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No. 131 C.D. 2018 (Pa. Cmmw. Ct. Dec. 6, 2018)

No. 131 C.D. 2018


Commonwealth of Pennsylvania v. Honorable William T. Tully, Judge Dauphin County Appeal of: Glue Wilkins



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 the Honorable William T. Tully (Judge Tully) with a number of crimes. We affirm.

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

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)] 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).

The Superior Court summarized the facts adduced at Wilkins' trial underlying his convictions as follows:

[Wilkins] and the victim, who sold sports memorabilia, met in a baseball card shop and discussed a possible business venture whereby [Wilkins] would provide twenty athletes to autograph sports cards during a June 24th golf outing honoring athlete Robert Tate. After two meetings, it became clear to the victim that [Wilkins] could not provide the athletes' services at the agreed upon price, and, therefore, the victim started to ignore [Wilkins'] telephone calls. The victim subsequently saw [Wilkins] at the baseball card shop, and [Wilkins] began yelling at the victim indicating that the victim better "watch his back." The victim became "scared for his life" and decided he should not ignore [Wilkins]. The victim met with [Wilkins] again; however, pursuant to Robert Tate's request, the victim began dealing directly with Robert Tate to arrange for athletes to autograph sports memorabilia at the golf outing. The victim next saw [Wilkins] at the golf outing but he did not speak directly to him.
On July 7th, the victim received a telephone call from a man purporting to be Hank Poteat, who played football for the Pittsburgh Steelers. The caller indicated that he wanted to meet with the victim at 1951 Boas Street to set up a possible card signing. The victim proceeded to the address, got out of the car, and yelled, "Hank, are you here?" Someone yelled, "Yeah, I'm here," and the victim went inside of the house, proceeding to the second floor where he heard a noise. The victim walked into a room on the second floor and was immediately hit on the head with a baseball bat. The victim was struck with the baseball bat four or five more times in the head, arms, and legs, and he was then punched and kicked. The assailant yelled, "You're such a tough guy. You're a bad ass. You talk all kinds of shit about me and telling people how I ripped you off and stuff like that."
During the attack, the victim turned towards his assailant and found himself looking "face to face" with [Wilkins]. [Wilkins] then began strangling the victim and the victim "went limp," pretending he was unconscious. [Wilkins] taped the victim's mouth, wrists, and legs with silver duct tape and said, "I should f***ing kill you." [Wilkins] told the victim that if the victim told anyone about the attack [Wilkins] would kill the victim. [Wilkins] then rifled through the victim's pockets, taking the victim's wallet containing $500.00 in cash and credit cards, the victim's cell phone, and the victim's car keys.
After [Wilkins] fled with the victim's car, the victim removed the duct tape from his head and legs and walked to a nearby gas station. A passerby called the police, and the victim was taken to a hospital where he received thirty-eight stitches for a head wound and seven stitches for a wound to his left arm. The victim also sustained a broken arm, for which he received surgery, and a fractured ankle. The day after the attack, the victim checked the messages, which would have been left at his cell phone number. Someone had left a message for [Wilkins]. The victim indicated at [Wilkins'] trial that, after the beating, he never again saw his wallet or its contents, his cell phone, or his car, which had $5,000.00 in the glove compartment.

42 Pa. C.S. §§9541-9546.

Thereafter, Wilkins sought to file private criminal complaints against a number of Commonwealth officials, including Judge Tully, 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 a medical report. Following a hearing before the Honorable David Grine (Judge Grine), 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: (1) the District Attorney has a positive statutory duty to enforce his due process right to a complete record on appeal to ensure meaningful appellate review; (2) the judges and row officers of the 12th Judicial District committed Obstruction of Government Operations in violation of Section 5101 of the Pennsylvania Crimes Code by withholding a 2002 exculpatory medical report until 2016 and 2017; and (3) the judges and row officers of the 12th Judicial District had a duty to complete the certified record in a timely manner following a 2006 Superior Court order granting Wilkins' motion to supplement the record with the medical report.

The trial court is the 12th Judicial District. 42 Pa. C.S. §901.

18 Pa. C.S. §5101. Section 5101 states, in relevant part, "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 . . . ."

At the hearing before the trial court, the District Attorney stated the following, in relevant part:

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).

The Commonwealth has denied the private criminal complaint both on the basis that it is insufficient as a matter of law and on public policy reasons. We did so in writing.
I wish, if I may, to elaborate further for the record if I may. We feel it's insufficient as a matter of law that - but we also feel that it's not in the public interest.

Even if there were a prima facie case, we could not sustain our burden, it would not be in the public interest to pursue this, and no reasonable jury would credit the testimony of this defendant, would find that there was a crime, and the expenditure of the public resources would not be in the public interest, we cannot pursue every allegation.
And governance is about choosing. We must choose which causes we take up. And we cannot take up this cause. We have determined that it is not in the public interest and we respectfully decline to take up this particular action.

N.T. 9/8/17 at 2-3.

"N.T. 9/8/17" refers to the transcript of the hearing conducted by Judge Grine in the trial court.

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 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. Cmwlth. 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. However, Wilkins failed to assert any allegations regarding the District Attorney's improper motive for denying his private criminal complaint in his petition for review of the District Attorney's decision in this regard. See 6/14/17 Notice of Appeal. Likewise, at the hearing, Wilkins failed to present any facts demonstrating the requisite bad faith, fraud or unconstitutionality connected to the disapproval of his private criminal complaint. See N.T. 9/8/17 at 3-13.

Moreover, in his appellate brief, Wilkins only argues how the District Attorney and the judges and row officers of the 12th Judicial District violated the Pennsylvania Crimes Code with respect to the record in his criminal case, and he does not address the issue of the District Attorney's exercise of discretion in disapproving his private criminal complaint. See Brief of Appellant at 5-7. As a result, to the extent that Wilkins has not waived any allegation of error in this regard, 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 discretion in affirming the disapproval.

See 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), cert. denied, 526 U.S. 1070 (1999) (holding that the failure to develop an issue in appellate brief results in waiver); In re Estate of Ryerss, 987 A.2d 1231, 1236 n.7 (Pa. Cmwlth. 2009) (holding that arguments not properly developed in an appellate brief will be deemed waived by this Court under Pa. R.A.P. 2119(a)); Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (holding that the failure to cite pertinent authority results in waiver under Pa. R.A.P. 2119).

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

"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). --------

Accordingly, the trial court's order is affirmed.



AND NOW, this 6th day of December, 2018, the order of the Dauphin County Court of Common Pleas dated September 22, 2017, is AFFIRMED.

Commonwealth v. Wilkins (Pa. Super., No. 459 MDA 2005, filed February 13, 2006), slip op. at 4-7 (record citations omitted).