The 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
v.
TERRANCE BROWN
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
____________________________________________
9
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.
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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
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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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