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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
____________________________________________


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

____________________________________________


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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