PHILADELPHIA LAWYERS FOR SOCIAL EQUITY. Expungements: The Silver Lining of the Crimes Code

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1 PHILADELPHIA LAWYERS FOR SOCIAL EQUITY Expungements: The Silver Lining of the Crimes Code Michael Lee, Esquire and Ryan Hancock, Esquire AMENDED JUNE 2016

2 Contents I. The progression Of Expungements... 2 II. The Collateral Consequences of an Arrest Record (Not Exhaustive)... 7 III. Key Cases in Chronological Order

3 I. THE PROGRESSION OF EXPUNGEMENTS I. History of Expungements a. Legislation, public policy, and case law have expanded expungement eligibility in Pennsylvania. i. Although still limited in its application, complete and partial expungement opportunities continue to positively impact individuals and the community at large. b. Expungement jurisprudence continues to recognize the serious negative impact that arrest records has on individuals. 1 c. Pennsylvania courts have long recognized two types of harm appurtenant to the creation and dissemination of arrest records. i. The first type of harm is legislatively generated adverse policies against people with a criminal record history. 2 ii. The second type of harm is socially created or unknown stigmas, stereotypes, and prejudices against people with a criminal record history. 3 d. Before 1976, the expungement landscape in Pennsylvania was highly uncertain as courts struggled with its level of authority to grant an expungement that rid of criminal records related to majority of arrests. i. Expungements were limited to false arrests and expungements under the Controlled Substance, Drug, and Cosmetic Act. 4 Even with the authority in these circumstances, courts struggled to answer the question of when they should exercise the authority. ii. PA courts struggle to find an appropriate balance between the Commonwealth s interest in preserving accurate arrest records and the petitioner s right to be free from the two types of appurtenant harms that flow from an arrest record. iii. Courts were also split on whether the burden rests on the Commonwealth to provide a specific reason to retain a record or on the petitioner to prove reasons demonstrating non-culpability to be eligible for expungement. II. Trend-setting Case Law a. In Commonwealth v. Malone, 5 the Pennsylvania Superior Court held that a petitioner is entitled to a due process hearing for an expungement petition, and the burden is on the Commonwealth to prove reasons for retention of the record. 1 Commonwealth v. Wexler, 494 Pa. 325, 329 (1981) (quoting Commonwealth v. Malone (citation omitted)). 2 Hancock, Ryan, The Double Bind: Obstacles to Employment and Resources for Survivors of the Criminal Justice System, 15 U. PA. J.L. & SOC. CHANGE 515 (2012). 3 Commonwealth v. Malone, 244 Pa. Super. 62, 68, 366 A.2d 584, 588, (1976)( An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise their discretion to bring formal charges against an individual arrested. (quoting Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486, (1970)). 4 Act of April 27, 1972, P.L. 233, no. 64, 19, as amended; 35 P.S Pa. Super. 62, 366 A.2d 584 (1976). 2

4 i. In granting the petitioner s expungement, the court focused on the collateral consequences that arise from acquiring an arrest record, rather than the petitioner s privacy rights. In its reasoning, the court stated, it is not hyperbole to suggest that one who is falsely accused is subject to punishment despite his innocence. Punishment of the innocent is the clearest denial of life, liberty, and property without due process of law. 6 ii. The court referred to predatory police practices of mass arrests during protests and harassment through arrest of hippies and civil rights workers to highlight how not all arrests should be assessed equally. 7 This point grows sharper in the modern world as the practice of clearing drug corners through mass arrest has grown in popularity and sophistication. b. In Commonwealth v. Mueller, 8 the Pennsylvania Superior Court denied the petitioner s expungement petition because the Commonwealth established a prima facie case before the case was dismissed for violating the petitioner s constitutional right to a speedy trial. i. This decision reignited the burden-shifting dilemma that was specifically addressed by the Malone Court The Court in Mueller shifted the burden of proof from the Commonwealth back to the petitioner when a prima facie case was found against the petitioner before the case being dismissed on a legal technicality. 2. This burden-shifting was seen as appropriate because there was sufficient evidence to find a prima facie case establishing the petitioner s culpability c. In 1980, Pennsylvania legislation enacted the Criminal History Record Information Act ( CHRIA ). i. CHRIA explicitly authorizes the Court to expunge eligible criminal history record information with specific exceptions. 10 i. Until the enactment of CHRIA there was no express legislative permission, nor explicit case law, authorizing the judicial branch to order the expungement of criminal history record information. ii. Instead, CHRIA allows a court, by judicial order, to mandate the expungement of non-conviction data. ii. The PA legislature did not include the petitioner s culpability as a factor for the expungement of non-conviction data. 11 Instead, the legislature focused on the disposition of the underlying charges rather than the grading of the offense or the time elapsed in determining the eligibility of what criminal history record information for expungement. 6 Id. at 69, 366 A.2d at Id. at 70, 366 A.2d at Mueller, 258 Pa. Super. 219, 392 A.2d 763 (1978). 9 Malone, 244 Pa. Super. at 69-70, 366 A.2d at (1976) (finding a substantial interest of an accused in his good name and in freedom from the disability flowing from an arrest record, we believe that the Commonwealth must come forward with compelling evidence to justify retention of such information ) Pa. Cons. Stat. 9122(b.1) Pa. Cons. Stat. 9122(a)(2). 3

5 d. In 1981, the Supreme Court of Pennsylvania weighed in on the expungement debate in the Commonwealth v. Wexler case. 12 i. In Wexler, a father, mother, and daughter sought expungement for charges related to the daughter selling marijuana from the family home. 13 i. The daughter agreed to enter into a consent decree that lasted about six months. a. The consent decree allowed an individual to be eligible for pretrial probation similar to the Accelerated Rehabilitative Disposition ( ARD ) program available to adults. 14 ii. The District Attorney chose not to prosecute and withdrew the charges against the parents at some later point. iii. The entire Wexler family filed for expungement shortly after the daughter completed the conditions of the consent decree. i. The expungements were denied and appealed ultimately to the Supreme Court where they were granted. e. Wexler settled expungement law in Pennsylvania in three important ways: i. First, Wexler adopted a balancing test with non-exhaustive factors to be considered before granting or denying an expungement. i. The purpose of the balancing test is to weigh the legitimate competing interests. Accordingly, the Court must 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. 15 ii. The Wexler balancing test does not shift the burden to the petitioner to prove a specific benefit of an expungement because the test balances the known harm associated with maintaining an arrest record. ii. Second, Wexler does not require the petitioner to prove non-culpability of a specific charge. i. Before Wexler and CHRIA, conflicting case law made it unclear if the Commonwealth maintains the burden to justify retention or if the burden could shift to the petitioner. ii. Wexler explicitly placed the burden on the Commonwealth to justify why the retention of the arrest record is necessary. a. If the Commonwealth does not bear its burden of proof beyond a reasonable doubt, or admits that it is unable to bear its burden of proof, the Commonwealth must bear the Commonwealth v. Wexler, 494 Pa. 325 (1981). 14 Id. at Id. at

6 burden of justifying why the arrest record should not be expunged. 16 iii. The Commonwealth must, therefore, present compelling evidence to justify a specific reason to retain the criminal history record information. In Wexler, the Commonwealth failed to advance any reason why the retention of the arrest information was necessary. a. By not proffering compelling evidence, the Commonwealth fails to meet its burden under Wexler and the Court should grant the expungement. iii. Lastly, Wexler rejected the argument that the public s general interest in an arrest record or the police interest in the petitioner s potential to commit future crimes outweighs the petitioner s right to be free from accusation. i. Specifically, the Commonwealth argued that because juvenile records are sealed, there is no prejudice to the petitioner and no reason for an expungement. a. Alternatively, the Commonwealth argued that should the daughter ever be charged with criminal activity in the future, the Commonwealth should have the right for the judge, or judges, whoever would consider the case, to be able to review what she s done throughout her whole life. 17 ii. The Supreme Court expressly rejected both of the Commonwealth s arguments because the mere assertion of a general interest in maintaining accurate records of those accused of crime does not outweigh... [a] specific, substantial interest in clearing... one s record. 18 a. Essentially an argument that is applicable to all people arrested is insufficient as a matter of law to justify retaining a specific arrest of a specific person. b. The individual right far outweighs any perceived benefit the public at large may receive by retaining the criminal history record information. i. Specific facts are needed to justify retaining the specific charges sought for expungement. 16 Id. at Id. at Id. citing (Commonwealth v Welford, 279 Pa. Super. 300, 303, 420 A.2d. 1344, 1345 (1980)). 5

7 c. Additionally, the Supreme Court found the Commonwealth cites no overriding interest in retaining [the] arrest record. 19 d. Thus, the Commonwealth failed to meet their very heavy burden by advancing argument without evidence or any overriding specific interest in maintaining an arrest record. f. Since 1976, the impact of criminal history record information has been exacerbated by technologies such as the Internet, which lowers many barriers to information sharing, and by historic events like 9/11 has increased a desire for the information sharing. g. Yet, public policy, legislation, and case law have supported an expansive approach to expungement law in an attempt to keep pace with information sharing. 19 Id. at

8 II. THE COLLATERAL CONSEQUENCES OF AN ARREST RECORD (NOT EXHAUSTIVE). I. Generally, collateral consequences are indirect civil penalties that spring from criminal convictions. 20 Because non-conviction data is publicly available for review in Pennsylvania, collateral consequences arise from conviction as well as non-conviction data. 21 See Hancock, Ryan, The Double Bind: Obstacles to Employment and Resources for Survivors of the Criminal Justice System, 15 U. PA. J.L. & SOC. CHANGE 515 (2012). a. Employment. 22 b. Housing (public 23 and private 24 ). c. Public benefits. 25 d. Occupational licensing. 26 e. Voting rights. 27 f. Immigration status. 28 g. Social stigma. 20 Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623, 634 (2006). 21 In Pennsylvania, there is a common law right for an individual to review court records. See Commonwealth v. Fenstermaker, 530 A.2d 414, (Pa. 1987) (noting the common law right to inspect public records, including judicial documents). Further. PA. CONST. art. V, 10(c) vests the Pennsylvania Supreme Court with the authority to prescribe rules governing the practice, procedure and conduct of all Pennsylvania courts, including those applicable to court records available through electronic databases. The public may access Pennsylvania s criminal record docket sheets by visiting 22 See, e.g., Older Adult Protective Services Act, 35 PA. CONS. STAT (2012) (limiting employment in caring for elderly adults based on conviction of certain offenses), unconstitutional as applied by Nixon v. Commonwealth, 329 A.2d 277 (2003). 23 See, e.g., Screening and Eviction for Drug Abuse and Other Criminal Activity, Notice H , Final Rule, 4 (Oct. 29, 2002), available at (explaining how local public housing authorities have wide discretion to admit or deny admission and to evict individuals because of their criminal or arrest records); Philadelphia Housing Authority (PHA) and Criminal Activity, COMMUNITY LEGAL SERVICES OF PHILADELPHIA, (last visited Mar. 1, 2012) (stating that the Philadelphia Housing Authority (PHA) has the right to deny admission to public housing due to their criminal record). 24 See, e.g., David Thacher, The Rise of Criminal Background Screening in Rental Housing, 33 LAW & SOC. INQUIRY 5, 6 (2008) (noting the rise in criminal background screening in private rental housing). 25 See, e.g., NAN FEYLER, COMMUNITY LEGAL SERVICES OF PHILADELPHIA, IMPACT OF CRIMINAL RECORD ON PUBLIC BENEFITS IN PENNSYLVANIA (2008), available at (describing when criminal record can have impact on eligibility for public benefits in Pennsylvania). 26 See, e.g., 18 PA. CONS. STAT (2012) (noting that occupational licenses can be denied based on criminal records). 27 See, e.g., AM. CIVIL LIBERTIES UNION, VOTING WITH A CRIMINAL RECORD: HOW REGISTRATION FORMS FRUSTRATE DEMOCRACY (2008), available at (discussing the riskiness of those with criminal records relying on voter registration forms for an explanation of their voting rights, and the impact of criminal records on voting rights more generally). 28 See, e.g., Juliet P. Stumpf, Doing Time: Crimmigration Law and the Perils of Haste, 58 UCLA L. REV (2011) (critiquing how criminal records are used in immigration and removal proceedings). 7

9 II. Criminal Consequences of an Arrest Record in Subsequent Prosecution (Not Exhaustive). a. Individual is more likely to be rearrested when stopped by law enforcement. b. Evidence of an arrest may be admissible in a subsequent trial as prior bad acts. 29 c. A prior arrest may be factored into the bail determination. 30 d. Sentencing: i. The pre-sentence investigation will state the number of prior arrests and the circumstances. 31 ii. The sentencing court may consider a defendant s prior arrests, as long as court recognizes that defendant was not convicted of the charges. 32 iii. If the defendant receives a state sentence (maximum of two years or more), a prior arrest might be evidence of a history of present or past violent behavior, which could exclude him from the recidivism risk reduction initiative ( RRRI ). 33 e. An arrest for certain offenses may result in involuntary HIV testing under the new, HIV-Related Testing for Sex Offenders Act Pa. R. Evid. 404(b); Ohlbaum on the Pennsylvania Rules of Evidence See, e.g., Pa. R. Crim. P. 523 ( [I]n domestic violence cases... the bail authority must also consider whether the defendant poses a threat of danger to the victim. ). 31 See e.g., Commonwealth v. Wilson, 946 A.2D 767 (Pa. Super. 2008) (reversing sentence as too lenient). 32 Commonwealth v. Brooks, 2013 Pa. Super. LEXIS 24 (Jan. 7, 2013) (citing Commonwealth v. Johnson, 481 A.2d 1212 (Pa. Super. 1984) Pa.C.S P.S , et seq. 8

10 III. KEY EXPUNGEMENT CASES IN CHRONOLOGICAL ORDER 1. Commonwealth v. Malone, 366 A.2d 584 (Pa. Superior Ct. 1976) a. Facts: Appellant was arrested and charged with solicitation to commit involuntary deviate sexual intercourse, but the charges were dismissed at the preliminary hearing. b. Procedural Posture: Appellant filed a petition to have the police record expunged. The lower court denied the petition on the ground that it did not have authority to grant the relief requested. c. Holding: The superior court remanded the case for an expungement hearing. The court held that the right to an expungement is adjunct to due process. 35 d. Reasoning: The court reasoned that given the substantial interest of an accused in his freedom from the disability flowing from an arrest record, the commonwealth was required to present compelling evidence to justify retention of the appellant s record. 36 i. The court invoked memories of when the criminal justice system suppressed political and social dissent by citing police practices where the invocation of the criminal process is used- often with no hope of conviction as a punitive sanction. 37 ii. Based on this logic the court recognized known legislative harms and unknown social harms that attach to someone the moment their arrest record is shared. 1. These harms impact those with non-conviction data as well as those with conviction data. 2. The court recognized the right of the petitioner to be free from these harms. 2. Wert v. Jennings, 378 A.2d 390 (Pa. Superior Ct. 1977) a. Facts: Appellant was charged with perjury and conspiracy, but the state did not prosecute him after a co-defendant was acquitted. Appellant sought an expungement of his arrest record in the trial court. b. Procedural Posture: The trial court denied the appellant s request on the ground that it lacked authority to expungement his record. An appeal followed. The court reversed the trial court s judgment and ordered a hearing. 35 Id. at 244 Pa. Super. 62, Id. at 244 Pa.Super. 62, Id. at 244 Pa.Super. 62, 70. 9

11 c. Holding: The court held that the right to seek an expungement of an arrest record was substantial and that despite a lack of statutory authority, the trial court did have the power to hold a hearing on the matter. d. Reasoning: The court noted that the injury to an individual s reputation from such a record as the appellant carried could have punished an innocent individual, and therefore could have violated due process. 3. Commonwealth v. Mueller, 392 A.2d 763 (Pa. Superior Ct. 1978) a. Facts: Defendant was charged with theft by unlawful taking, but because the commonwealth failed to try the case within 180 as required by state statute, the charges were dismissed. Defendant filed a petition to expunge his criminal record, and it was granted. The Commonwealth appealed. b. Procedural Posture: On appeal, the court vacated the order and remanded because the case was terminated on procedural issues, not on guilt or innocence, and defendant was required to prove non-culpability at a hearing. 38 c. Holding: The order granting defendant s petition to expunge his record was vacated and the case was remanded. d. Reasoning: An expungement in this case was not required to protect an innocent person from punishment since the charges were dismissed for the Commonwealth s procedural failure, not defendant s innocence. 4. Commonwealth v. Iacino, 411 A.2d 754 (Pa. Superior Ct. 1979) a. Facts: Appellee was arrested after a significant amount of drug contraband was found in her apartment. The drug evidence was suppressed because the execution of the arrest/search warrant was improper. b. Procedural Posture: The trial court ordered appellee s criminal records to be expunged. The Commonwealth argued against the expungement by reasoning that expunging this case would require similar cases to have to be expunged. 39 The appellant testified to the denial of her real estate license as a harm ancillary to the arrest record. c. Holding: The court affirmed the order directing the expungement of appellee s criminal records. d. Reasoning: The right of an accused to petition for expungement as an adjunct to due process, not dependant upon express statutory authority. e. Judge Spaeth outlined several factors for the court to consider when determining an expungement, which later become adopted as the standard guidelines for an expungement hearing. Including: 38 Commonwealth v. Mueller, 258 Pa.Super. 219, Commonwealth v. Iacino, 270 Pa.Super. 350,

12 i. [T]he strength of the Commonwealth s case against the petitioner; the reasons the Commonwealth gives for wishing to retain the records; the individual s age, criminal record, and employment history; the length of time that has elapsed between the arrest and the petition to expunge; and the specific adverse consequences the petitioner may endure should the expungement be denied Criminal History Record Information Act (1980) a. Title 18 of the Pennsylvania Consolidated Statutes, Chapter 91, Criminal History Record Information Act (CHRIA) Commonwealth v. Briley, 420 A.2d 582 (Pa. Superior Ct. 1980) a. Facts: Appellant was arrested and charged with aggravated assault on a police officer, resisting arrest, and disorderly conduct. Before trial the appellant was admitted into the Accelerated Rehabilitative Disposition Program (ARD). Upon completion of the conditions in the program, appellant sought expungement of his arrest record. The petition was denied after the court agreed with the Commonwealth s position that retention of the record could be helpful to make future determinations about whether a person was eligible for ARD. He appealed. b. Procedural Posture: The court reversed the denial order and remanded with orders to expunge the arrest record. c. Holding: The court ordered the arrest record to be expunged. d. Reasoning: Because the appellant had not been in further criminal activity for five years, the trial court abused its discretion in not ordering expungement. Further, [i]t might be said in almost every case that the Commonwealth has some interest in preserving for the purpose of criminal investigation the records of those who have been arrested on the assumption that such persons bear watching as persons who may commit future offenses. 42 i. In reaching its decision, the court conducting a balancing test using the factors outlined in Iacino. 43 ii. The court emphasized the age of the appellant in addition to the associated harms with an arrest record as support to grant the expungement. 1. Additionally the court noted, [h]is arrest was in conjunction with a street corner celebration of a sports victory, where spirits naturally ran high, and some degree of tension between the police and those celebrating was inevitable Id. at 270 Pa.Super. 350, 359 (concurring opinion by Spaeth J., joined by Cercone, P.J.) Pa. Cons. Stat Commonwealth v. Briley, 278 Pa.Super. 363, Id. at 278 Pa.Super. 363, 367 (1980)( citing Iacino, supra.) 44 Id. at 278 Pa.Super. 363,

13 iii. The court also stated, 50 percent of American males will acquire a nontraffic arrest record at some point in their lives, and the probability for a black urban male may be as high as 90 percent The court referenced this statistic to support the notion that young people make mistakes, some of which can lead to arrest, however, that arrest record should not always be kept. 7. Commonwealth v. Welford, 420 A.2d 1344 (Pa. Super. Ct. 1980) a. Facts: Defendant was arrested and charged with driving under the influence of alcohol, under-age drinking, and failure to stop at the scene of the accident. Defendant was accepted to and completed the Accelerated Rehabilitative Disposition Program (ARD), and was granted an expungement of his criminal record. b. Procedural Posture: The Commonwealth appealed the expungement order. The court affirmed, relying on a balancing process that weight the individual s due process interest in being free from the stigma of an arrest record against the state s interest in maintaining accurate records relating to persons suspected of criminal activity. The Commonwealth cited no overriding interest in retaining the defendant s criminal record. i. Commonwealth s burden of proof is not met when the mere assertion of a general interest in maintaining accurate records regarding those accused of crime does not outweigh appellee s specific, substantial interest in clearing his record to facilitate job placement. 46 c. Holding: The trial court s order granting the expungement was affirmed. d. Reasoning: The defendant completed the ARD program, graduated college with a business degree, and a criminal record would have hampered his future job opportunities. 8. Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981) a. Facts: Appellant parents were arrested for corruption of a minor and criminal conspiracy and appellant minor was arrested for drug possession and criminal conspiracy. Appellants filed petitions to expunge their arrest records. b. Procedural Posture: The lower court denied the petitions, holding that the retention of appellants arrest records was necessary. The Court reversed the lower court s judgment. i. The lower court s argument was essentially that records will be needed for the prosecution of future crimes. 45 Id. at 363 Pa.Super. 363, 371 (citing Coffee, the Future of Sentencing Reform: Emerging Legal Issues in the Individualization of Justice, 73 Mich.L.Rev. 1362, (1975)). 46 Id. 12

14 c. Holding: Reversed. d. Reasoning: The court must balance the individual s rights to be free from the harm attendant to maintenance of the arrest record against the Commonwealth s interest in preserving such records. 47 i. The Supreme Court in Wexler adopted a balancing test of the nonexhaustive factors listed in Iacino for judges to consider before granting or denying an expungement. 1. The factors are: a. The strength of the Commonwealth s case against the petitioner b. The reason the Commonwealth gives for retaining the record c. The Petitioner s age, employment history, and criminal history d. The length of time since the date of arrest and the petition to expunge, and e. The specific adverse consequences the petitioner may face should the expungement be denied. ii. The Supreme Court rejected outright an argument that is not specific to the petitioner or the case the petitioner is seeking to expunge because the mere assertion of a general interest in maintaining accurate records of those accused of crime does not outweigh... [a] specific, substantial interest in clearing... one s record Rambo v. Commissioner of Police, 447 A.2d 279 (Pa. Super. Ct. 1982) a. Facts: Appellant was convicted of possession with intent to deliver a controlled substance. The PA Supreme Court reversed the conviction, holding that the evidence was insufficient to establish guilt beyond a reasonable doubt. Appellant requested that the trial court expunge his arrest record, but his motion was denied. b. Procedural Posture: Appellant requested that the trial court expunge his arrest record, but his motion was denied. Appellant appealed. c. Holding: The court reversed, holding that in expungement cases in which the prosecution was terminated because of the innocence of the accused, the state had the burden of showing a compelling reason why an arrest record should be retained. d. Reasoning: The highest court in the state deemed the accused innocent. The court also applied a balancing test, weighing the interest of appellant in having the record expunged and appellee s interest in retaining the arrest record. 47 Id. at Id. citing (Commonwealth v Welford, 279 Pa. Super. 300, 303, 420 A.2d. 1344, 1345 (1980)). 13

15 i. The court granted the expungement based on the factors outlined in Iacino, with specific reference to the fact that the appellant s current employer did not inquire about his criminal history, and his fear that he will lose his employment if the employer does inquire Commonwealth v. Chacker, 467 A.2d 386 (Pa. Super. Ct. 1983) a. Facts: After defendant was charged with criminal conspiracy, his motion to suppress evidence of marijuana was granted. As a result, the state was precluded from proceeding to trial. Defendant filed a petition to expunge his arrest record. b. Procedural Posture: The trial court denied his petition because probable cause for the arrest was found at the preliminary hearing. Defendant appealed. c. Holding: The court reversed, and the defendant s arrest record was expunged. d. Reasoning: The state had the burden of justifying why the arrest record should not be expunged after the charges were withdrawn. The mere concern for maintaining accurate records of individuals who were engaged in illicit drug activity was not a compelling enough reason to deny an expungement. i. The court conducted a balance test in accordance with Wexler, balancing the Commonwealth s stated interest in maintaining accurate records of arrests against the petitioner s right to be free from the harms derived from the existence of an arrest record. ii. The court granted the expungement considering the efficacy of a prima facie determination at a preliminary hearing and its impact upon the expungement court s decision has been neutralized. 50 e. Chacker reinforces the Supreme Court s Wexler decision to end the burden shifting discussion in expungement hearing. 11. Commonwealth v. McKee, 516 A.2d 6 (Pa. Super. Ct. 1986) a. Facts: Two juries acquitted the appellee of rape and related offenses. Appellee filed a petition for expungement of his records. b. Procedural Posture: The trial court granted the petition. The Superior Court reversed. c. Holding: The trial court failed to afford the appropriate significance to the law enforcement justification for retaining appellee s arrest records. d. Reasoning: The Commonwealth s interest, retaining the record that showed distinctive and recognizable crime habits, outweighed the potential harm of the appellee carrying his arrest record. i. The Commonwealth presented expert testimony, based on scientific facts of this case, which showed that the two alleged instances showed that 49 Id. at 135 Pa.Super. 135, Id. at 320 Pa.Super. 402,

16 appellee followed a particular modus operandi or identifiable pattern of behavior. 51 ii. The Commonwealth even had a expert on sex offense classifications to speak to how the underlying facts of each case help law enforcement classify the Appellee as a Predatory rapist or anger rapist. 52 iii. Applying the balance test set forth in Wexler, the court found the Commonwealth s reasons outweighed the petitioner s right to be free from the harms ancillary to an arrest record. 12. Commonwealth v. Drummond, 694 A.2d 1111 (Pa. Super. 1997) a. Facts: Defendant was charged with aggravated assault, simple assault, and recklessly endangering another person. The charges were later dismissed because the key witness refused to testify. Defendant filed to expunge his criminal record. b. Procedural Posture: The trial court denied the petition, stating that the defendant could re-petition at a later time. Defendant appealed. c. Holding: The court affirmed, concluding that the trial court did not err in determining that the balancing test, set forth in Wexler, weighed in favor of temporarily maintaining the arrest record. d. Reasoning: Defendant s record should at minimum be maintained during the twoyear statutory period to allow the Commonwealth to refile the charges should the key witness decide to testify against the defendant. i. The Court denied the petition for expungement in part because the trial court had to consider that appellant's petition for expungement was filed less than one year following dismissal of the charges and just over one year after the arrest. When compared to the grave nature of the crimes with which appellant was charged, this time period is hardly significant. This interval is all the more important, however, when one considers that the statute of limitations for the instant offenses was two years and that expungement would effectively erase the arrest from the official records Commonwealth v. D.M., 695 A.2d 770 (Pa. 1997) a. Facts: Petitioner was acquitted of indecent assault and corrupting a minor in a municipal court bench trial. He petitioned the court to expunge his record. b. Procedural Posture: The court granted the petition, and the state supreme court affirmed after the Commonwealth appealed. 51 Commonwealth v. McKee, 357 Pa.Super. 332, Id. at 357 Pa.Super. 332, Id. At Further it is important to note that the Pa. Superior Court in a recent non-precedential opinion cited Drummond when denying a petition for expungement under similar facts. See Commonwealth v. Brown, No EDA 2012 (Pa. Super. Ct. 2014). 15

17 i. The Commonwealth argued under parens patriae (the state acting like the parent of a child) that the Commonwealth had a duty to maintain arrest record to prevent the appellant from accepting a future position with access to young women. c. Holding: The grant of the expungement was affirmed. d. Reasoning: In cases of acquittal, a petitioner is automatically entitled to expungement of his arrest record. i. [W]here non-culpability has been established by jury or judicial acquittal, the Wexler balancing test is simply the petitioner s presumptive right to be free of the taint of the embryo of criminality which an arrest record proclaims as weighed against the state s interest in preserving such records Therefore, the appellant has an entitlement to the expungement when the appellant is acquitted of that charge. The court recognizes the need for legislation related to criminal records be modified in recognition of the computer age. 55 e. It is important to note that D.M. may have overturned (or at least weakened the precedential value) Commonwealth v. Dobson, 684 A.2d 1073 (Pa. Super. 1996). 14. Commonwealth v. Maxwell, 737 A.2d 1243 (Pa. Super. Ct. 1999) a. Facts: Defendant pled guilty to simple assault and indecent exposure then filed a petition to expunge his record of the other charges that were withdrawn. b. Procedural Posture: The trial court denied the petition, concluding that defendant was not entitled to expungement on those charges because he was convicted of related charges concerning the same incident. The reviewing court found that this conclusion was incorrect, and the trial court was without the authority to grant or deny defendant s request in that situation. c. Holding: The court reversed the trial court s denial of defendant s petition to expungement his record. d. Reasoning: Similar to the D.M. case, the court reasoned that a petitioner seeking expungement in a case which resulted in an acquittal was automatically entitled to expungement of his arrest. i. The court extends D.M. standard that the Wexler balancing test is appropriate for any charge which is disposed of by completion of ARD or nolle prossed. 54 Commonwealth v. D.M., 444 Pa.Super. 299, Id. at 444 Pa.Super. 299, 305 ( Expungement in the computer age, is a daunting undertaking since the fact of an arrest may find its way into a variety of investigatory, regulatory, and prosecutory data resources. ). 16

18 15. Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. Ct. 2001) a. Facts: Defendant was charged with attempted homicide, aggravated assault, simple assault, reckless endangerment and possession of an instrument of crime. Defendant pled guilty, and was sentenced through a plea agreement. Defendant filed a motion for expungement. b. Procedural Posture: The lower court denied the motion, and defendant appealed. c. Holding: The court affirmed the denial of the motion for expungement. d. Reasoning: Destroying the defendant s records would obscure the true circumstances under which defendant had been convicted. i. In denying the expungement relief, the court noted the contractual nature of plea agreements with withdrawn charges. ii. This contractual nature of pleas with dismissed charges categorically unfit for expungement because the expungement of the dismissed charges would obliterate or seal any record of those charges and thus leave no accurate record of the contractual relationship entered into by [Appellant] and the Commonwealth Commonwealth v. Roland, 871 A.2d 216 (Pa. Super. Ct. 2005) a. Facts: Defendant was charged with arson and other offenses. He was convicted of some and acquitted of others. Appellant sought expungement for charges where some were plead nolo contendere, some nolle prossed, some dismissed, and others the appellant was acquitted. b. Procedural Posture: The trial court denied the motion. c. Holding: The trial court s order denying defendant s motions were vacated. d. Reasoning: The court held that the Commonwealth may avoid expungement in cases of partial acquittal only when it demonstrates to the trial court that expungement is impractical or impossible under the circumstances. i. This holding is in accordance with D.M. and Maxwell, where the court held that a petitioner may have an expungement for charges that do not lead to a conviction even if other charges from the same incident are convictions. ii. The court noted [r]arely, if ever, will charges dismissed for lack of evidence fail to qualify for expungement under Wexler Commonwealth v. Armstrong, 434 A.2d 1205 (Pa. 2005) a. Facts: Appellant was charged with attempted theft. The Commonwealth withdrew the charge when she completed the ARD program. Appellant filed a 56 Commonwealth v. Lutz, 788 A.2d 993, 1000 (Pa. Superior Ct. 2001). 57 Id. At

19 petition for expungement because it was having an effect on employment opportunities. i. Applying the Wexler balancing test, the court noted that, the arrest is having a deleterious effect right now he has been unable to obtain work as a school librarian or even secure an interview for the same since the arrest. 58 b. Procedural Posture: The lower court denied the petition and the appeals court affirmed. c. Holding: The Supreme Court of the State reversed. d. Reasoning: Appellant was entitled to the expungement because the Commonwealth failed to indicate good reasons as to why the arrest record had to be retained. i. The Commonwealth put forth two reasons to retain the record and satisfy its burden under Wexler. 1. The first argument the Commonwealth presented was that statutory authority protects its dissemination and the charges will be eligible for expungement after three years. a. This argument was rejected because despite most employers being barred from accessing the information, schools are specifically permitted to access the information in question. 2. The second argument was that the information is needed to protect against future crimes, an argument which failed in the instant matter as it did in Wexler. a. In response to this argument the court provides, the Supreme Court in Wexler expressly rejected the [future crimes] argument that a general interest in maintaining an arrest record overrides the individual s interest in expungement Commonwealth v. Hanna, 964 A.2d 923 (Pa. Super. Ct. 2009) a. Facts: The defendant was charged with multiple offenses relating to encouraging a juvenile to steal laptop computers. Defendant pled guilty to one count of receiving stolen property. The remaining charges were withdrawn. Defendant petitioned for expungement. b. Procedural Posture: The trial court denied the petition after a hearing. The appellate court found that further proceedings were required. 58 Id. 59 Commonwealth v. A.M.R., 434 A.2d 1205 (Pa. Superior Ct. 2005). 18

20 i. The Commonwealth asserted that Lutz applied, therefore, no hearing was necessary and the expungement should be denied. ii. The court disagreed stating Lutz is arguably inconsistent with broad language from this Court and our Supreme Court, as well as the prevailing trend of our case law. 60 iii. Judge Klien provides, I believe that since Lutz is inconsistent with many other cases, we cannot say it is good law but have to pick between Lutz and several other cases. 61 c. Holding: The appellate court vacated the judgment and remanded the case for an evidentiary hearing. d. Reasoning: the Commonwealth bears the burden of proving on remand with clear and convincing evidence that Lutz applies, 62 otherwise a hearing applying the Wexler balance test is appropriate. 19. Commonwealth v. Moto, 23 A.3d 989 (Pa. 2011) a. Facts: Defendant was convicted of multiple rape offenses. A DNA test in a post conviction proceeding ruled him out, so the convictions were vacated. The defendant requested expungement. b. Procedural Posture: The trial court denied the request, after conducting a Wexler balancing test, finding that the Commonwealth had justified retaining the records. Defendant appealed. The superior court reversed, holding that the Commonwealth had not met its burden. c. Holding: the State Supreme Court reversed. i. In applying the Wexler balancing test the Court held that the strength of the Commonwealth s original case was not rendered infirm by the newly discovered DNA evidence. ii. The Court notes [i]t would have been for the jury to decide whether the failure to detect Appellee s DNA was more compelling than the victim s testimony 63 d. Reasoning: The court with the trial court that the Commonwealth had a strong case to retain the records. i. The Supreme Court reminds us that, judicial analysis and evaluation of a petition to expunge depend upon the manner of disposition of the charges against the petitioner Commonwealth v. Hanna, 964 A.2d 923 (Pa. Superior Ct. 2009). 61 Id., at 964 A.2d 923 (concurring opinion by Klien J.). 62 Commonwealth v. Hanna, 964 A.2d 923 (Pa. Superior Ct. 2009). 63 Id. at Commonwealth v. Moto, 23 A.2d 989 (Pa. 2011). 19

21 20. Commonwealth v. Joiner, 68 A.3d 341 (Pa. Super. Ct. 2013) a. Facts: Appellant was charged with multiple sex offenses. He entered guilty please to various offenses in exchange for the Commonwealth withdrawing the remainder of the charges. Appellant filed a motion to expunge the withdrawn charges from his record. b. Procedural Posture: The trial court dismissed the motion. The matter was remanded to hold a Wexler balancing test hearing. The trial court ordered the charges expunged without a hearing. On appeal again, the superior court affirmed the trial court s order. c. Holding: Affirmed, to dismiss the charges. d. Reasoning: The court noted that if a Wexler hearing were held, the appellant might not have received a favorable outcome because of the factors that would have been evaluated. 21. Commonwealth v. Trimble, 75 A.3d 518 (Pa Super. Ct. 2013) a. Facts: Appellant was charged with rape, simple assault, and terroristic threats. All charges were dismissed after appellant entered a guilty plea for kidnapping. Appellant filed a motion to expunge the dismissed charges. b. Procedural Posture: Trial court denied the motion. An appeal followed. c. Holding: The order was reversed. d. Reasoning: The trial court abused its discretion when balancing Appellant s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth s interest in preserving the records. 65 The Commonwealth s interest in retaining did not supersede the Appellant s in expunging. 22. Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014) a. Facts: While appellee was incarcerated in federal prison he applied for expungement for past charges that had not resulted in convictions. Appellee s criminal record spanned 14 pages with a total of 228 charges. 66 b. Procedural Posture: The trial court denied the request, using the Wexler balancing test, and determined that because the appellee was currently incarcerated, if he commits an offense while in prison or violates subsequent parole, his records would be relevant in assessing appropriate punishment. 67 The purpose of expungement, to protect against the negative stigma associated with an arrest record, would not be served here because the appellee had a long list of convictions. c. Holding: State Supreme Court affirmed. 65 Trimble, 75 A.3d at See Wallace at 368 for the crimes. 67 Wallace, 97 A.3d at

22 d. Reasoning: An inmate does not have the right to petition for expungement while incarcerated, even though some of the charges the petitioner sought to expunge in Wallace included charges that resulted in acquittal or not guilty. 23. Commonwealth v. Wholaver, LEXIS 3723, No. 784 MDA 2013 (Pa. Super. Ct. 2014) a. Facts: Appellant was charged with murder in the first degree, and a multitude of other offenses including sexual abuse charges. Appellant filed an expungement petition for the sexual crimes that he was found not guilty on (since he murdered the only witnesses). b. Procedural Posture: The trial court denied the petition. An appeal followed. c. Holding: The trial court committed no abuse of discretion in denying the petition. He was only found not guilty on some of the charges because of his actions included in the other charges. 68 d. Reasoning: The expungement was impractical or impossible under the circumstances. 24. Commonwealth v. Park, 134 A.3d 110 (Pa. Super. Ct. 2015) a. Facts: Defendant was charged with first-degree misdemeanor of endangering a child, and leaving an unattended child in a car. She entered a guilty plea, and then filed for expungement. b. Procedural Posture: At her expungement hearing, and the trial court judge denied the petition. She appealed. c. Holding: The Superior Court affirmed the denial. d. Reasoning: The court agreed with the trial court s approach in weighing the Wexler factors and determination that the Commonwealth had a prevailing interest in retaining the record. 25. Commonwealth v. Heffner, LEXIS 793, No. 958 MDA 2014 (Pa. Super. Ct. 2015). a. Facts: Defendant was charged with two counts of felony retail theft, and one count each of receiving stolen property, false ID to law enforcement, and falsification to authorities. The court dismissed the charges after finding the defendant incompetent, and that her condition would not improve in the future. 69 She filed for expungement. b. Procedural Posture: The trial court judge denied the petition. She appealed. c. Holding: The Superior Court affirmed the denial. d. Reasoning: The court agreed with the trial court s approach in weighing the Wexler factors. Also, the only reason the charges were dismissed was because the 68 Wholaver, at Heffner, at 3. 21

23 defendant sought the incompetency determination, and absent that request, she faced overwhelming evidence of guilt and a conviction. 26. Commonwealth v. Guilian, 111 A.3d 201 (Pa. Super. Ct. 2015) a. Facts: In 1997, Appellant pled guilty to underage drinking, harassment, and public drunkenness. One year later, in 1998, appellant pled guilty to criminal mischief in a separate matter. Appellant filed petitions to expunge all the offenses. b. Procedural Posture: The trial court granted the petition to expunge the 1998 offense, but denied the 1997 request because Appellant had not been free from arrest or prosecution following the 1997 conviction as required by PA statute. 70 An appeal followed. c. Holding: The Superior Court affirmed. d. Reasoning: The court agreed with the trial court s interpretation that Appellant was required to remain free of arrest or prosecution for the five years immediately following her conviction for the 1997 offense Commonwealth v. Kaler, 131 A.3d 95 (Pa. Super. Ct. 2015) a. Facts: Appellant was charged with criminal trespass, criminal mischief, and defiant trespass. He entered a guilty plea for criminal mischief on the agreement that the other two charges would be dismissed. He filed for expungement of the criminal trespass and criminal mischief charges. b. Procedural Posture: The trial court denied the petition, because the charges were dismissed based on an agreement, not withdrawn. c. Holding: Affirmed. d. Reasoning: Generally, when a defendant s charges are flat out dismissed, not withdrawn, the defendant is not entitled to expungement on those charges Commonwealth v. Muhammad, LEXIS 763, No. 321 EDA 2015 (Pa. Super. Ct. 2016) a. Facts: Appellant was charged with a DUI. The charges were later dismissed for lack of prosecution. Appellant filed for a motion to expunge, arguing that his arrest record was preventing him from moving from a part-time to full-time position at his work place. b. Procedural Posture: The trial court denied the motion, noting that the statute of limitations for the DUI had not run yet. An appeal followed, on the grounds that the trial court abused its discretion. c. Holding: There was no abuse of discretion; affirmed Pa.C.S. 9122(b)(3)(i). 71 Guilian, 111 A.3d at Kaler, 131 A.3d at 9. 22

24 d. Reasoning: Expungement is only proper in cases where an acquittal is consistent with a finding of real innocence, and not a result of legal technicalities. 73 The Commonwealth had a strong interest in maintaining the record in the event it decided to refile if the relevant witnesses became available Commonwealth v. Haley, LEXIS 1646, No. 972 EDA 2015 (Pa. Super. Ct. 2016) a. Facts: In 1985 Appellant pled guilty to robbery, and the remaining charges were withdrawn. In 2005, he was found guilty of attempted murder, aggravated assault, recklessly endangering another person, terroristic threats, theft, and unlawful use of a motor vehicle. In 2014 Appellant filed an expungement petition. b. Procedural Posture: The trial court granted the petition for the 1985 withdrawn charges, expect for unlawful possession of a firearm, after balancing the fairness to Appellant and the need for the Commonwealth to preserve records. 75 An appeal followed. c. Holding: The order is affirmed. d. Reasoning: Appellant failed to present a convincing argument to expunge. The Wexler balancing test is not controlling, given Appellant s current incarceration and the State Supreme Court s holding in Wallace Muhammad, at 3; citing to Commonwealth v. Butler, 672 A.2d 806, 809 (Pa. Super. Ct Muhammad, at Haley, at Id. at 6. 23