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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,1appeals 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