            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                  :
                                              :
                       v.                     : No. 130 C.D. 2018
                                              : Submitted: March 15, 2019
Dale E. Klein, Esquire                        :
Clerk of Court, Dauphin County                :
                                              :
Appeal of: Glue Wilkins                       :


OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                          FILED: July 9, 2019


                Glue Wilkins (Wilkins) appeals pro se the order of the Dauphin County
Court of Common Pleas (trial court) affirming the decision of the Dauphin County
District Attorney’s Office (District Attorney) to disapprove the filing of a private
criminal complaint charging Dale E. Klein, Esquire, Dauphin County Clerk of Court
(Clerk of Court) with a number of crimes.1 We affirm.


      1
          Pa. R. Crim. P. 506(A), (B)(2) states:

                 (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:

                                                   ***

                 (2) disapproves the complaint, the attorney shall state the reasons
                on the complaint form and return it to the affiant. Thereafter, the
               The history of Wilkins’ present convictions and incarceration has been
summarized by the Pennsylvania Superior Court as follows:

                     On September 10, 2003, a jury found [Wilkins]
               guilty of Criminal Attempt (Homicide), Aggravated
               Assault, Robbery, Theft by Unlawful Taking, Terroristic
               Threats, Unlawful Restraint, and Possessing Instruments
               of Crime. On October 30, 2003, the Honorable Joseph H.
               Kleinfelter sentenced [Wilkins] to an aggregate term of
               imprisonment of 12 to [24] years, a fine of $1,000, and
               payment of the costs of prosecution.

                      [Wilkins] filed a counseled appeal, which the
               Superior Court dismissed for counsel’s failure to provide
               a transcript of the trial. [Wilkins] then filed three [pro se]
               [Post Conviction Relief Act (PCRA)2] motions. The
               PCRA court appointed counsel, and reinstated [Wilkins’]
               appellate rights. Appointed counsel sought leave to
               withdraw representation on appeal. By Memorandum
               Opinion and Order of February 13, 2006, the Superior
               Court granted counsel’s petition to withdraw and affirmed
               the judgment of sentence. [Commonwealth v. Wilkins (Pa.
               Super., No. 459 MDA 2005, filed February 13, 2006)].
Commonwealth v. Wilkins (Pa. Super., No. 1607 MDA 2011, filed April 9, 2012),
slip op. at 1-2 (citation omitted).
               Thereafter, Wilkins sought to file private criminal complaints against a
number of Commonwealth officials, including the Clerk of Court, that were
disapproved by the District Attorney. Wilkins alleged that the officials willfully and
maliciously refused to complete the certified record in his criminal case by
withholding the preliminary hearing transcript, the sentencing hearing transcript, and


               affiant may petition the court of common pleas for review of the
               decision.

      2
          42 Pa. C.S. §§9541-9546.


                                              2
a medical report. Following a hearing before the Honorable David Grine,3 the trial
court affirmed the District Attorney’s decision and Wilkins filed the instant appeal,
which was transferred to this Court by the Superior Court.
               On appeal, Wilkins claims that: (1) he has made numerous formal and
informal requests over the past 12 years for exculpatory reports and transcripts to be
made part of the official record; (2) the Clerk of Court forwarded an incomplete
record to the Superior Court in the matter of Commonwealth v. Wilkins (Pa. Super.,
No. 297 MDA 2017, filed September 21, 2017)4; and (3) the Clerk of Court
committed “Obstruction”5 by forwarding an incomplete record to the Superior Court
without requisite notice.
               In the Opinion supporting its order, the trial court stated, in relevant
part:



        3
          Wilkins was not entitled to a hearing on the District Attorney’s decision in this regard.
As the Superior Court has explained, “a private criminal complainant is not entitled to an
evidentiary hearing regarding the trial court’s review of the Commonwealth’s decision. [T]he
pertinent criminal procedural rule, Pa. R. Crim. P. 506, ‘merely allows the private criminal
complainant the opportunity to have his complaint reviewed in the Court of Common Pleas[.]’”
Braman v. Corbett, 19 A.3d 1151, 1160 (Pa. Super. 2011) (citation omitted). See also In re Private
Complaint of Owens Against Coker, 810 A.2d 172, 177 (Pa. Super. 2002) (“Appellant does not
allege that the trial court departed in any respect from Pa. R. Crim. P. [5]06 (establishing the
procedure for handling private civil complaints). We have held that ‘the provision in the Rule
allowing an appeal of the district attorney’s disapproval of such charges to the court constitutes
sufficient checks and balances upon the district attorney’s actions to comply with constitutional
due process requirements.’ Thus, appellant’s due process claims lack merit.”) (citation omitted).

        4
          In that appeal, the Superior Court affirmed the dismissal of three of Wilkins’ PCRA
petitions as untimely. See Wilkins, slip op. at 4-6.

        5
         Obstruction of government operations is defined in Section 5101 of the Pennsylvania
Crimes Code, 18 Pa. C.S. §5101, as follows: “A person commits a misdemeanor of the second
degree if he intentionally obstructs, impairs or perverts the administration of law or other
governmental function by . . . breach of official duty, or any other unlawful act . . . .”
                                                3
                   In the instant case, Mr. Wilkins submitted four (4)
            private criminal complaints alleging that the named
            individuals willfully and maliciously refused to complete
            the official appellate record on his criminal case [] by
            withholding the preliminary hearing transcript, sentencing
            hearing transcript, and medical records. He also alleged
            that the named individuals did so with the intent of
            inhibiting Mr. Wilkins’ appeal. The attorney for the
            Commonwealth denied the four (4) private criminal
            complaints filed by Mr. Wilkins stating the reasons as
            follows:

                   First, the affidavit of probable cause is not signed.
                   Second, there are not facts present in the complaints
                   which would support such charges even if the
                   affidavit was signed.         The burden on the
                   Commonwealth to prove a case in a criminal trial is
                   the highest burden of proof. There is simply no
                   evidence that the Commonwealth could introduce at
                   trial to show that these actors worked together to
                   withhold documents to hinder your appeal. Thus,
                   this case cannot be proved to a jury beyond a
                   reasonable doubt.

            (See Denial of Private Criminal Complaint, June 7, 2017).
Trial Court 9/22/17 Opinion at 2-3.
            In reviewing a district attorney’s decision in this regard, the Superior
Court has explained:

                    It is well settled that, if the Commonwealth
            disapproves a private criminal complaint, the complainant
            can petition the Court of Common Pleas for review, and
            the trial court must first correctly identify the nature of the
            reasons given by the district attorney for denying the
            complaint. “Where the district attorney’s denial [of a
            private criminal complaint] is based on a legal evaluation
            of the evidence, the trial court undertakes a de novo review
            of the matter.”

                   [However,] [w]hen the district attorney disapproves
                   a private criminal complaint on wholly policy
                                          4
                    considerations, or on a hybrid of legal and policy
                    considerations, the trial court’s standard of review
                    of the district attorney’s decision is abuse of
                    discretion. This deferential standard recognizes the
                    limitations on judicial power to interfere with the
                    district attorney’s discretion in these kinds of
                    decisions. . . . Thereafter, the appellate court will
                    review the trial court’s decision for an abuse of
                    discretion, in keeping with the settled principles of
                    appellate review of discretionary matters. . . .

                                              ***

                           The private criminal complainant has the
                    burden to prove the district attorney abused his
                    discretion, and that burden is a heavy one. In the
                    Rule 506 petition for review, the private criminal
                    complainant must demonstrate the district
                    attorney’s decision amounted to bad faith, fraud or
                    unconstitutionality. The complainant must do more
                    than merely assert the district attorney’s decision is
                    flawed in these regards. The complainant must
                    show the facts of the case lead only to the
                    conclusion that the district attorney’s decision was
                    patently discriminatory, arbitrary or pretextual, and
                    therefore, not in the public interest. In the absence
                    of such evidence, the trial court cannot presume to
                    supervise the district attorney’s exercise of
                    prosecutorial discretion, and should leave the
                    district attorney’s decision undisturbed.
In re Private Criminal Complaints of Rafferty, 969 A.2d 578, 581-582 (Pa. Super.
2009) (citations and footnote omitted). In this case, because the District Attorney
disapproved Wilkins’ private criminal complaint on a hybrid of legal and policy
considerations, Wilkins was required to demonstrate that the District Attorney’s
“decision was patently discriminatory, arbitrary or pretextual, and therefore, not in
the public interest.” Id.




                                          5
               However, in his appellate brief, Wilkins only argues that: (1) he made
numerous formal and informal requests over the past 12 years for exculpatory reports
and transcripts to be made part of the official record; (2) the Clerk of Court
forwarded an incomplete record in the Superior Court appeal relating to the denial
of his untimely PCRA petitions; and (3) the Clerk of Court committed “Obstruction”
by forwarding an incomplete record to the Superior Court without the requisite
notice. See Brief of Appellant at 5.
               Wilkins does not raise the issue of the District Attorney’s exercise of
discretion in disapproving his private criminal complaint in the Statement of
Questions Involved or Argument portions of his appellate brief. See id. at 1-2, 5.
As a result, to the extent that Wilkins has not waived any allegation of error in this
regard,6 we are constrained to conclude that he has not demonstrated that the District
Attorney’s disapproval of the private complaint was improper or that the trial court
abused its discretion7 in affirming the District Attorney’s determination in this
regard.


       6
            See Pa. R.A.P. 2116(a) (“The statement of the questions involved must state concisely
the issues to be resolved . . . . The statement will be deemed to include every subsidiary question
fairly comprised therein. No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.”); Pa. R.A.P. 2119(a) (“The argument shall be
divided into as many parts as there are questions to be argued; and shall have at the head of each
part . . . the particular point treated therein, followed by such discussion and citation of authorities
as are deemed pertinent.”); Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998) (holding
that the failure to develop an issue in an appellate brief results in waiver); In re Estate of Ryerss,
987 A.2d 1231, 1236 n.7 (Pa. Cmwlth. 2009) (holding that issues not stated in the statement of
questions presented or fairly suggested thereby will be deemed waived by this Court under Pa.
R.A.P. 2116(a), and arguments not properly developed in an appellate brief will be deemed waived
under Pa. R.A.P. 2119(a)).
          7
            “‘An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion
the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is


                                                   6
               Accordingly, the trial court’s order is affirmed.8




abused.’” Fancsali v. University Health Center of Pittsburgh, 761 A.2d 1159, 1162 (Pa. 2000)
(citation omitted).

       8
          “This Court is not bound by the rationale of the trial court, and we may affirm the trial
court on any basis.” Commonwealth v. Williams, 73 A.3d 609, 617, n.4 (Pa. Super. 2013) (citation
omitted).
                                                7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania        :
                                    :
                  v.                : No. 130 C.D. 2018
                                    :
Dale E. Klein, Esquire              :
Clerk of Court, Dauphin County      :
                                    :
Appeal of: Glue Wilkins             :


PER CURIAM

                                  ORDER


            AND NOW, this 9th day of July, 2019, the order of the Dauphin County
Court of Common Pleas dated September 22, 2017, is AFFIRMED.
