Com. v. Adams, J.

2024 Pa. Super. 115, 317 A.3d 639

• Court: Superior Court of Pennsylvania
• Decided: June 3, 2024
• Docket: 2229 EDA 2022
• Status: Published

Opinion

J-A24007-23

2024 PA Super 115

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JACOB ADAMS : : Appellant : No. 2229 EDA 2022

Appeal from the Order Entered July 25, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos: MC-51-CR-0039001-2008, MC-51-CR-0039002-2008, MC-51-CR-0039003-2008, MC-51-CR-0039004-2008, MC-51-CR-0039005-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JACOB ADAMS : : Appellant : No. 2230 EDA 2022

Appeal from the Order Entered July 25, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos: MC-51-CR-0039001-2008, MC-51-CR-0039002-2008, MC-51-CR-0039003-2008, MC-51-CR-0039004-2008, MC-51-CR-0039005-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JACOB ADAMS : : Appellant : No. 2231 EDA 2022

Appeal from the Order Entered July 25, 2022 In the Court of Common Pleas of Philadelphia County J-A24007-23

Criminal Division at Nos: MC-51-CR-0039001-2008, MC-51-CR-0039002-2008, MC-51-CR-0039003-2008, MC-51-CR-0039004-2008, MC-51-CR-0039005-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JACOB ADAMS : : Appellant : No. 2232 EDA 2022

Appeal from the Order Entered July 25, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos: MC-51-CR-0039001-2008, MC-51-CR-0039002-2008, MC-51-CR-0039003-2008, MC-51-CR-0039004-2008, MC-51-CR-0039005-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JACOB ADAMS : : Appellant : No. 2233 EDA 2022

Appeal from the Order Entered July 25, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos: MC-51-CR-0039001-2008, MC-51-CR-0039002-2008, MC-51-CR-0039003-2008, MC-51-CR-0039004-2008, MC-51-CR-0039005-2008

BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.

OPINION BY STABILE, J.: FILED JUNE 3, 2024

Appellant, Jacob Adams, was sentenced in 2007 to probation for

violating a Protection From Abuse (“PFA”) order against his estranged wife.

In mid-2008, he was arrested five times based on allegations that he

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continued to contact or threaten his wife. One month later, the

Commonwealth withdrew all charges when Appellant’s wife failed to appear in

court to testify. Thirteen years later, in 2021, Appellant filed petitions to

expunge all records in the 2008 cases.1 Relying on hearsay allegations in the

records, the court denied his petition. Applying the balancing test articulated

in Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), we hold that the

court abused its discretion by denying expungement. Accordingly, we reverse.

On August 10, 2007, Appellant was arrested and charged with violating

a PFA order (a third-degree misdemeanor) and harassment (a summary

offense) for conduct relating to his wife. Appellant pled nolo contendere to

those charges and was sentenced to six months’ probation.

In June and July of 2008, Appellant’s wife called the police on five

separate occasions, alleging each time that Appellant had spoken with her in

violation of the PFA order. The police filed five sets of criminal charges, and

on August 4, 2008, Appellant was charged in all five cases for violating the

PFA order and in three of these cases for harassment and terroristic threats.

In each case, the criminal complaint alleged that Appellant either started an

argument with his former wife or made a threat of violence against her. In

one case, Appellant allegedly told his wife that he was “going to stomp her

when he sees her.” N.T., Expungement Hearing 7/25/22, at 8. In another

case, Appellant allegedly told his wife that he was “going to kill her.” Id. ____________________________________________

1 Because the petitions are essentially identical, we will refer to them collectively as the “petition.”

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The docket reflects that there was no preliminary hearing in any of the

five cases. The court initially scheduled trial in all five cases for September

25, 2008, but trial was continued to November 4, 2008 for reasons not

provided in the records. On November 4, 2008, the Commonwealth withdrew

all charges due to Appellant’s wife’s failure to appear in court to testify.

Appellant asserts, and the Commonwealth does not dispute, that he has

had no other contact with the criminal justice system other than the contacts

in 2007 and 2008.

On February 22, 2022, over thirteen years after withdrawal of the 2008

charges, Appellant filed a petition to expunge all records in the 2008 cases.

Appellant did not seek to expunge the record in the 2007 case in which he

was sentenced to probation.

On July 25, 2022, the court convened an evidentiary hearing on

Appellant’s petition. At the time of this hearing, Appellant was eight days

away from his 66th birthday, N.T., 7/25/22, at 8, and was arrest-free since his

arrest in 2008. Appellant testified on his own behalf during the hearing. He

testified that his wife’s allegations were untrue and that he subsequently

developed a cordial relationship with her. Id. at 12-13. The Commonwealth

called no witnesses. The only evidence offered by the Commonwealth were

the PARS reports2 generated in each case and a copy of Appellant’s secure

____________________________________________

2 PARS, a “Preliminary Arrest Report Summary,” is a document created by the

Philadelphia Police Department immediately after an arrest that provides a detective’s summary of the allegations in a case.

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court summary. The Commonwealth objected to expungement on the ground

that the charges involved allegations of domestic violence and because the

record showed “a course of conduct with respect to the same complainant.”

Id. at 7.

At the conclusion of the hearing, the court denied Appellant’s petition.

Appellant filed a timely appeal to this Court, and both Appellant and the court

complied with Pa.R.A.P. 1925. Appellant raises a single issue in this appeal:

“Did the lower court err and abuse its discretion in denying [Appellant’s]

motion to expunge his arrest record where the charges were withdrawn before

trial and where the Commonwealth failed to present compelling evidence that

expungement was inappropriate?” Appellant’s Brief at 3. We review the

denial of Appellant’s expungement petition for abuse of discretion.

Commonwealth v. Hanna, 964 A.2d 923, 925 (Pa. Super. 2009).

Our Supreme Court has explained that “[j]udicial analysis and

evaluation of a petition to expunge depend upon the manner of disposition of

the charges against the petitioner.” Commonwealth v. Moto, 23 A.3d 989,

993 (Pa. 2011). “When an individual has been convicted of the offenses

charged, then expungement of criminal history records may be granted only

under very limited circumstances that are set forth by statute.” Id. (citing 18

Pa.C.S.A. § 9122; Hunt v. Pennsylvania State Police, 983 A.2d 627, 633

(Pa. 2009)). When the defendant has been tried and acquitted of the offenses

charged, he is “automatically entitled to the expungement of his arrest

record.” Id. (citing Commonwealth v. D.M., 695 A.2d 770, 772–73 (Pa.

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1997)). Finally, when the Commonwealth withdraws the charges against the

defendant prior to trial, the situation in the present case, the court must apply

the standards articulated in Commonwealth v. Wexler, 431 A.2d 877, 879

(Pa. 1981), to the expungement petition. Id.

The Moto court cogently summarized Wexler as follows:

When a prosecution has been terminated without conviction or acquittal, for reasons such as nolle prosse of the charges or the defendant’s successful completion of an accelerated rehabilitative disposition program (“ARD”), then this Court has required the trial court to “balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” [Wexler,] 431 A.2d [at] 879; D.M., supra at 772 (“We reiterate the authority of Wexler and the balancing test approved therein as the means of deciding petitions to expunge the records of all arrests which are terminated without convictions except in cases of acquittals.”).

To aid courts in applying the balancing test for expungement, we also adopted in Wexler the following non-exhaustive list of factors that the court should consider:

These factors include [1] the strength of the Commonwealth’s case against the petitioner, [2] the reasons the Commonwealth gives for wishing to retain the records, [3] the petitioner’s age, criminal record, and employment history, [4] the length of time that has elapsed between the arrest and the petition to expunge, and [5] the specific adverse consequences the petitioner may endure should expunction be denied.

Wexler, supra at 879 (citation omitted).

We have emphasized that in applying the balancing test and considering the above factors, the court must analyze the particular, specific facts of the case before it. Id. at 880–81. The mere assertion by the Commonwealth of a general interest in maintaining accurate records of those accused of a crime does not

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outweigh an individual’s specific, substantial interest in clearing his or her record. Id. at 881–82.

In addition, Wexler explicitly placed the burden of proof on the Commonwealth. The case against the Wexler appellants had been nolle prossed after the Commonwealth had admitted that it would be unable to sustain its burden of proof at trial. Wexler, supra at 880. Nonetheless, the trial court denied the appellants’ petition to expunge their arrest records, and the Superior Court affirmed. [The Supreme] Court reversed and ordered expungement, concluding that the Commonwealth had not proffered “compelling evidence” to justify the retention of the appellants’ arrest records. Id. at 881. Importantly, in general terms, we held that when the Commonwealth admits that it is unable to bear its burden of proof beyond a reasonable doubt at trial, then “the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.” Id. at 880.

Id. at 993–94.

The defendant’s right to seek expungement of records in a nolle prossed

case does not arise from Pennsylvania’s expungement statute, 18 Pa.C.S.A. §

9122. Moto, 23 A.3d at 993-94. Instead, it is a constitutional right based on

principles of substantive due process. As Wexler states,

[t]he serious harm an individual may suffer as a result of the Commonwealth’s retention of an arrest record has been set forth in Commonwealth v. Malone, 244 Pa. Super. 62, 68-69, 366 A.2d 584, 587-88 (1976). Because of this potential hardship, the Court in Malone recognized that in certain circumstances substantive due process guarantees an individual the right to have his or her arrest record expunged.

Wexler, 431 A.2d at 879.

The trial court correctly acknowledged that the Wexler test governed

Appellant’s motion to expunge the records in his five nolle prossed cases.

Pa.R.A.P. 1925(a) Opinion, 2/3/23, at 7, 9. The focus of this appeal is to

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determine whether the court properly exercised its discretion in applying this

test.

Regarding the first Wexler factor, the strength of the Commonwealth’s

case against Appellant, the court asserted that “the Commonwealth’s case

against expungement was strong after considering the evidence.” Id. at 10.

The court explained:

Appellant’s secured criminal history reflects six criminal matters, all involving identical charges of violating a [PFA] order pertaining to the same complainant (one of the criminal matters Appellant pled nolo contendere and received six months of probation). Furthermore, this court considered the PARS Reports of the criminal matters under expungement consideration, which detail Appellant’s criminal acts associated with the violations of the protection from abuse order.

Id.; see also id. at 10 (“the court properly considered the strength of the

Commonwealth’s case against the Appellant when it denied the petitions”)

(citations to record omitted). We are constrained to disagree with this

assessment.

Appellant was convicted in a separate case in 2007 for violating a PFA

order relating to his wife (a third-degree misdemeanor) and harassment (a

summary offense). The five nol prossed cases arise from accusations by

Appellant’s former wife in mid-2008. There was no preliminary hearing in any

of these cases, so the Commonwealth never formally presented a prima facie

case against Appellant. Nor was there any trial because the Commonwealth

withdrew all charges. Nor did the Commonwealth furnish any testimony

relating to these cases during the hearing on Appellant’s expungement

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petition. Despite this lack of evidence, the court found “strong” evidence

against Appellant in the five records based on the PARS reports generated at

the time of Appellant’s five arrests.

Further, the PARS reports did nothing more than recite allegations

against Appellant. They were not sworn statements; they were not subject to

cross-examination; and they did not provide a factfinder with an opportunity

to assess witness credibility. They were nothing more than hearsay—that is,

“a statement that (1) the declarant does not make while testifying at the

current trial or hearing; and (2) a party offers in evidence to prove the truth

of the matter asserted in the statement.” Pa.R.E. 801(c) (definition of

hearsay). Had the 2008 cases proceeded to trial, limited to the evidence in

the expungement record, the court would have entered judgments of acquittal

at the conclusion of the Commonwealth’s case-in-chief, because the PARS

records would have been inadmissible as hearsay, and the remaining evidence

(the PFA order and Appellant’s 2007 conviction for violating this order) would

not have established criminal misconduct in 2008. We therefore find the court

abused its discretion by determining that the PARS reports provided strong

evidence against expungement.3

3 We do not wish to suggest that the insufficiency of the evidence in the record

automatically entitles a defendant to expungement when his case is nolle prossed. The lack of evidence in the record might be due to other factors that do not support expungement. For example, the record might lack information because the complaining witness is too scared to come to court to testify. For (Footnote Continued Next Page)

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Turning to the second Wexler factor, the Commonwealth’s reason for

retaining the records, the court stated:

The Commonwealth’s reasons for retaining the criminal history information are due to the repetitiveness and nature of the Appellant’s domestic violence course of conduct. The court agreed with the Commonwealth after it considered the Appellant’s secured criminal history and PAR[S] Reports.

Opinion at 10-11 (citations to record omitted). The court adopted the position

taken by the Commonwealth during the expungement hearing, wherein the

prosecutor stated:

[T]he record as presented shows a course of conduct with respect to the same complainant. And the Commonwealth has a strong interest in maintaining information based on that course of conduct. [W]hile the age of the case is … not so recent it does take place in the 2000’s. The nature of each transcript is similar showing a disregard for a court order.

N.T., 7/25/22, at 7. We conclude again the trial court abused its discretion in

determining that the Commonwealth had a strong interest in maintaining

these records. The only evidence suggesting “repetitive” behavior or a

“domestic violence course of conduct,” to use the trial court’s terms, were (1)

Appellant’s PFA order and 2007 conviction and (2) hearsay allegations in the

PARS reports about Appellant’s 2008 conduct. As discussed above, this

evidence would not have survived a motion for judgment of acquittal in a

this reason, we emphasize that even when the Commonwealth’s case lacks strength, it still is necessary to evaluate the other Wexler factors as well as other factors that the court deems pertinent. See Moto, 23 A.3d at 993 (Wexler’s list of five factors is “non-exhaustive”).

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criminal trial due to legal insufficiency. Given the weakness or lack of

evidence—particularly the unreliability of the hearsay allegations of 2008

misconduct—the court exercised its discretion improperly in determining that

the Commonwealth had a strong interest in retaining Appellant’s records.

The court failed to evaluate the next two Wexler factors: (1) Appellant’s

age, criminal record, and employment history, and (2) the length of time that

has elapsed between his arrests and the petition to expunge. The record

shows that at the time of his petition to expunge, Appellant was 65 years old

and had remained arrest-free for thirteen years following the charges in 2008.

Moreover, over thirteen years elapsed between the withdrawal of charges and

Appellant’s petition for expungement. The court abused its discretion by

failing to take these factors into consideration.

In another case applying Wexler to a domestic violence case, we held

that a one-year hiatus between dismissal of the charges due to the wife’s

refusal to testify and the filing of the expungement petition was too short,

“when one considers that the statute of limitations for the instant offenses

was two years.” Commonwealth v. Drummond, 694 A.2d 1111, 1114 (Pa.

Super. 1997). Here, unlike in Drummond, Appellant did not file his

expungement petition prematurely. He waited over a decade after expiration

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of the statute of limitations on the most serious charge against him 4 before

filing his expungement petition.

We turn to the court’s analysis of the fifth Wexler factor, the adverse

consequences the petitioner might endure should expungement be denied.

The court properly determined that Appellant failed to present any evidence

that retention of the records will cause him economic harm. Nevertheless, the

court abused its discretion by concluding that retention of the records presents

no danger to Appellant’s reputation because the records are sealed and are

not available to the public. Opinion at 11-12.

Our Supreme Court rejected a similar argument in Wexler, in which

one of the petitioners was a child whose arrest record was sealed following

completion of her probation. The Wexler court rejected the argument that

sealing the record adequately protected the child, reasoning that members of

the public far too often gain access to sealed police records to which they

should not have access. Wexler, 431 A.2d at 882. Therefore, the court

determined that expungement was necessary even when the record was

sealed from public view. The same reasoning applies here: sealing Appellant’s

records does not completely safeguard them from public access.

4 The most serious charge was Appellant’s alleged violation of the PFA order,

which was graded as a third-degree misdemeanor and thus had a two-year statute of limitations. See 42 Pa.C.S.A. § 5552(a).

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The court also asserted that denial of expungement of the 2008 records

will not prejudice Appellant because he did not move to expunge his 2007

arrest and nolo contendere plea. Opinion at 12. This reasoning might have

force when a petitioner has an extensive history of convictions. See, e.g.,

Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014) (affirming denial of

expungement where petitioner was incarcerated at time of expungement

hearing and had vast array of state and federal convictions). Here, however,

the 2007 case is Appellant’s only other contact with the criminal justice

system. Prospective employers and other members of the public are likely to

judge Appellant more harshly if they have access to six arrest records instead

of only one. Stated another way, access to six arrest records will harm

Appellant’s reputation more than access to one record.

Noting that Wexler’s list of factors is not exhaustive, the trial court

added one additional factor for denying expungement—its determination that

Appellant’s testimony during the expungement hearing was not credible. The

court opined:

Appellant testified “I never bothered [the complainant],” “I never harmed [the complainant],” and “I’ll never forgive [the complainant] ...“ This court found Appellant’s testimony not credible due to the fact on August 10, 2007, Appellant pled nolo contendere to identical charges that dealt with the same complainant, in which Appellant received six months of probation.

Opinion at 12-13. The court suggests that it did not believe Appellant’s

testimony, and that it did believe Appellant continued to harass his former

wife in 2008, simply because Appellant pled guilty to violating the PFA order

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in 2007. The court’s suspicion that Appellant continued to harass his wife in

2008 lacks an evidentiary foundation. The 2008 records contain nothing more

than hearsay, and the Commonwealth presented no evidence during the

expungement hearing that Appellant engaged in any misconduct after 2007.

Thus, the court improperly concluded that Appellant’s testimony warranted

denial of expungement.

In short, we conclude that the court’s analysis of the Wexler factors

constituted an abuse of discretion. The allegations in the records post-2007

admitted to argue against expungement are pure hearsay that have never

been substantiated; the Commonwealth has not demonstrated a strong or

valid interest in retaining these records; over thirteen years passed between

withdrawal of the 2008 cases and Appellant’s petition to expunge the 2008

records; Appellant is now a senior citizen and has had no other contact with

the criminal justice system besides the 2007 PFA order conviction, and the

unsubstantiated 2008 cases; and the fact that the 2008 records are sealed

does not guarantee that they are inaccessible to the public. With regard to

the non-Wexler factor raised by the trial court, the fact that the court did not

find Appellant’s expungement hearing testimony credible does not

demonstrate that Appellant engaged in any misconduct after his 2007

conviction.

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For these reasons, we conclude that the court abused its discretion by

denying Appellant’s expungement petition. We reverse and remand with

instructions to expunge all records relating to Appellant’s 2008 cases.

Order reversed. Case remanded with instructions to expunge all records

relating to Appellant’s 2008 cases. Jurisdiction relinquished.

Date: 6/3/2024

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