J-S55018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MELISSA HENICO, COUNSELOR, PA
DEPT. OF CORRECTIONS
APPEAL OF: GLUE WILKINS No. 172 WDA 2015
Appeal from the Order Entered December 4, 2014
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-MD-0000642-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 15, 2015
Appellant, Allen Wilkins,1 appeals pro se from the trial court’s
December 4, 2014 order denying his pro se “Petition for Review of the
District Attorney’s Disapproval of a Private Complaint.” We affirm.
The trial court explained the factual and procedural history of this case
as follows:
This matter came before the [c]ourt on a pro se Petition
for Review of the District Attorney’s Disapproval of a Private
Criminal Complaint Pursuant to Pa.R.Crim.P. No. 506(B)(2)….[2]
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant’s correct name is Allen Wilkins; however, for reasons unknown to
this Court, he identified himself as “Glue Wilkins” in all documents filed with
this Court and the trial court.
2
Pennsylvania Rule of Criminal Procedure 506, which governs the filing of
private criminal complaints, states:
(Footnote Continued Next Page)
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After review of the pleadings and the Criminal Complaint, the
[c]ourt on December 4, 2014[,] denied the Petition without [a]
hearing. Thereafter, [Appellant] filed an Appeal with the
Superior Court. Pursuant to Pa.R.A.P. … 1925(b), … the [c]ourt
directed [Appellant] to file a concise statement of [errors]
complained of on Appeal. On December 11, 2014[, Appellant]
filed a statement of questions involved. He claims that the
District Attorney has failed to investigate his complaint and
thereafter, has engaged in conduct constituting prosecutorial
misconduct. [Appellant] has also filed a private criminal
complaint against the Indiana County District Attorney. It is the
Court’s understanding that this complaint has been forwarded to
the Office of the Attorney General for review.
At the time of the filing of the subject private criminal
complaint, [Appellant] was an inmate at the State Correctional
Institution – Pine Grove located in Indiana County. The
Defendant in the private complaint is Melissa Henico who
appears to be an employee of the Department of Corrections
[(DOC)] at Pine Grove. [Appellant] claims that Ms. Henico has
committed the offenses of Obstructing Administration of Law or
Other Governmental Function, 18 Pa.C.S.A. §5101; Tampering
With Public Records or Information, 18 Pa.C.S.A. §4911(a)(2)[;]
and Accomplice Liability, 18 Pa.C.S.A. §306 as to the offenses of
Kidnapping, 18 Pa.C.S.A. §2901; False Imprisonment, 18
_______________________
(Footnote Continued)
(A) When the affiant is not a law enforcement officer, the
complaint shall be submitted to an attorney for the
Commonwealth, who shall approve or disapprove it without
unreasonable delay.
(B) If the attorney for the Commonwealth:
(1) approves the complaint, the attorney shall indicate this
decision on the complaint form and transmit it to the issuing
authority;
(2) disapproves the complaint, the attorney shall state the
reasons on the complaint form and return it to the affiant.
Thereafter, the affiant may petition the court of common
pleas for review of the decision.
Pa.R.Crim.P. 506.
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Pa.C.S.A. §2903; Official [Oppression], 18 Pa.C.S.A. §5301;
Securing Execution of Documents By Deception, 18 Pa.C.S.A.
§4114; Tampering With Records or Identification, 18 Pa.C.S.A.
§4104(a); Conspiracy, 18 Pa.C.S.A. §903; Hindering
Apprehension or Prosecution, 18 Pa.C.S.A. §5105; Aiding in
[Consummation] of a Crime, 18 Pa.C.S.A. §5107[;] and
Harassment, 18 Pa.C.S.A. §2709. [Appellant] makes these
allegations based upon a claim that Ms. Henico failed to correct
his [DOC] Records as to his time served credit. [Appellant] also
claims that Ms. Henico has the ability to release him from
custody and refuses to do so.
Upon review of the private criminal complaint, Indiana
County District Attorney Patrick Dougherty denied prosecution
because “[Appellant] needs to follow Pa. DOC procedures prior to
filing[.”]
Trial Court Opinion (TCO), 2/25/15, at 1-2 (footnote omitted).
Appellant filed a timely pro se notice of appeal from the trial court’s
December 4, 2014 order denying his petition for review of the
Commonwealth’s disapproval of his private criminal complaint. Herein,
Appellant raises two issues, which we reproduce verbatim:
1.) WHETHER THE COMPLAINTANT HAS COMPLIED WITH ALL
THE REQUIREMENTS OF PENNSYLVANIA DEPARTMENT OF
CORRECTIONS POLICY FOR FILING CRIMINAL CHARGES?
***
2.) WHETHER THE INDIANA COUNTY OFFICE OF THE
DISTRICT ATTORNEY HAS FAILED TO MEET THE
INVESTIGATIVE DICTUM ESTABLISHED BY THE
PENNSYLVANIA SUPREME AND SUPERIOR COURTS
RELATIVE TO Pa.R.Crim.P. RULE 506 PRIVATE CRIMINAL
COMPLAINTS?
Appellant’s Brief at 1-2 (unnumbered).
Initially, we note that,
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following the receipt of a petition to review the Commonwealth's
decision to disapprove a private criminal complaint, the
[common pleas] court must determine whether the
Commonwealth's rationale for disapproving the private criminal
complaint is for purely legal reasons or if it is based solely or in
part on policy considerations. In re Wilson, 879 A.2d 199 (Pa.
Super. 2005) (en banc). When the Commonwealth's disapproval
is based wholly on legal considerations, the court employs a de
novo review. Id. at 215, 218. Where the decision includes or is
entirely based on policy considerations, the trial court reviews
the Commonwealth's determination under an abuse of discretion
standard. Id.
Braman v. Corbett, 19 A.3d 1151, 1157 (Pa. Super. 2011). Additionally:
When an appeal is brought from a common pleas court's decision
regarding the approval or disapproval of a private criminal
complaint, an appellate court is limited to ascertaining the
propriety of the trial court's actions. Thus, our review is limited
to determining whether the trial court abused its discretion or
committed an error of law.
Michaels v. Barrasse, 681 A.2d 1362, 1364-1365 (Pa. Super. 1996)
(citation omitted).
Here, the trial court concluded that Appellant’s “private complaint was
denied by the District Attorney on the basis of the legal conclusion that
[Appellant] did not exhaust his administrative remedies with the Department
of Corrections.” TCO at 3 (emphasis added). Therefore, the court applied a
de novo standard of review.3 Id. Ultimately, the court upheld the
Commonwealth’s decision on different grounds than that which the
Commonwealth cited for disapproving Appellant’s private criminal complaint.
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3
Appellant does not raise any claim regarding the standard of review applied
by the trial court.
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The court explained:
Based upon a de novo review of the private complaint[,]
the Court finds that the complaint is without merit. The essence
of [Appellant’s] complaint is that Ms. Henico is criminally
culpable because she did not correct his DOC records as to credit
for time served. As this Court held in [a separate] … civil action
[by Appellant] against Ms. Henico, she has no authority to
change [Appellant’s] record as to credit for time served. Only
the sentencing court can address credit issues. That court is the
Court of Common Pleas of Dauphin County. McCray v.
Pennsylvania Dept. of Corrections, 582 Pa. 440, 872 A.2d
1127, 1133 (2005); Commonwealth v. Mann, 957 A.2d 746,
749 (Pa. Super. 2008). Ms. Henico cannot be criminally culpable
for not taking action she is prohibited by law from doing.
TCO at 3.
Appellant has failed to convince us that the trial court’s decision to
uphold the Commonwealth’s disapproval of his private criminal complaint
constituted an error of law or an abuse of discretion. Initially, the court is
correct that in Mann, we stated, “The Department of Corrections, an
executive agency, has no power to change sentences, or to add or remove
sentencing conditions, including credit for time served; this power is vested
in the sentencing court.” Mann, 957 A.2d at 749 (citing McCray, 872 A.2d
at 1133). Therefore, Appellant’s contention that Ms. Henico, a DOC
employee, committed criminal offenses by not changing the time-served
portion of his sentence is meritless.
Additionally, Appellant’s two-page appellate brief is nearly
incomprehensible. Most notably, his entire argument section amounts to the
following two paragraphs, reproduced verbatim:
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ARGUMENT [2119]: The Lower Court has averred that the
Appellant did not comply with “DOC policy”. However, the
Appellant who has the heavy burden, has not been advised of
WHAT? “DOC policies” were not complied with. This honorable
Court WHO? in theory reviews the trial court’s decisions have not
been advised of WHAT? ‘DOC policies” the Appellant has not
complied with.
“Does it not seem peculiar? The {appellant} complaintant
who has the heavy burden to show that the facts of the
case lead to a conclusion is not permitted to see the facts.
That we the appellate court, reviewing the trial court’s
decision, do not have the facts before us upon which we
would base a decision. Have we gone through the looking
glass? Are we in Wonderland ?
In Re: Wilson, 879 A.2d 199 (PA Super) (2005)
Appellant’s Brief at 2 (unpaginated).
From what we can ascertain, Appellant believes that he did comply
with DOC policy prior to filing his criminal complaint, and takes issue with
the fact that he was not explicitly told what policy he failed to satisfy.4
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4
While we make no determination on the propriety of the Commonwealth’s
disapproval of Appellant’s private criminal complaint on the basis that he
failed to comply with DOC policy, we note that Appellant attaches to his brief
a document that, according to him, proves he “complied with all the DC-ADM
004 Criminal Violations and DC-ADM 804 Inmate Grievance System …. See
Exhibit A.” Appellant’s Brief at 1 (unpaginated; emphasis omitted). The
document attached to Appellant’s brief, labeled “Exhibit A,” is a “Final Appeal
Decision” form issued by the Secretary’s Office of Inmate Grievances &
Appeals. That form reads, in pertinent part:
You state that staff have not forwarded information to the
Indiana County District Attorney’s office although you expressed
your desire for them to do so. Your concerns have been
reviewed. Review of the record indicates that staff are not
obligated to forward information from you to the District
(Footnote Continued Next Page)
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However, Appellant disregards that, as evinced by the above-quoted portion
of the trial court’s opinion, the court did not uphold the Commonwealth’s
disapproval of the private complaint based on Appellant’s failure to comply
with DOC policy. Instead, the court concluded that Appellant’s complaint
was without merit because Ms. Henico cannot be criminally culpable for the
offenses set forth by Appellant in that complaint. Appellant presents no
argument to refute the court’s decision in this regard; consequently, he has
not proven that the court committed an error of law or abused its discretion.
Accordingly, we affirm the court’s December 4, 2014 order denying
Appellant’s petition for review of the Commonwealth’s disapproval of
Appellant’s private criminal complaint.
Order affirmed.
_______________________
(Footnote Continued)
Attorney’s office. The responses provided to you by the
Grievance Officer and the Superintendent are adequate.
Therefore, your grievance appeal to this office is denied.
See Appellant’s Brief at 3 (“Exhibit A”). We fail to see how this grievance
form regarding the prison staff’s failure to forward documents to the District
Attorney’s office has any relation to whether Appellant followed proper DOC
procedures for raising his complaints against Ms. Henico prior to filing a
private criminal complaint against her.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/15/2015
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