J-S73030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
LORI DENISE HEFFNER
Appellant No. 958 MDA 2014
Appeal from the Order Entered May 8, 2014 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001723-2011
BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED APRIL 07, 2015
Lori Denise Heffner appeals from the May 8, 2014 order denying her
petition to expunge. We affirm.
Due to events that occurred on March 23, 2011, Appellant was
charged with two counts of felony retail theft, and one count each of
receiving stolen property, false identification to law enforcement, and
unsworn falsification to authorities. These charges were based upon the
following allegations contained in the affidavit of probable cause attached to
the criminal complaint.
Loss prevention officer Jerome Mohler of Redner’s Warehouse Market
(“Redner’s”), which was located on 1149 Berkshire Boulevard, Wyomissing,
called police to the store. Wyomissing Police Officer Scott Schaeffer J-S73030-14
responded, and Mr. Mohler reported the following. He had observed
Appellant enter the store, place a box of Glad trash bags and two bottles of
Burt’s Bee wash in her purse, and enter the public restroom. After spending
twenty minutes there, Appellant exited the bathroom, walked past the cash
registers, and exited the store without paying for the merchandise in her
purse. Mr. Mohler and another employee apprehended Appellant and took
her to the office, where they discovered the three stolen items in her
handbag with the UPC stickers removed.
When Officer Schaeffer arrived at the market, Appellant refused to
provide her name and address but did offer a description of the vehicle that
she drove to Redner’s. Officer Schaeffer found the vehicle in the store
parking lot and discovered that it was owned by Michael Heffner. Using Mr.
Heffner’s address, Officer Schaeffer learned that a woman named Lori D.
Heffner resided with him. The driver’s license photograph of Lori D. Heffner
matched Appellant, who denied that she was Lori D. Heffner and stated that
her name was Lori Maxton. Appellant also gave a birthdate different from
that listed for Lori D. Heffner. Appellant had a criminal record for “two prior
convictions (1999 and 2005) for retail theft in Berks County.” Affidavit of
Probable Cause, 4/27/11, at 1.
After the present criminal charges were filed, there were various status
conferences. Trial was scheduled on two separate occasions but the
scheduling orders were vacated. A bench warrant was issued for Appellant’s
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arrest on January 24, 2013, after she failed to appear at a January 22, 2013
status hearing. The warrant was lifted, and on February 7, 2013, Appellant,
not the Commonwealth, applied for a competency hearing. Although the
motion for declaration of competency indicated that Appellant expected to
regain competency in the near future, the court’s finding after a hearing on
that motion was to the contrary.
Specifically, the trial court concluded both that Appellant was
incompetent and that her condition would not improve in the foreseeable
future. The hearing and exhibits introduced at that proceeding are not
contained in the record since the trial court sealed the record of the hearing
as well as reports from a doctor. Hence, we are not able to ascertain the
reasons for the trial court’s ruling. Based upon the trial court’s ruling, the
inference is that the reports submitted by Appellant indicated that her
mental competency would not be regained in the foreseeable future. The
court dismissed the charges under 50 Pa.C.S. § 7403(d),1 which provides, in
1 That statute states in its entirety:
Whenever a person who has been charged with a crime has been determined to be incompetent to proceed, he shall not for that reason alone be denied pretrial release. Nor shall he in any event be detained on the criminal charge longer than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If the court determines there is no such probability, it shall discharge the person. Otherwise, he may continue to be criminally detained so long as such probability
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pertinent part, that if a person charged criminally is adjudicated incompetent
and if the court ascertains that there is no “substantial probability that [the
defendant] will attain [his mental] capacity in the foreseeable future,” then
the court “shall discharge the person.”
Appellant filed her expungement motion on February 25, 2014, only
one year after she asked to be declared incompetent and obtained dismissal
of the aforementioned criminal charges based upon a finding that there was
no substantial probability that she would regain her capacity in the
foreseeable future. In her petition, Appellant did not outline any
employment history nor did she state whether, and to what extent,
treatment had improved her mental health. The petition contains a bare
allegation that retention of the record herein would “adversely affect future
employment prospects and will prejudice [Appellant’s] standing in the
community.” Petition to Expunge Criminal Record, 2/25/14, at 1. Appellant
did not outline that she had applied for and been rejected for any specific job
due to the record in this matter, and failed to provide proof of her criminal
history.
The Commonwealth objected to the grant of the petition to expunge
and noted that Appellant failed to attach a current copy of her criminal
exists but in no event longer than the period of time specified in subsection (f).
50 P.S. § 7403(d).
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record, as required by the rules of criminal procedure. It further outlined
that its proof against Appellant had been exceptionally strong and that
Appellant’s claimed harm was illusory due to the fact that she already had
convictions for retail theft and fleeing and eluding police.
The trial court issued an order requiring Appellant to file a copy of her
criminal record. Appellant complied with that directive. She pled guilty to
retail theft on June 9, 1999, and on March 30, 2002, she pled guilty to
fleeing or attempting to elude a police officer, recklessly endangering
another person, and driving while her license was suspended or revoked.
The trial court denied the expungement motion, and this appeal
followed. Appellant raises the following contentions: “1. Did the trial court
err in failing to hold a hearing on defendant's Petition for Expungement?”
and “2. Did the trial court err in denying the Expungement Petition?”
Appellant’s brief at (unnumbered page) 4.
Appellant first contests the fact that she did not receive a hearing and
notes that Pennsylvania law mandates that one be held on a petition to
expunge. Herein, the trial court scheduled a hearing for April 15, 2014, and
Appellant’s counsel opened by stating that he was not served with notice of
the hearing date. The trial court ascertained that Appellant rather than her
counsel received the notice in question. When asked what he wanted to do,
counsel did not ask that the hearing be rescheduled nor did he indicate that
he had evidence that he wanted to present. Instead, counsel responded
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that he wanted the Commonwealth to review his brief. The court then asked
if there were any expungement cases dealing specifically with dismissal of
charges based upon a finding of incompetency, and counsel responded that
he could not find any case law in that respect. The proceedings adjourned.
We conclude that, under the circumstances, Appellant waived her right
to a hearing. A hearing was duly scheduled on Appellant’s expungement
request. At the designated time and place, Appellant’s counsel appeared.
When asked specifically what he wanted to do about the fact that Appellant,
rather than her counsel, received notice of the hearing, counsel did not ask
for a continuance nor did he suggest that there was evidence to present in
support of the expungement petition beyond that already outlined therein.
Likewise, on appeal, Appellant does not delineate any proof she would
present at a hearing if we remanded for one. Appellant’s failure to request
another hearing on April 15, 2014, is fatal to her ability to contest the failure
to conduct a hearing now on appeal. Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.”).
Appellant next avers that the trial court erred in denying the
expungement petition. Our Supreme Court recently reinforced the principles
applicable to a defendant’s request for expungement in Commonwealth v.
Wallace, 97 A.3d 310 (Pa. 2014). First, the Court reinforced that, “The
decision to grant or deny a petition for expungement lies in the sound
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discretion of the trial court, which must balance ‘the individual's right to be
free from harm attendant to maintenance of the arrest record against the
Commonwealth's interest in preserving such records.’” Id. at 317 (quoting
Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981)).
Additionally, the right to expungement, which can be a component of
due process, differs according to the disposition of the charges in question.
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. When a petitioner has been tried and acquitted of the offenses charged, we have held that the petitioner is automatically entitled to the expungement of his arrest record. 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 the maintenance of the arrest record against the Commonwealth's interest in preserving such records.
Wallace, supra at 317-18 (quoting Commonwealth v. Moto, 23 A.3d
989, 993 (2011)). Five factors are weighed where neither an acquittal nor a
conviction is at issue in the matter:
(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; (5) and the specific adverse consequences the petitioner may endure should expunction be denied.
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Wallace, supra at 318 (quoting Wexler, supra at 879). This list is not
exhaustive and the facts of each particular case must be carefully weighed.
Moto, supra.
The burden of proof in the expungement setting is dependent upon the
nature of the Commonwealth’s proof as to the crimes. If the Commonwealth
cannot carry its burden of proof or admitted prior to trial that it could not
establish the crimes beyond a reasonable doubt, then the Commonwealth
bears the burden of justifying why the arrest record should not be expunged.
Moto, supra; Wexler, supra.
The importance of our deferential standard of review cannot be
overstated. In Wallace, supra, the defendant, who was incarcerated, had a
significant criminal history spanning many years. The defendant sought the
removal of records of multiple charges that did not result in conviction. The
defendant’s request for expungement was denied without a hearing. The
trial court concluded that the Commonwealth’s interest in retaining the
records outweighed the adverse consequences to the defendant if
expungement was granted. The Commonwealth reported that it sought to
retain all the records as a relevant consideration should the then-
incarcerated defendant be paroled and thereafter violate that parole.
Defendant claimed the retention of his arrest records would stigmatize him.
The trial court rejected defendant’s position based on the existence of
a record of many charges that resulted in convictions. It did not consider
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any other factor in its decision denying expungement. This Court reversed
and concluded that the defendant was entitled to a hearing and separate
consideration as to whether each charge not leading to conviction should be
expunged. We opined that some of the charges might be eligible for
expungement. Our Supreme Court disagreed and reinstated the trial court
order, which rested, as noted, on the defendant’s inability to prove harm
from retention of the arrest records since he already had criminal
convictions.
In another recent decision, Commonwealth v. Moto, 23 A.2d 989
(Pa. 2011), the Supreme Court also reversed one of our decisions granting
expungement in face of the trial court’s denial of that relief. Therein, in
1987, the defendant was convicted of rape, involuntary deviate sexual
intercourse, robbery, and conspiracy after the victim of those crimes
unequivocally and positively identified him as one of two men who attacked
her. The victim also testified that, during the defendant’s trial, the other
perpetrator stopped her and threatened to kill her and her children if she
testified against the defendant.
After he was convicted, the defendant obtained a new trial in 1995
based upon DNA evidence from the victim’s underwear, which contained
sperm from three men who were not the defendant. The Commonwealth
was not able to proceed to a second trial since it could not locate the victim,
who fled the area due to continued threats. The Commonwealth withdrew
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the charges in 1996. The defendant then asked for expungement in 2007.
During the proceedings, the Commonwealth produced witnesses establishing
that the evidence that resulted in the grant of a new trial did not necessarily
exonerate the defendant. Specifically, DNA of sperm can remain on clothing
for years, even after the clothing is laundered, and the defendant may not
have ejaculated during the event. The Commonwealth reported that its
decision not to retry the defendant was due solely to its inability to locate
the victim. The Commonwealth sought to retain the criminal record since
Appellant had been convicted and based upon the inclusive nature of the
DNA proof.
In declining to award expungement, the trial court relied upon the
strength of the Commonwealth’s case, that fact that the defendant was
convicted before being granted a new trial, and the public’s interest in
retaining the arrest record of a person who was convicted of serious crimes.
We reversed the trial court based upon a conclusion that the Commonwealth
had not met its burden of proof and that expungement was denied based
upon consideration of only one factor, which was the strength of the
Commonwealth’s case during trial.
Our Supreme Court, in turn, reversed this Court. As it had in
Wallace, our High Court admonished us that the decision as to the grant or
denial of an expungement request “rests with the sound discretion of the
trial court, and we review that court's decision for abuse of discretion.”
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Moto, supra at 993. The Moto Court rejected our conclusion that the trial
court did not consider all of the Wexler factors. It noted that the trial court
indicated that it had performed the Wexler analysis and ruled that we were
required to defer to that representation, even though the trial court did not
specifically address each factor outlined in Wexler. Our Supreme Court
continued that the trial court was permitted to deny expungement by placing
great weight on one factor, which, in that case, was the strength of the
Commonwealth’s case against the defendant. The Moto Court also observed
that the defendant had a history of arrests. Since the trial court applied the
proper standard to the facts of the case, it did not abuse its decision, and
this Court erred in reversing it. Moto, supra.
In this case, it is clear that the trial court did not abuse its discretion in
concluding that expungement was not warranted. Indeed, this case is legally
indistinguishable from Moto since Appellant had a history of criminal
convictions similar to those at issue in this case and since the
Commonwealth had compelling evidence that Appellant committed the
crimes in question.
The trial court in this matter did initially indicate that it did not believe
that the Wexler factors were implicated in this case. However, it continued
that “[e]ven if Wexler is applicable, expungement would still not be
appropriate.” Trial Court Opinion, 7/7/14, at 8. The court outlined that,
based upon its review of the file, “it appeared that the Commonwealth had a
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strong case against the Petitioner.” Id. The court also considered the fact
that Appellant already had a record and opined that the “existing criminal
record” demonstrated that “retention of the records at issue is not an
onerous adverse consequence for the Petitioner.” Id. at 9.
The court additionally found a public interest in retaining the record.
Specifically, “In any dealings law enforcement and prospective employers
might have with the Petitioner, they need to be aware of the Petitioner’s
potential for dishonesty, whether the intentional products of cognitive
thought or the by-product of mental infirmity, as well as her potential for
lack of comprehension of her actions and their consequences.” Id. at 9.
The court further noted that Appellant made no attempt to cite “even one
specific instance of a prospective employer denying her employment
because of the currently contested public record.” Id.
When a defendant is absolved from criminal responsibility due to his
mental state, the disposition of the charges is not viewed as an acquittal.
Commonwealth v. B.C., 936 A.2d 1070 (Pa.Super. 2007) (defendant found
not guilty by reasons of insanity). Rather, the verdict is a finding that the
defendant committed the act but cannot be held legally accountable due to
his mental condition. Id. In B.C., we upheld a trial court’s refusal to
expunge the record, even though the defendant specifically outlined that he
had been unable to secure a job due to his arrest record. We considered the
fact that the defendant was not found innocent of committing the acts in
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question as well as the lack of evidence that the defendant’s mental
condition had improved. See also Commonwealth v. V.G., 9 A.3d 222
(Pa.Super. 2010) (affirming denial of expungement of defendant who pled
nolo contendere but mentally ill).
Appellant herein obtained dismissal of these charges based on her
inability to communicate with her lawyer in defending this case rather than
based upon innocence. Indeed, the Commonwealth’s case was strong.
There was an eyewitness to Appellant’s theft of three items from a retail
establishment. Appellant gave a false name and date of birth to a police
officer.
Since the Commonwealth did establish that it could have obtained a
conviction herein founded upon the evidence, it satisfied its burden of proof
and did not need to articulate any justification for its retention of the
records. In this respect, we note that Appellant asserts herein that the
Commonwealth had a “heavy burden of producing compelling evidence that
the arrest records should be retained.” Appellant’s brief at (unnumbered
page) 8. In this respect, Appellant relies upon Commonwealth v. Hanna,
964 A.2d 923 (Pa.Super. 2009). However, Hanna was merely articulating
the rule of law announced in Wexler. The full Hanna quote is as follows:
In Wexler, [supra,] the Commonwealth nolle prossed charges against a defendant based on the prosecutor's assessment that it could not prove the charges beyond a reasonable doubt. The Court held that under those circumstances, the defendant was entitled to an expungement
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hearing where the Commonwealth bore a heavy burden of producing compelling evidence that the arrest records should be retained, using a multi-factor test.
Hanna, supra at 925-26 (emphasis added).
Thus, Appellant’s recitation of the Commonwealth’s burden of proof in
this case is incorrect. The prosecutor never made an assessment that these
charges could not be proven, and they were decidedly not nolle prossed. To
the contrary, the Commonwealth satisfied its burden of proving that it could
have obtained a conviction. Thus, Appellant errs in suggesting that the
Commonwealth had to justify its decision to oppose expungement. In
addition, the trial court articulated a valid public interest in maintenance of
these records. The public should be aware of Appellant’s history of an
inability to control herself to avoid dishonest activity.
Moreover, Appellant’s asserted interest in expungement is that this
criminal record will adversely affect her ability to gain employment and her
community standing. As noted by the Commonwealth, this concern is
illusory given her prior convictions of retail theft and fleeing or eluding
police, which are similar or identical to the charges at issue in this case.
Wallace, supra.
Appellant, who was in her mid-50s, never proffered a single instance
where she applied for and was denied employment based upon this arrest
record and did not outline any past employment history. Only two years
elapsed between the crimes and the expungement request. Finally,
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Appellant produced no evidence that she had improved her mental condition
so that she would no longer commit these types of criminal actions due to
her inability to comprehend that they were wrong. This omission is a critical
consideration in this matter under B.C., supra.
There is not a single factor outlined in Wexler that militates in favor of
expungement in this case, and the trial court did not abuse its discretion.
In her argument maintaining that expungement is mandated, Appellant
would have us ignore the Wexler factors and singularly focus on the fact
that the record herein contains a finding that she was incompetent.
Appellant maintains:
The public web docket sheets available at the Unified Judicial System's website . . . state that defendant was "declared incompetent" and that she was incompetent to stand trial. It is also noted that a hearing was held under the mental health procedures act. See attached appendix C with highlighted portions.
The public docket sheets repeatedly note that Appellant was declared incompetent, incompetent to stand trial. These docket sheets are available for any member of the public to read with a simple search of Appellant's name. This is certainly prejudicial to appellant's standing in the community.
....
The first reason for expungement is the very public and open records that (available to anyone with internet access) that defendant was "declared incompetent" and was subject to hearings under the mental health act. Pennsylvania has a strong privacy and confidentiality interest concerning the treatment of the mentally ill. See 50 P.S. [§] 7111 and 42 [Pa.C.S.A. §] 5944.
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Appellant’s brief at (unnumbered pages) 7-8, 9. See also id. at 9 (“Clearly
the Wexler factors are not absolute[;] the Court must consider the harm of
having defendant’s mental health matters available to the general public.”);
Id. (“Appellant submits it is almost impossible to get a job with public
records stating she was ‘declared incompetent.’ Having any member of the
public able to read official court records describing you as incompetent is
embarrassing and hurtful.”); Id at 10 (“The adverse consequences are
clear[;] defendant’s mental health issues have been made part of the public
record and this will continue to stigmatize defendant if this expungement is
not granted.”); Id. (“Having a criminal record is one thing. Having a
permanent public record of mental illness and being ‘declared incompetent’
is another.”)
Simply put, we cannot override the trial court’s discretion, ignore all
the Wexler factors, and grant expungement based solely upon an alleged
social stigma attached to Appellant’s incompetency finding. Under Wallace
and Moto, we are prohibited from re-weighing the factors utilized in an
expungement decision. Of great significance is the following. It was
Appellant herself who sought the incompetency determination. It was only
as a result of this ruling that Appellant obtained dismissal of these charges in
the first instance. Thus, it was Appellant’s decision to place an
incompetency determination on the record in this matter. Absent Appellant’s
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own request to be declared incompetent, she faced overwhelming evidence
of guilt and a conviction.
Our decision to reject this particular argument also is premised upon
the fact that Appellant failed to proffer that her mental condition has
improved to any extent so that she is unlikely to commit these types of
crimes in the future.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/7/2015
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