPA PROPERTY TO BACKFILL OVER THE

NEWLY INSTALLED STORM DRAIN PIPE, AUGUST 26,

1986, PP. 103 - 104:

Mr. Kitner also testified that the soil which he had previ-

ously removed from the right of way belonged to Mr. Cheppa:

Q. Now, you testified, I think, correct me if I am wrong, that

there was soil that was on Mr. Cheppa’s property that you did

push over into the ditch, correct?

A. That’s correct. It was out on the driveway in the beginning.

Q. Correct. And some of that soil was soil that had been on the

right-of-way in 1983, correct?

_A. What was your question?

Q. Some portion of that soil that you pushed into the ditch had

been on the right-of-way in 1983, in August, correct?

A. That’s exactly right. He didn’t have permission to put it

there.

Q. But that was soil that he had placed there? It was his soil?

A. And he put it in my right-of-way.

Q. So, you took his soil and then pushed it back up into his

property?

A. To get the water off the road.

a 39

APPENDIX T2

Q. Fine. And that then is Mr. Cheppa’s soil that was on the

property that you pushed into the ditch?

A. Exactly right, sir, so we could back up over there to get

more fill in.

[ N.T. p. 103, Ls. 11-25; p. 104, Ls.1-11.]

a40

APPENDIX T3

MR. KITNER TESTIFIES THAT HE DID HAVE THE

CHEPPA CONTRACT, THAT HE STUDIED THAT CON-

TRACT AND VOTED ON IT AS TOWNSHIP SUPERVISOR.

AUGUST 26, 1986, p. 105 & 115:

Q. Mr. Kitner, | am going to show you acopy of the agreement

that was made between — it says between the Board of

Supervisors of West Hanover Township and John Cheppa,

right? See where I am reading?

A. Go ahead.

Q. And you are one of those supervisors, aren’t you?

A. Now, yes.

Q. And you do remember reviewing this, don’t you?

A. Yes.

Q. And I assume that the Board took a vote on that, correct?

A. I would say.

Q. And you voted in favor of it?

A. Yes.

Q. And you knew, didn’t you, that you would be the one that

would actually be doing the work, didn’t you?

A. That’s right.

Q. And I assume, am correct, sir, that you carefully reviewed

the plan of proposed drainage facilities as part of

a 41

the plan?

A. I might tell you — I have that copy.

Q. You have the original?

A Yes, indeed.

Q. And you studied it carefully?

A. Yes, indeed.

[1986 case; N.T. P. 105, Ls. 17-25, P. 106, Ls, 1-19]

Q. I want to show you again the agreement that was signed

in March of 1985. Now, I am directing your attention to

Paragraph S and the portion that appears on Page 3. Again, you

have told me that you reviewed this carefully before you signed

it, right?

A. Right.

(N.T. p. 115, Us 10-15.)

a42

APPENDIX T4

MR. KITNER TESTIFIES THAT HE DID NOT HAVE A

COPY OF THE CHEPPA CONTRACT AND DID NOT KNOW

WHERE TO GET THE DIRT TO FILL OVER A PIPE FROM.

JULY 13, 1988, PP. 62 - 64:

Q. Now, who in the township, Mr. Kitner, informed you what

your obligations were as to filling the ditch that was going to be

constructed and drainage pipe installed, who in the township

told you what to do?

A. The supervisors at the time.

Q. Did they give you a copy of the contract so that you would

know what you were supposed to do? Did they give you a copy

of the contract?

A. No.

Q. How did you know where you were to get the fill?

A. They told me.

[1988 case; N.T. P. 62, Ls. 15-25]

Q. But Mr. Kitner, the question is where were you to get the

fill to fill the ditch?

A. After we put the pipe in and pushed this fill over there, we

were to get the fill from road work we had, we were doing the

rest of the season off the stock pile.

Q. You were supposed to do what paragraph 5 said, isn’t that

correct?

A. We did.

Q. Did you know that is what you were supposed to do?

———eEE__

a 43

APPENDIX T4

A. We did haul fill.

Q. Did you know that was what you were supposed to do?

A. I didn’t have that agreement.

Q. You didn’t know where you were supposed to get the fill,

isn’t that true?

A. But we had to —

Q. Isn’t it true?

A. Yes, but we still had to move that fill.

Q. Isn’t it true you didn’t know what the contract said were

you were to get the fill?

A. I didn’t have no contract.

Q. You didn’t have the contract. ...

[1988 case; N.T. P. 63, Ls. 18-25; P. 64, Ls. 1-13]

APPENDIX T5

) 7,199

To whom it may concern:

I, Metro Lynn, do hereby state that I witnessed the

hearing before District Justice Samuel Magaro on July 21,

1987, in the case of John Cheppa Vs. West Hanover Township,

Ta 87-427 and it is further stated that at that hearing, Mr.

Stanley Kitner testified that the dirt from the right-of-way in

front of the Cheppa property used to cover the pipe beneath the

Cheppa property belonged to West Hanover Township.

Metro Lynn

a 45

APPENDIX T6

MAY 3, 1991

To whom it may concern:

I, Lynn Uria, do hereby state that I witnessed the

hearing before the Board of Arbitrators on March 28, 1988, in

the case of John Cheppa vs. West Hanover Township and it is

further stated that at that hearing Mr. Stanley Kitner stated

that the dirt from the right-of-way in front of the Cheppa

property which was used to cover over a pipe beneath the

Cheppa property belonged to West Hanover Township.

Lynn Uria

a46

APPENDIX T7

MR. KITNER TESTIFIES THAT HE CAME TO THE

CHEPPA PROPERTY BECAUSE OF HIS DUTY UNDER

THE LAW AND HEAVY RAIN AND FLOODING AND THAT

HE AND CHEPPA HAD AN AGREEMENT ABOUT THE

SOIL FROM THE RIGHT-OF-WAY, JULY 13, 1888.

PERJURED TESTIMONY:

From the Transcript of Case No. 3171 5, 1987 Heard by

Clarence C. Morrison, Judge, July 13, 1988, under direct

examination.

PAGE 43

Q What is your elected capacity?

A Township supervisor.

Q __— Have you otherwise held any employment with West

Hanover Township prior to being elected supervisor?

A _ Yes, I have.

Q ~What is that?

A _ I have been employed with the township for 30 plus

years and I| have been road foreman for 24 years.

Q___ Asroad superintendent what are your general duties?

A Makesure that the roads are in the best of shape as far

as building and materials that we have.

Q Over thecourse of your 24 years of experience have you

become aware of what your responsibilities are under the

terms of the Second Class Township Code?

APPENDIX 17 aliel

A Yes.

Q -~Withrregard particularly to roads. What is your respon-

sibility.

A ___ Toroads we are to have the ditches open the best we can

and all pipes and drainages open.

Q __~ With regard to the roads, just roads first of all, what is

your responsibility?

A Keep the roads clear.

PAGE 44

Q___ And to do what else, maintain them?

A Maintain them.

Q __ Do you know if that provision is found in the Second

Class Township Code?

A Yes, it is.

Q =‘ Mr. Kitner, I show you acopy of a page from the Second

Class Township Code. You just indicated that your responsibili-

ty as you understand it to be was to repair and maintain the

roads. Is that correct?

A Correct.

Q __— Without necessarily reading it, read it to yourself. Does

that section of the code that you are looking at right now set

forth that responsibility?

A Yes.

Qs And at the bottom of that section there is a reference to

a section number. Would you identify that for the Court?

a48

APPENDIX T7

A 1110.

Q___s‘That is found in volume 53 of Purdon’s Statutes,

section number what?

A 66110.

PAGE 46

Mr. Cleckner: Your Honor, that wouldn’t change whether or

not they supplied the fill which is the issue before this Court.

Mr. Wass: I submit it does change it.

THE COURT: All right. We are going to allow some limited

exploration of that matter. Of course we have some under-

standing of what those responsibilities are, but to the extent

you think it is necessary to put that on the record, Mr. Wass, we

are going to allow it. f

Q = Mr. Kitner, with regard to keeping open ditches, have

I just shared with you a copy of the provision of the Second Class

Township Code with which you are familiar?

A Yes.

Q __s Does that section set forth your re-sponsibility regard-

ing ditches?

PAGE 47

A Yes.

Q What is the Purdon’s Statute reference, 53 Purdon’s

Statute, what section number?

A 66152.

———————ax&x«xwvxaxa-™-”-» =

a 49

APPENDIX T7

Q Now, let me direct your attention, Mr. Kitner, to the

date of August 5, 1983. Would you indicate to the Court

whether or not you received a complaint funneled to you

through the township administration office?

A At that date we had heavy rain and we got a call at the

garage from the municipal building that the water was being

blocked up on Catherine Drive.

Q When you got that complaint, what did you do?

A _ I answered the complaint.

Q Specifically, did you go out to the location?

A __ I went to the location, found water was being blocked

up, found a lot of dirt dumped on our right-of-way, some of the

black top, our cart way.

Q__ Leads of fill?

A Leads of fill.

Q _— Did youknow who the owner of the property was where

most of the fill was located?

A Yes, I did.

Q = That was Mr. Cheppa?

A Mr. Cheppa.

PAGE 50

Q __— Getting back to August 5, 1983. When you observed the

quantity of fill on the roadway and some in the ditch, what did

you determine to do?

a50 -

APPENDIX T7

A _ Iradioed, dispatched a township crew from our garage

and they brought 2 trucks and a front end loader there.

Q Why?

A We were going to get rid of the water off the highway.

Q ‘What was happening with the water?

A _ Blocked up the gutter which would have blocked up the

pipe and into peoples’s basements.

Q_ With regard to this ditch, what [that] was the drainage

swale you have now called a ditch?

A Correct. He created the problem. He filled it shut.

PAGE 51

Q But that passageway had debris in the bottom of it,

that is what you are saying?

A _ Right.

Q __ Right in the location of where the swale was and should

have been?

A Absolutely. :

Q = That was causing the back up of water?

A _ Absolutely.

Q = Onto the roadway?

ODPrODHO >

a 51

APPENDIX T7

Yes.

So you decided to remove the soil? A Correct.

What were the weather conditions that day?

Raining, heavy rain.

When you first went to that project, how many pieces

of equipment did you take with you?

I went by myself. Then I dispatched a front end loader

and 2 trucks.

Dump trucks?

Two dump trucks.

What was your purpose in calling the dump trucks and

front end loader?

A Our purpose was, we were going to haul that dirt away.

PAGE 52

Q Why were you going to haul it away?

A _ To let the water down the ditch where it belongs.

PAGE 53

Q =‘ That was your initial effort?

A Correct.

Q ‘Your initial option. Did you have another option avail-

a52

APPENDIX T7

able to you?

A Myother option was, it was pouring down rain and Mr.

Cheppa came out there with his tractor and every time we

wanted to work he moved his tractor in front of us. In the

meantime (I wasn’t supervisor at that time) one of the super-

visors and state police came, and said we had to get rid of it.

Q ___sIt was raining?

A _ It was raining.

Q Youdidn’t move it to its stockpile, what did you do with

it?

A — We pushed it up over the edge of the bank.

Q___ Right onto that triangular piece at the end of Mr.

Cheppa’s property?

A Correct.

Q =~ Why did you do that?

A _ It was pouring down rain and to the best efforts of the

township and road and state police when you had put it there

that we wouldn’t have everything else all messed up with mud,

rock and dirt.

PAGE 54

Q ___siIt was raining. You wanted to get the job done quickly?

A Correct.

Q You didn’t want to mess up the other township roads

with mud, is that what your point was?

a 53

APPENDIX T7

A That is what I am saying.

Q Instead of stockpiling it at the township location, you

pushed it right on Mr. Cheppa’s property?

A Right.

PAGE 57

Q Again, Mr. Kitner, going back to the date of August 5,

1983, when you were out there in the presence of Mr. Cheppa,

did you hear him state on his direct examination that you

insisted that he prepare and sign some sort of agreement.

A I heard him say that, but I don’t recall of that. It as

pouring down raining. We wanted to get the job done and get

the water off the highway

Q Doyou recall at all whether Mr. Cheppa signed and gave

you any form of agreement?

A No. If it would be true, I would like to see it.

a54

APPENDIX T8

OPENING STATEMENTS IN SUPPORT OF

PERJURUS TESTIMONY:

From the Transcript of Case No. 3171 5, 1987 Heard by

Clarence C. Morrison, Judge - July 13, 1988

PAGE 6

A lot of fill had been placed out on the Township’s right-of-

way of Catherine Drive and some of it, in fact, out to the paved

cart way, and on a day when it was raining quite heavily

complaints were received that the water was backing up. There

was some danger neighboring basements might get flooded

with water backup...

PAGE 7

The issue is, Your Honor, that the soil that the Township

removed from a public right-of-way or from the ditch right-of-

way, it had authority to do under the Second Class Township

Code. It could have hauled it away and stock piled it. The

Township left it there and stock piled it and then later on when

the responsibility of filling the ditch in arose in part, the ditch

was filled from that stock pile fill that had originally been

removed from the township property. We do claim credit for it,

Your Honor.

CLOSING STATEMENTS IN SUPPORT OF PERJURUS

TESTIMONY:

From the Transcript of Case No. 3171.5, 1987 Heard by

Clarence C. Morrison, Judge - July 13, 1988

PAGE 10

Because of the rain and the conditions that existed on that

day the necessity to move quickly) that fill, instead, was

a 55

APPENDIX T8

stockpiled on the property of Mr. Cheppa, and was utilized

later.

We referenced in our testimony provisions of the Township,

Second Class Township Code, which imposed these responsi-

bilities on the Township. In fact, the one section we referred to

with regard to keeping clear ditches speaks of a property owner

who does cause a ditch to be blocked or filled up, can be guilty

of a criminal offense, and we submit that is exactly what

occurred on August 5, 1983, when Mr. Kitner and his road crew

went out and moved that fill. Having found fill on Township

property, it become Township fill. It was not any longer Mr.

Cheppa’s fill. He had brought that fill to that location. It is true.

But having deposited it on a Township roadway, it is no longer

his fill and it is the Township’s to do with what it wishes, and

as I say, it could have been stock piled it on its own property or

as it did, it could have stock piled it on Mr. Cheppa’s property.

by: Mr. Carl Wass, Esquire

3631 North Front Street

Harrisburg, Penna.

Attorney for Mr. Kitner

APPENDIX T9

WITNESSJOHN ROBINSON’S STATEMENT OF NO RAIN

ON AUGUST 5, 1983 AT THE CHEPPA PROPERTY:

January 990

To whom it may concern:

[ was at the Cheppa property on August 5th, 1983, arriving

there in the early afternoon. There was no evidence of rain

when I arrived, there was no rain while I was there and there

was no rain while the township road crew cleaned the right-of-

way in front of Mr. Cheppa’s property.

John J. Robinson Jr.

APPENDIX T10

WITNESS JESSIE LINKERT, STATEMENT OF NO RAIN

AT THE CHEPPA PROPERTY ON AUGUST 5, 1983:

Cheppa:

Good morning Jessie, do you mind giving me about ten

minutes of your time? I would like to talk to you about the

events that led up to the road crew coming out to my property

on August 5th, 1983.

Linker:

What’s this for?

p.l.

Cheppa:

For my records, | thought I would give you a chance to tell

your version.

Linker:

I don’t know how much I can remember; you'll have to jog my

memory, but, yah, that’ll be OK.

p.2

Q. Did the road crew come to remove the fiil from my

property?

A. Yah.

Q. I have several photographs here. This one, number one,

can you identify the people there/ Left to right.

A. That’s Quenton Hetrick, Stan Kitner, that’s me, | don’t

know who that is.

p.3.

Q. What were the weather conditions that day? Was it

raining? Or was it dry?

A. It was clear that day; it was dry.

ad58

APPENDIX T10

p.4.

Q. What time did the road crew arrive?

A. It was afternoon, early afternoon.

Q. That may be when they left, but when did they get there?

A. It was afternoon; they were only there for about an hour.

Q. Remember? We had to wait for the State Police and then

my Lawyer and all. I have recorded that they arrived at 11:40

A.M. Is that when they came?

A. Yah, Yah, that’s right.

p.6.

Q. Now the question. As you can see, the township removed

the fill from the right-of-way where the street is going uphill.

Would removing that fill have any effect on the water entering

the culvert down below? In other words. Did the fact that the

fill was removed from the right-of-way prevent any flooding?

A. No. That would have no effect on it. But if the street ever

flooded or not, I don’t know. I would have to be there when it

flooded to see it, | was never there when it rained. If] was to go

out there on a rainy day I could tell you if the flooding was

caused by fill on your property but I would have to be a licensed

engineer, I’m not a licensed engineer.

APPENDIX T11

OFFICIAL WEATHER OBSERVATIONS FROM THE NA-

TIONAL OCEANIC AND ATMOSPHERIC ADMINISTRA-

TION, EXTRACTED FROM THE CLIMATIC DATA SHEET

FOR AUGUST 5, 1983:

LISTED TIMES ARE IN EASTERN STANDARD TIME.

TRUE TIME IS ONE OUR LATER, BECAUSE ON AUGUST

5TH. THE AREA WAS ON EASTERN DAYLIGHT SAVINGS

TIME.

4:45 P.M. Thunder began.

5:00 P.M. Rain measurement: trace (unmeasurable).

5:51 P.M. Thunder overhead, moving east. Lighting cloud to

cloud, Precipitation, very light.

6:00 P.M. Rain measurement: .11 inches.

6:10 P.M. Thunder ended.

6:15 P.M. Rain ended.

7:00 P.M. Rain measurement: .01 inches.

a60

APPENDIX T12

WITNESS PAUL CARL STATEMENT AS TO THE AP-

PROXIMATE TIME THE TOWNSHIP ROAD CREW LEFT

THE CHEPPA PROPERTY:

pp. i- 2. Q. I see. OK. What time did the road crew leave the

Cheppa property?

Q. Do you have any ides?

A. I really— it was in the afternoon towards evening, | really

don’t know.

Q. OK. Did you work any overtime that day? Do you remem-

Q. So then, you must have went home at the regular time.

Right?

A. Right.

Q. And your quitting time?

A. 3:30 [P.M.].

a 61

APPENDIX T13

MR. KITNER’S TRUTHFUL RECOLLECTION OF OTHER

EVENTS GIVEN IN TESTIMONY ON JULY 13, 1988:

1. Employed by the township for more that thirty years.

2. The Cheppa property had been a drainage for the develop-

ment long before Cheppa bought the property.

3. Received a phone call at the Township garage from the

municipal building.

4. Went to the location and found a lot of dirt dumped on the

township right-of-way.

5. Went to the location alone.

6. Knew that the owner was Cheppa.

7. Saw a lot of fill on the Cheppa property.

8. Dispatched a township road crew.

9. Dispatched two dump trucks and a front-end loader.

10. Went to the Cheppa property to “haul that dirt away”.

11. Intent was to haul the dirt to the township stockpile.

12. State police was present.

13. Township supervisor was present.

14. Cheppa moved a tractor in front of the township road

crew.

a62

APPENDIX T13

15. Pushed the dirt from the right-of-way onto the Cheppa

property.

16. Cheppa ditch was curved which followed the old original

drain.

17. Observed that when looking from one end of the ditch to

the other you couldn’t see the other end.

18. Pushed the fill up over the edge of the bank.

19. The fill that was moved from the right-of-way was

brought there by Cheppa.

20. The fill that was moved from the right-of-way was placed

on the Cheppa property where Cheppa said to place it.

21. Removed the fill from the right-of-way during the course

of normal public duties.

22. Placed the fill right onto a triangular piece at the end of

Mr. Cheppa’s property.

APPENDIX T14

CRIMINAL PSYCHIATRIST STATES THAT KITNER

SUFFERED NO MEMORY LOSS DURING HIS TESTI-

MONY ON AUGUST 13. 1988:

September 18, 1989

To whom it may concern:

This letter is written for Mr. John Cheppa who consulted me

regarding an issue of great concern to him. Mr. Cheppa being

aware that | am a broad certified specialist in psychiatry asked

for a consultation to present his evidence and to determine if in

my opinion the discrepancies in certain testimony could be

explained via a simple memory loss.

Pursuant to this. I reviewed his records and it was clear that

he has a good deal of documents, photographs, and weather

reports involving the day in question. It would appear to me

that any discrepancies in one’s memory of that day for up to

three hours could not be explained simply on a memory loss

basis. This is because of the patchy and at the very least

suspicious nature of the loss of memory for the key points in

question.

[ agreed to submit this letter to Mr. Cheppa who hopes that

it will be helpful in obtaining a review by arepresentative of the

Attorney General’s Office since Mr. Cheppa is concerned that

Mr. Lewis, Dauphin County District Attorney, has not gone

over this with him in person.

Paul F. Phillips, M.D.

a64

APPENDIX U

US CONSTITUTION IN FIRST COMPLAINT, January 4,

1991.

8 Rule No. 133 of the Pa. Rules of Criminal Procedure as

applied to this instant case is contrary to the U.S. and the State

of Pa. Constitutions in that it is arbitrary and capricious by

placing in the hands of one person complete control, with no

standards, tests, elements or criteria to be followed, wether or

not a criminal act can be prosecuted by a private individual.

9 The District Attorney’s refusal to approve the Private

Criminal Complaint in question is contrary to the Constitu-

tions of the U.S. and Penna. in that it is arbitrary and capri-

cious and does not provide equal protection of the laws and is

dis-criminatory as to Affiant.

US CONSTITUTION IN EXCEPTIONS TO FIRST CASE

OF PERJURY, MAY 3, 1991. P. 3.

9. Said Opinion and Order is contrary to the United States

and State of Pennsylvania Constitutions in that it allows for

the arbitrary and capricious application of criminal law by

placing in the hands of one person complete control, with no

standards, tests, elements or criteria to be followed, over

whether or not a criminal act can be prosecuted by a private

individual.

10. Said Opinion and Order is contrary to the Constitutions

of the United States and Pennsylvania in that it is arbitrary

and capricious and does not provide equal protection of the laws

and is discriminatory as to the Affiant.

APPENDIX V

US CONSTITUTION RAISED IN AFFIANT’S BRIEF TO

EXCEPTIONS OF FIRST CASE OF PERJURY. JUNE7, 1991.

pp. 24 - 28.

EXCEPTIONS 9 AND 10 The Court errored in denying John

Cheppa equal protection of the laws.

Effective and fair enforcement of the penal statues in the

State of Pennsylvania is of significant public concern. It is of

significant concern for two reasons. First, to properly punish

those who violate the statutes. Second, to deter future viola-

tions of the penal laws, and as such, protect innocent citizens.

When the penal statutes are not being effectively and fairly

enforced the citizens of this Commonwealth generally, and

victims specifically, suffer losses, tangible and intangible,

liquidated and unliquidated. The Fifth Amendment to the

United States Constitution provides, in part, that no citizen

shall “..be deprived of life, liberty or property, without due

process of law.” It is common knowledge that the Fifth Amend-

ment is made applicable to the States through the Fourteenth

Amendment to the U.S. Constitution. It is also fundamental

that the guarantee of due process is absolute. Hammond

Packing Co. v. Arkansas, 212 U.S. 322, 29 5. Ct. 370.

John Cheppa, as a victim of the lies and falsehoods of Stanley

Kitner, a West Hanover Township employee, suffered substan-

tial losses. He lost attorney’s fees, court costs, time off work,

and other incidental expenses. He has also suffered emotional

stress and fatigue.

a66

APPENDIX V

The Pennsylvania State Legislature has placed in the hands

of the Dauphin County District Attorney not only the right, but

also the duty, to enforce the perjury and false swearing statute

against Stanley Kitner. As such, when a District Attorney and

Court are obviously acting under color of State law, arbitrarily

and unreasonably and capriciously refusing, without hearing

or argument, to prosecute a prima facie criminal case, they are

violating the U.S. Constitution’s due process clause.

An enormous amount of evidence was presented to the

District Attorney and the court which established a prima facie

criminal case against Stanley Kitner. Neither the District

Attorney nor the Court in its Opinion addressed the fact that

to obtain a conviction under “false swearing” the false testi-

mony need not be material. The failure to prosecute Mr. Kitner

constitutes an abuse of power which can not be tolerated.

Mountain Timber Co. v. Washington, 243 U.S. 219 37, Ct. 260.

The Fourteenth Amendment to the U.S, Constitution not

only mandates that the States (i.e. the District Attorney) abide

by the due process requirements, but it also forbids the District

Attorney from denying any “person within his jurisdiction the

equal protection of the law.” The District Attorney has arbi-

trarily and capriciously denied John Cheppa, an innocent

citizen-victim, protection under the penal laws of this Com-

monwealth. What greater evidence of a violation of the Equa!

Protection clause could be presented?

John Cheppa is a property owner, a tax-payer, a voter, an

adult, a college graduate, a teacher. Why should he not be

a 67

APPENDIX V

protected, as all other citizens, against criminal activity in

Dauphin County? The indiscriminate enforcement of thecrimi-

nal statutes is as much a violation of the Equal Protection

Clause to the victim as to the Defendant. He’sa victim of acrim-

inal act. He needs “protection from the law.” The District

Attorney must provide that protection “equally.” It is the Sta-

te, through its office holders, which has the duty of protecting

all citizens in the enjoyment of equality of rights. U.S. v.

Cruikshank, 92 U.S. 542.

The Equal Protection Clause of the Federal Constitution

means that the rights of all persons, not the majority or those

in favor with the government, must rest upon the same rule

under similar circumstances, and applies to the exercise of all

the powers of the State, not just some, which can effect the

individual or his property. Louisville Gas & Electricv. Coleman.

277 U.S. 32. The District Attorney must not be permitted to

arbitrarily pick and choose what private criminal complaints

he will approve and prosecute. This is a fundamental violation

of the U.S. Constitution. The law must be enforced equally

without regard to the race, color, creed, political party or

personality of the victim or the defendant, Louisiana er. rel.

Francis v. Resiveber, 329 U.S. 459.

The best available summary of the Equal Protection Clause

is found in Hill v. Texas, 316 U.S. 400. The United States

Supreme Court declared that equal protection under the law is

something more than an abstract right. It is acommand which

every citizen may demand.

a68

APPENDIX V

John Cheppa has the right and doesdemand that the District

Attorney close his eyes as to the identity of the victim and the

Defendant and prosecute the criminal charges against Stanley

Kitner. The failure to do so renders the Equal Protection

Clause of the Fourteenth Amendment an abstract right with no

practical meaning. When only those victims who are found in

favor with the District Attorney’s Office are afforded protection

and when those wrongdoers who are found in favor with the

District Attorney’s Office are not prosecuted, Justice is no

longer blind.

a 69

APPENDIX W

U.S. CONSTITUTION RAISED IN SECOND COMPLAINT

TO TRIAL COURT. JUNE 19, 1991. p.5:

9. That, rule No. 133 of the Pennsylvania Rules of Criminal

Procedures applied to this instant case is contrary to the

United States and State of Pennsylvania Constitutions in that

it is arbitrary and capricious by placing in the hands of one

person complete control, with no standards, tests, elements or

criteria to be followed, whether or not a criminal act can be

prosecuted by a private individual.

10. That, the District Attorney’s refusal to approve the

Private Criminal Complaint in question is contrary to the

Constitutions of the United States and Pennsylvania in that it

is arbitrary and capricious and does not provide equal protec-

tion of the laws and is discriminatory as to the Affiant.

APPENDIX X

CONSTITUTIONALISSUE RAISED IN AFFIANT’S MEMO-

RANDUM TO SECOND COMPLAINT TO TRIAL COURT.

JUNE 19, 1991. pp. 17 - 24.

The District Attorney’s denial of the Affiant’s Private Crimi-

nal Complaint also raises several Constitutional questions, for

not only did the District Attorney abuse his discretion regard-

ing Pennsylvania Law, but the D.A. has also abused his dis-

cretion regarding the United States Constitution.

Effective and fair enforcement of the penal statues in the

State of Pennsylvania is of significant public concern. It is of

significant concern for three reasons:

First, to properly punish those who violate the statutes.

Second, to deter future violations of the penal laws, and as

such, protect innocent citizens.

Third, to meet the demands of the United States Constitution

in granting to each citizen due process and equal protection

under the law and granting to each citizen -victim the privi-

leges established by the Fifth and Fourteenth Amendments.

When the penal statutes are not being effectively and fairly

enforced the citizens of this Commonwealth generally, and

victims specifically, suffer losses, tangible and intangible,

liquidated and unliquidated. The Fifth Amendment to the

United States Constitution provides, in part, that no citizen

shall “...be deprived of life, liberty or property, without due

process of law.” [t is common knowledge that the Fifth Amend-

a é]

APPENDIX X

ment is made applicable to the States through the Fourteenth

Amendment to the U.S. Constitution. It is also fundamental

that the guarantee of due process is absolute. Hammond

Packing Co. v. Arkansas, 212 U.S. 322, 29 5. Ct. 370.

John Cheppa, as a victim of the lies and falsehoods of Stanley

Kitner, a West Hanover Township employee, suffered substar

tial losses. He lost attorney’s fees, court costs, time off work

and other incidental expenses. He has also suffered emotiona

stress and fatigue.

The Pennsylvania State Legislature has placed in the hands

of the Dauphin County District Attorney not only the right, but

also the duty, to enforce the Perjury and False Swearing

statute against Stanley Kitner. As such, when a Distric

Attorney is obviously acting under color of State law, arbi

trarily and unreasonably and capriciously refusing, without

hearing or argument, to prosecute a prima facie criminal case,

he is violating the U.S. Constitution’s due process clause.

An enormous amount of evidence was presented to the

District Attorney v .ch established a prima facie, criminal

case against Stanley Kitner. The District Attorney in his

opinion failed to address the fact that to obtain a conviction

under “False Swearing” the false testimony need not be mate-

rial. The failure to prosecute Mr. Kitner constitutes an abuse

of power which can not be tolerated. Mountain Timber Co. v.

Washington, 243 U.S. 219, 37. Ct. 260.

The Fourteenth Amendment to the United States Constitu-

tion not only mandates that

a72

APPENDIX X

the States (i.e. the District Attorney) abide by the due process

requirements, but it also forbids the District Attorney from

denying any “person within his jurisdiction the equal protec-

tion of the law. The District Attorney has arbitrarily and cap-

riciously denied John Cheppa, an innocent citizen-victim, pro-

tection under the penal laws of this Commonwealth. What

greater evidence of a violation of the Equal Protection clause

could be presented?

John Cheppa is a property owner, a tax-payer, a voter, an

adult, a college graduate, a teacher. Why should he not be pro-

tected, as all other citizens, against criminal activity in Dau-

phin County? The indiscriminate enforcement of the criminal

statutes is a violation of the Equal Protection Clause to the

victim. He’s a victim of a criminal act. He needs “protection

from the law.” The only person who can provide that protection

is the District Attorney. The District Attorney must provide

that protection “equally.” It is the State, through its office

holders, which has the duty of protecting all citizens in the

enjoyment of equality of rights. U.S. v. Cruikshank, 92 U.S.

542.

The Equal Protection Clause of the Federal Constitution

means that the rights of all persons, not the majority or those

in favor with the government, must rest upon the same rule

under similar circumstances, and applies to the exercise of all

the powers of the State, not just some, which can affect the

individual or his property. Louisville Gas Electric Co. v. Cole-

man, 277 U.S. 32. The District Attorney must not be permitted

to arbitrarily pick and choose what private criminal compla-

ints he will approve and prosecute.

APPENDIX X

This is a fundamental violation of the U.S. Constitution. The

law must be enforced equally without regard to the race, color,

creed, political party or personality of the victim or the defen-

dant, Louisiana ex.rel. Francis_v. Resiveber, 329 U.S. 459.

The best available summary of the Equal Protection Clause

is found in Hill v. Texas 316 U.S. 400. The United States

Supreme Court declared that equal protection under the law is

something more than an abstract right. It is acommand which

every citizen may demand.

John Cheppa has the right and does demand that the District

Attorney close his eyes as to the identity of the victim and the

Defendant and prosecute the criminal charges against Stanley

Kitner. The failure to do so renders the equal Protection Clause

of the Fourteenth Amendment an abstract right with no prac-

tical méaning.

When only those victims who are found in favor with the

District Attorney's Office are afforded protection and when

those wrongdoers who are found in favor with the District

Attorney’s Office are not prosecuted, Justice is no longer blind.

The Fifth Amendment to the United States Constitution also

provides in part, that, “No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury,” The Fourteenth Amendment

provides in part, that, “No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of

the United States;”

a74

APPENDIX X

It is common knowledge that the Framers of the first Ten

Amendments to the United States Constitution had justice in

mind for the citizens. And, the Fifth Amendment was written

to protect the rights of the accused (before guilt was estab-

lished) as well as the rights of the citizens of the United States.

John Cheppa is a citizen-victim, and as such, enjoys the

Constitutional right of the Fourteenth Amendment prohibit-

ing the State of Pennsylvania from abridging his privilege of

bringing a prima facie case against Stanley Kitner to a Grand

Jury as prescribed by the Fifth and Fourteenth Amendments.

However, the Pennsylvania Criminal Procedural Rules Com-

mittee has abolished Mr. Cheppa’s Fourteenth Amendment

privilege of bringing a prima facie case to a Grand Jury, and

instead, formulated Rule 133 of the Pa. R. Crim. P., thereby,

giving to one man the powers of the entire Grand Jury as

prescribed by the Fifth Amendment.

Although the Pennsylvania Criminal Procedural Rules Com-

mittee had intended that all cases of a prima facie nature which

may be brought to the Attorney for the Commonwealth would

be prosecuted, the opposite has taken place in the instant case.

Aprima facie case establishing Mr. Kitner’s guilt of perjury and

false swearing was brought to the District Attorney and the

criminal was set free.

Presently, the Attorney for the Commonwealth has no stan-

dards, tests, elements or criteria to be followed regarding his

decision as to whether or not a criminal act can, or should be

prosecuted by a private individual. The Pennsylvania

APPENDIX X

Criminal Procedural Rules Committee had intended that the

D.A. would respect a citizen-victim’s rights as recited by the

Fifth and Fourteenth Amendments and allow prosecution of a

prima facie case as a Grand Jury would have. The District

Attorney has not acted that way, which again, is a gross abuse

of discretion.

a76

APPENDIX Y

US CONSTITUTION RAISED IN EXCEPTIONS TO SEC-

OND CASE. JULY 1, 1991. p. 7:

9. SAID Order is contrary to the United States and the State

of Pennsylvania Constitutions in that it allows for the arbitrary

and capricious application of criminal law by placing in the

hands of one person complete control, with no standards, tests,

elements or criteria to be followed, over whether or not a

criminal act can be prosecuted by a private individual.

10. SAID Order is contrary to the Constitutions of the United

States and Pennsylvania in that it is arbitrary and capricious

and does not provide equal protection of the laws and is

discriminatory as to the Affiant.

11. SAID Order is contrary to the Constitutions of the United

States and Pennsylvania in that it is arbitrary and capricious

and abolishes the Affiant’s right to bring his allegations estab-

lishing the Defendants guilt in a prima facie case to a Grand

Jury.

APPENDIX Z

BRIEF TO EXCEPTIONS OF SECOND CASE. JULY 10.

1991. pp. 10 - 11. ARGUED WITH EXCEPTIONS TO FIRST

CASE.

Moreover, to deny Private Prosecution to the affiant in this

prima facie case is to deny to the Affiant his United States

Constitutional rights of “Equal Protection”, “Due Process” and

“Abrogation of Citizen’s Privileges”.

a78

APPENDIX AA

U.S. CONSTITUTION RAISED IN BRIEF TO PA. SUPE-

RIOR COURT, pp. 14 - 15, & 43 - 49:

STATEMENT OF THE CASE:

Finally, the abrogation of the Grand Jury system, said

system being provided for by the Constitution of the United

States, made it possible for the District Attorney to make a

capricious decision to disapprove the complaints without founda-

tion and contrary to the facts presented to him. Mr. Cheppa,

your Appellant, was denied the equal protection of the law be-

cause of the decision of one man, the District Attorney.

ISSUE NUMBER 8:

Effective and fair enforcement of the penal statues in the

State of Pennsylvania is of significant public concern. It is of

significant concern for two reasons. First, to properly punish

those who violate the statutes. Second, to deter future viola-

tions of the penal laws, and as such, protect innocent citizens.

When the penal statutes are not being effectively and fairly

enforced the citizens of this Commonwealth generally, and

victims specifically, suffer losses, tangible and intangible,

liquidated and unliquidated. The Fifth Amendment to the

United States Constitution provides, in part, that no citizen

shall ‘..be deprived of life, liberty or property, without due

process of law.” The Fifth Amendment is made applicable to the

States through the Fourteenth Amendment to the U.S. Constitu-

tion. It is also fundamental that the guarantee of due process

is absolute. Hammond Packing Co. v. Arkansas, 212 U.S.

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322, 29 S. Ct. 370

John Cheppa, as a victim of the lies and falsehoods of Stanley

Kitner, a West Hanover Township public official, suffered

substantial losses. He lost attorney’s fees, court costs, time off

work, and other incidental expenses. He has also suffered

emotional stress and fatigue.

The Pennsylvania State Legislature has placed in the hands

of the Dauphin County District Attorney not only the right, but

also the duty, to enforce the perjury and false swearing statute

against Stanley Kitner. As such, when a District Attorney and

Court, obviously acting under color of State law, arbitrarily and

unreasonably and capriciously refuse, without hearing to pros-

ecute a prima facie criminal case, they are violating the U.S.

Constitution’s due process clause.

An enormous amount of evidence was presented to the

District Attorney and the court which established a prima facie

criminal case against Stanley Kitner. Neither the District

Attorney nor the Court in its Opinion addressed the fact that

to obtain a conviction under “false swearing” the false testi-

mony need not be material. The failure to prosecute Mr. Kitner

constitutes an abuse of power which can not be tolerated.

Mountain Timber Co. v. Washington, 243 U.S. 219 37, Ct. 260.

The Fourteenth Amendment to the .5, Constitution not only

mandates that the States (i.e. the District Attorney) abide by

the due process requirements, but it also forbids the District

Attorney from denying any “person within his jurisdiction the

equal protection of the law.”

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APPENDIX AA

District Attorney has arbitrarily and capriciously denied

John Cheppa, an innocent citizen-victim, protection under the

penal laws of this Commonwealth. This constitutes a violation

of the Equal Protection clause.

John Cheppa is a property owner, a taxpayer, a voter, an

adult, a college graduate, a teacher. Why should he not be

protected, as all other citizens, against criminal activity in

Dauphin County? The indiscriminate enforcement of the crimi-

nal statutes is as much a violation of the Equal Protection

Clause to the victim as to the Defendant. He is a victim of a

criminal act. He needs “protection from the law.” The only

person whocan provide that protection is the District Attorney.

The District Attorney must provide that protection “equally.”

It is the State, through its office holders, which has the duty of

protecting all citizens in the employment of equality of rights.

U.S. v. Cruikshank, 92 U.S. 542.

The Equal Protection Clause of the Federal Constitution

means that the rights of all persons, not the majority or those

in favor with the government, must rest upon the same rule

under similar circumstances, and applies to the exercise of all

the powers of the State, not just some, which can effect the

individual or his property. Louisville Gas & Electric v. Coleman,

277 U.S. 32. The District Attorney must not be permitted to

arbitrarily pick and choose what private criminal complaints

he will approve and prosecute. This is a fundamental violation

of the U.S. Constitution. The law must be enforced equally

without regard to the race, color, creed, political party

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APPENDIX AA

or personality of the victim or the defendant, Louisiana er. rel.

Francis v. Resiveber, 329 U.S. 459.

The best available summary of the Equal Protection Clause

is found in Hill v. Texas, 316 U.S. 400, The United States

Supreme Court declared that equal protection under the law is

something more than an abstract right. It is acommand which

every citizen may demand.

John Cheppa has the right and does demand that the District

Attorney close his eyes as to the identity of the victim and the

Defendant and prosecute the criminal charges against Stanley

Kitner. The failure to do so renders the Equal Protection

Clause an abstract right with no practical meaning. When only

those victims who are found in favor with the District Attorney’s

Office are afforded-protection and when those wrongdoers who

are found in favor with the District Attorney’s Office are

afforded protection and when those wrongdoers who are found

in favor with the District Attorney’s Office are not prosecuted,

justice is no longer blind.

ISSUE NUMBER 9

Amendment Five to the United States Constitution states,

“No person shall be held to answer for a capital or other

infamous crime unless on a presentment or indictment of a

grand jury...” John Cheppa as not afforded his Constitutional

right to have his criminal charges approved or disapproved by

a grand jury as provided for by the U.S. Constitution. In place

of the grand jury, Dauphin County, Pennsylvania has chosen

to entrust one person, the District Attorney, with power to

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APPENDIX AA

to decide whether or not to prosecute persons for crimes. The

basic function of the grand jury is to provide a fair method for

instituting criminal proceedings against persons believed to

have committed crimes, and historically, to protect the public

from overzealous prosecutors by interposing a lay buffer be-

tween them. United States v. Shober, 489 F. Supp. 393. (D.C.

Pa. 1979). Just as the court in Shober held that the grand jury

system should be used to protect criminal defendants against

the decisions of one man, the prosecutor, so must the Grand

jury system (or an alternative approval process) be used to

protect the rights of the innocent victims of crime.

The grand jury system is one of the oldest and most distin-

guished tribunals connected with the administration of crimi-

nal law. In re: Charge to Grand Jury. 97 P.L.J.115 (Pa. 0. & T.

1949). John Cheppa was denied one of the oldest, well estab-

lished rights of common law, the right to a determination of

probable cause by a grand jury. The differences between a

grand jury and the District Attorney are such that John

Cheppa was subject to the prejudices and the established

thought of one person. The District Attorney of Dauphin

County, as an elected official for a limited term, is by definition,

a political being. In contrast, the grand jury is composed of

citizens which constitute a fair cross section of a judicial

district; who are not affiliated with one political party; and who,

ideally, do not have an interest in any criminal proceedings.

These private criminal complaints would have been approved

by a grand jury panel. The denial of Appellant’s constitutional

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APPENDIX AA

right to a grand jury constituted great prejudice to Mr. Cheppa.

In the case of Commonwealth v. Liebowitz, 17 A.2d 719, 143

Pa. Super. 75 (1941) the Superior Court of Pennsylvania found

that the legislature could not abolish the grand jury. Neverthe-

less, the Pennsylvania Legislature has chosen to abolish the

grand jury system and, in its place, rest the power of prosecu-

tion in the hands of one person, the District Attorney.

In the past year in Dauphin County the District Attorney has

chosen to act on the complaints of other persons in regard to,

among other matters, the closing of a bar room in the case of

Commonwealth v. Vanity Bar 4889 s 1990 within the City of

Harrisburg. However, the District Attorney has chosen to

ignore the allegations of perjury and false swearing committed

by a public official. Was the District Attorney’s decision not to

prosecute Stanley Kitner in some way connected with the

political power of Stanley Kitner, a West Hanover Township

Official? Obviously, it is in the best interest of the District

Attorney not to prosecute those persons who will support his

reelection bid.

Appellant asserts that if he would have been afforded his

Constitutional right of protection against crimes by the

impanelment of a grand jury his criminal complaints would

have been approved. he refusal of the District Attorney to

approve appellant’s private criminal complaints is entirely

capricious, without foundation and for the reasons set forth

above, unconstitutional.

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APPENDIX BB

U.S. CONSTITUTION RAISED IN PETITION FOR AL-

LOWANCE OF APPEAL TO STATE SUPREME COURT.

June 29, 1992. PP. 15 - 17:

If the Superior Court’s decision is not reviewed by this

Honorable Court, each county prosecutor will be able to control

and dictate which citizen’s private criminal complaints are

approved and which are denied regardless of the nature of the

crime and the amount of evidence presented to the district

attorney. The result will be the iniquitous favoring of the

culpable when accused by the nonpartisan and, to a greater

extent, the prosecution of the innocent when accused by a

disciple of the district attorney.

The Fifth Amendment to the United States Constitution

states, “No person shall be held to answer for a capital or other

infamous crime unless on a presentment or indictment of a

grand jury...” [Exhibit “8”.

The Pennsylvania Legislature has placed in the hands of the

Dauphin County District Attorney, not only the right, but also

the duty, to enforce the penal laws of this Commonwealth. As

such, when a district attorney, action under color of State law,

arbitrarily, unreasonably and capriciously refuses to prosecute

a prima facie criminal case, he is violating the due process

requirements of the Fifth Amendment to tire United States

Constitution and the decisional law of the Pennsylvania Su-

preme Court.

The Fourteenth Amendment to the U.S. Constitution not

only mandates that the States (i.e. the district attorney) abide

by due process and equal protection requirements, but it

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APPENDIX BB

also forbids the district attorney from denying any “person

within hisjurisdiction the equal protection of the law.” [Exhibit

“9"]. The district attorney has arbitrarily and capriciously

denied John Cheppa, and innocent victim, protection under the

penal laws of this Commonwealth contrary to the equal protec-

tion clause.

Because Pennsylvania’s laws defining perjury and false

swearing must be preserved; because the appellate Court

below affirmed the trial court’s order contrary to the applicable

decisions of the Supreme Court of Pennsylvania; because the

Appellate Court below departed from the excepted and usual

course of judicial proceedings by failing to follow case law

established by the Supreme Court of Pennsylvania; because

the Superior Court in the instant case at No. 498 HBG. 1991

rendered a decision in conflict to the or Court’s order at No.

1616 Pitt. 1986, 373 Pa. Super. 629, A.2d 821: because the

Superior Court’s order in the instant case renders a clear and

present danger to the community and is of immediate public

importance; because the Appellate Court below decided a

question of substance not heretofore determined by the Su-

preme Court of Pennsylvania regarding the Commonwealth’s

usurpation of discretion the issue of materiality concerning

perjury; and because the order of the Superior Court has

sanctioned a violation of the Appellant’s constitutional rights,

your Honorable Court should approve the Appellant’s petition

for allowance of appeal.

For these reasons the Supreme Court should allow this

appeal and reverse the decisions of the District Attorney, the

APPENDIX BB

trial court and the Superior Court.

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APPENDIX CC

42 Pa. C. S. A. 5552 LIMITATION OF TIME

Other offenses

(a) General rule. - Except as otherwise provided in this

subchapter, a prosecution for an offense other than murder or

volun-tary manslaughter must be commenced within two years

after it is committed.

(b) Major offenses. - A prosecution for any of the following

offences under title 18 (relating to crimes and offences) must be

commenced within five years after it is committed:

Section

3123 (relating to involuntary deviate sexual intercourse).

3301 (relating to arson and related offenses).

3502 (relating to burglary).

3701 (relating to robbery).

4101 (relating to forgery).

4902 (relating to perjury).

subsection (b) has expired, a prosecution may nev-ertheless be

commenced for:

(1) Any offence a material element of which is either fraud or

a breach of fi-duciary obligation within one year after discovery

of the offense by an aggrieved party or by a person who has a

legal duty to represent an aggrieved party and who is himself

not a party to the offense, but in no case shall this paragraph

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APPENDIX CC

extend the period of limitation otherwise applicable by more

that three years.

(2) Any offense committed by a public officer or employee in

the course of or in connection with his office or employment at

any time when the defendant is in public office or employment

or within five years thereafter, but in no case shall this

paragraph extend the period of limitation otherwise applicable

by more than eight years.

(d) Commission of offense. - An offense is committed either

when every element occurs, or, if a

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