Com. v. Brown, T.

• Court: Superior Court of Pennsylvania
• Decided: August 21, 2014
• Docket: 2971 EDA 2012
• Status: Unpublished

Opinion

J-A09021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TERRANCE BROWN

Appellant No. 2971 EDA 2012

Appeal from the Order September 27, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): No. CP-51-CR-0218841-1992

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

Appellant No. 2972 EDA 2012

Appeal from the Order September 27, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): No. MC-51-CR-0006654-2011

BEFORE: BOWES, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 21, 2014

Terrance Brown brings these consolidated appeals from the orders

entered in the Philadelphia County Court of Common Pleas on September

27, 2012, denying his petitions for expungement of his criminal record in

two prior cases. On appeal, Brown argues the trial court abused its J-A09021-14

discretion in denying his petitions for expungement. For the reasons set

forth below, we affirm in part, and reverse in part.

The facts underlying these appeals are as follows. On June 6, 2012,

Brown filed petitions for expungement of charges in three separate cases.

The first involved charges filed in 1985, for which he was ultimately found

not guilty. The trial court granted this petition,1 and that case is not before

us on appeal. Brown, however, also sought to expunge charges filed in

1992 and 2011.

charges of possession of a controlled substance and possession with intent 2 The Commonwealth withdrew

the charges four months later on May 8, 1992.3

The 2011 charges, involving simple assault and recklessly endangering 4 stem from a dispute with his then girlfriend.5 A ____________________________________________

1 N.T., 9/27/2012, at 5. 2 35 P.S. §§ 780-113(a)(16) and (a)(30). 3 The original record from this arrest has been lost. See Trial Court Opinion,

record, which includes only the criminal docket. 4 18 Pa.C.S. §§ 2701 and 2705. 5

question, dragged her out of a car, pushed her against the vehicle, (Footnote Continued Next Page)

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order was issued because domestic violence was alleged. Investigation

Report, 2/16/2011, at 1. The case was continued on March 21, 2011, when

both Brown and the complaining witness failed to appear in court. At the

next listing on April 14, 2011, the Commo

appear. The Commonwealth then withdrew the charges on July 28, 2011.

The trial court held a Wexler6 hearing on September 27, 2012, at

which time defense counsel acknowledged that Brown was presently serving

bation for a recent theft conviction.7 The only testimony

offered at the hearing was from Brown, during which he acknowledged he

had been a practicing nurse for 19 years, although he claimed that he had

been denied employment in two instances as a result of the 1992 and 2011 _______________________ (Footnote Continued)

Affidavit, 7/2/2010, at 2. 6 Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981). 7 Although the details of the recent theft charges are not in the certified record, the trial court provided the following background in its opinion:

In June 2011, [] Brown was arrested and charged with Insurance Fraud and Conspiracy to Commit Insurance Fraud, both felonies, as well as Attempted Theft by Deception, a misdemeanor. The charges were apparently related to events occurring in 1996, and [] Brown pled guilty to the misdemeanor in exchange for the Commonwealth nolle prossing the two felonies. [] Brown was sentenced to two years probation on Sept. 19, 2012.

Trial Court Opinion, 6/18/2013, at 1-2 (footnotes and internal citation omitted).

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remaining two petitions for expungement. These timely appeals followed.8

On appeal, Brown argues the trial court abused its discretion in

denying his petitions for expungement. Specifically, he contends the trial

court failed to place the initial burden on the Commonwealth to justify the

retention of his non-conviction records with specific, compelling reasons.

Moreover, Brown argues that even if we determine that the Commonwealth

met its initial burden, the trial court abused its discretion in finding the

Wexler factors weigh in favor of retention of the records.

[t]he decision to grant or deny a petition

to expungement lies in the sound discretion of the trial court, who must

Commonwealth v. Wallace, ___ A.3d ___,

2014 WL 3579692, *6 (Pa. filed 7/21/2014), quoting Wexler, supra, 431

A.2d at 879.

____________________________________________

8 On October 15, 2012, the trial court ordered Brown to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Brown complied with th statements for each case on November 2, 2012.

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In Commonwealth v. Moto, 23 A.3d 989 (Pa. 2011), our Supreme

petition for expungement of criminal records:

Judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner. 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. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania State Police, 603 Pa. 156, 983 A.2d 627, 633 (2009). When a petitioner has been tried and acquitted of the offenses charged, we have held Commonwealth v. D.M., 548 Pa. 131, 695 A.2d 770, 772 73 (1997). When a prosecution has been terminated without conviction or acquittal, for reasons such as nolle prosse of the charges or the

free from the harm attendant to maintenance of the arrest

Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa.1981); D.M., supra Wexler and the balancing test approved therein as the means of deciding petitions to expunge the records of all arrests which are

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

reasons the Commonwealth gives for wishing to retain the

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).

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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

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

Superior Court affirmed. [The Supreme] Court reversed and ordered expungement, concluding that the Commonwealth had the retention of 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 urden of Id. at 880.

Id. at 993-994.

Therefore, pursuant to Wexler and its progeny, the Commonwealth

-conviction

records when, as here, the charges were dismissed by the Commonwealth

before trial.

In his first issue, Brown argues Wexler -step process

must meet its initial burden of providing specific, compelling reasons to

-conviction records. Only after the

Commonwealth has met its initial burden may the trial court engage in a

balancing of the Wexler factors. See id.

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We do not agree that Wexler and its progeny require the

Commonwealth to overcome an initial hurdle before the trial court may

weigh the Wexler factors. It is clear that in a case in which the charges

against a defendant were dismissed before trial, the Commonwealth bears

the ultimate burden of justifying retention of his criminal records. Moreover,

this Court has explained:

[The Wexler factors] serve as guidance to the court in determining whether the Commonwealth has met its burden. Those factors do not shift the burden of persuasion to the petitioner. If the petitioner does not show great harm or prejudice by retention of the records, such a showing may be considered in a balancing test, but the ultimate burden of proof and persuasion is upon the Commonwealth.

Commonwealth v. McKee, 516 A.2d 6, 9 (Pa. Super. 1986). The cases do

not, however, require the trial court to forgo consideration of the Wexler

factors when the Commonwealth initially fails to provide sufficient, 9 Rather,

as our Supreme Court stated in Commonwealth v. D.M., 695 A.2d 770,

[a]ll the factors listed in Wexler, and similar additional

considerations, should be evaluated in expunction cases which are

terminated without conviction for reasons such as nolle prosequi

(emphasis supplied). Therefore, we decline to create a two-part test, as

reasons would weigh heavily in favor of expungement.

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suggested by Brown, requiring the Commonwealth to provide compelling

-conviction record before

permitting the trial court to consider the Wexler factors.10 Accordingly, his

first argument fails.

Next, Brown argues the trial court abused its discretion in concluding

that the Wexler factors in the present case weigh in favor of retention of his

1992 and 2011 non-conviction records when the Commonwealth failed to

present any reasons supporting retention of the records at the Wexler

hearing, and the remaining factors weigh in favor of expungement.

Although the certified record includes relevant documents pertaining to

of testimony from the Wexler hearing in the present case reveals that the

Commonwealth offered no witnesses or argument in support of its position

cords should be maintained. In fact, the entire

alleged prejudicial effect his arrest record has had on his ability to find

10 Wexler hearing would be unnecessary if the Commonwealth did not initially respond to the expungement petition with sufficient, compelling reasons justifying retention of the criminal records. Brown does not present any authority for this requirement and our research has revealed no such condition precedent.

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employment as a nurse.11 See N.T., 9/27/2013, at 1-10. We also note that

the trial court, in its initial ruling before Brown was afforded the opportunity

to testify, denied the expungement petitions, presumably because Brown

was on probation for another, more recent charge.12 See Docket Entry,

9/27/2012 (stating

criminal record is a factor for the trial court to consider when determining

whether his non- adverse 13 the fact that he is currently on probation does not, alone,

preclude expungement of his prior non-conviction records.14 As set forth in

11 Despite the alleged negative effect of the arrest records, however, Brown admitted he has been employed as a licensed practical nurse for 19 years. N.T., 9/27/2013, at 6. 12 In fact, the trial court mistakenly believed that Brown also petitioned to expunge two charges related to his most recent theft plea. See Trial Court Opinion, 6/18/2013, at 6-8. However, a review of the record reveals Brown filed only three petitions: the first, seeking to expunge the 1985 charges for which he was acquitted, and the other two seeking to expunge the 1992 drug charges and the 2011 domestic violence charges. Therefore, the trial nolle prossed in exchange

13 Wexler, supra, 431 A.2d at 879. 14 We note that in Wallace, supra, the Pennsylvania Supreme Court not have the right to petition for expungment while incarcerated Wallace, supra, at *10 (emphasis supplied). Since, in the present case, Brown is not incarcerated, the pronouncement in Wallace does not affect our decision.

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D.M. and Wexler, a trial court should consider all the factors.15 See

Wexler, supra, 431 A.2d at 879; D.M., supra, 695 A.2d at 773.

Nevertheless, for the reasons that follow, we agree that the record reveals

With regar

of the certified record,

and in particular, the transcript from the expungement hearing, reveals the

Commonwealth failed to meet its burden of providing any reason, let alone

a compelling one, to justify retention of these 20-year-old drug charges, and

none is apparent on the face of the record. Accordingly, we find the trial

charges.

However, our analysis of the 2011 assault charges leads us to a

different conclusion. First, the 2011 charges stemmed from an incident of

15 probationary status in denying his petitions, but rather, considered the Wexler factors and concluded that the Commonwealth met its burden of justifying retention

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domestic violence.16 Moreover, a review of the docket entries in that case

reveals that the Commonwealth was not ready at the first two listings

because the victim failed to appear in court. See Criminal Docket, MC-51-

CR-0006654-2011, 3/21/2011, and 4/15/2011. The Commonwealth then

arrest. Brown sought to expunge the charges less than one year later, on

June 6, 2012.

This C Commonwealth v. Drummond, 694 A.2d

1111 (Pa. Super. 1997), is instructive. In that case, the defendant sought to

expunge domestic violence charges from his record. He was charged with

aggravated assault, simple assault and REAP for allegedly punching his wife

in the face, and scalding her arms and chest with boiling water. The

Commonwealth withdrew the charges after the victim refused to testify

against her husband. The defendant, who had no prior arrests, filed a

petition for expungement less than one year following dismissal of the

charges, which the trial court denied. ____________________________________________

16 In his Reply Brief, Brown chastises the Commonwealth for making

the 2011 charges includes the probable cause affidavit for his arrest, which clearly alleges domestic violence. Moreover, as we noted supra, a pretrial services investigation report included in the record indicates that a stay away order was issued because domestic violence was alleged. Therefore,

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On appeal, this Court affirmed, concluding that the trial court did not

Wexler] factors

weighed in favor o

Id. at 1113. Specifically, this Court found that the Commonwealth had a

since the investigating officer witnessed the vict

Further, although the defendant had no prior arrests, the only adverse

consequences he cited as resulting from the arrest were general claims of

Id. at 1113.

Moreover, this Court found compelling the fact that the petition was

filed less than one year following dismissal of the charges, a time period we

Id. at 114. Lastly, we

emphasized that the statute of limitations for the crimes with which the

cases such as the present one, where the evidence against a petitioner is not

wholly insufficient, a petitioner's record should, at a minimum, be

maintained throughout the applicable statutory period to allow the

Id.

We conclude that the facts in the present case are closely aligned to

those in Drummond. Here, the assault charges against Brown were

Moreover, the probable cause affidavit indicates that the charges were

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substantiated by the investigating officer, who stated that he photographed

7/2/2010, at 2. Lastly, Brown sought to expunge the charges less than one

year after they were dismissed.17

Therefore, the fact that the arrest at issue involved a recent allegation

nurse for the last 19 years, provided the trial court with a sufficient basis to 18 Although we

agree the Commonwealth failed to proffer evidence at the Wexler hearing,19

nevertheless, we conclude that the trial court acted within its discretion

record on appeal, prior to rendering its decision.20 Therefore, we find no ____________________________________________

17 The 2011 charges stemmed from a incident that occurred on June 20, 2010. Therefore, the two year statute of limitations for the charges of simple assault and REAP had not yet expired when Brown filed his expungement petition on June 2, 2012. See 42 Pa.C.S. § 5552(a). 18 We recognize that the trial court denied expungement of the 2011 for different reasons. See Trial Court Opinion, 6/18/2013, at 5-6. However, e trial court, and we may Commonwealth v. Williams, 73 A.3d 609, 617 (Pa. Super. 2013), appeal denied, 87 A.3d 320 (Pa. 2014). 19

initial de 20

as a nurse, specifically a nurse entrusted with taking care of individuals in a

(Footnote Continued Next Page)

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to expunge the 2011 charges.

petition to expunge the 1992 drug charges, and affirm the order denying

Order reversed at docket no. CP-51-CR-0218841-1992. Case

remanded with directions to expunge the record as requested. Order

affirmed at docket no. CP-51-CR-0006542-2011. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/21/2014

_______________________ (Footnote Continued)

not proffer this reason during the Wexler hearing. However, based on

for retention may be inferred from the record. N.T., 9/27/2012, at 6.

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