Superior Court affirms trial court expungement order regarding rape arrest
2009 PA Super 156
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
Appellant : No. 1101 EDA 2008
Appeal from the Order Entered March 5, 2008
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.:
BEFORE: BENDER, SHOGAN, JJ. and McEWEN, P.J.E.
OPINION BY BENDER, J.: Filed: August 10, 2009
¶ 1 V.A.M. (Appellant) appeals from the order denying his petition for
expungement of his arrest and conviction record after he was granted a new
trial on charges of rape, involuntary deviate sexual intercourse, robbery, and
criminal conspiracy and the re-trial did not take place because the
Commonwealth nolle prossed all charges, having failed to locate the
complaining victim. We reverse and remand.
¶ 2 The trial court set forth the factual and procedural history of this case
In 1986, Appellant, [V.A.M.], was arrested and
subsequently charged with Rape, Involuntary Deviate Sexual
Intercourse, Robbery, and Criminal Conspiracy. He was later
convicted of these crimes in 1987 and sentenced to 12 to 24
years in prison. [V.A.M.] served more than ten tears in prison
for these crimes until his convictions were vacated in 1996 by
the Honorable Joseph Papalini because there was new evidence
presented that DNA of three men was found on the victim’s
clothing, but none of the DNA samples matched [V.A.M.’s] DNA.
Once the convictions were vacated, a new trial was ordered by
Judge Papalini so this new evidence could be considered. The
Commonwealth thereafter nolle prossed all charges against
[V.A.M.] filed a Petition for Expungement of his criminal
record for these arrests and convictions and a hearing was held
before this Court on March 5, 2008, where the Court denied
[V.A.M.’s] Petition. [V.A.M.] filed this timely appeal of the
Court’s decision on April 2, 2008.
On April 7, 2008, this Court ordered [V.A.M.] pursuant to
Pa.R.A.P. 1925(b) to file with the Court a Concise Statement of
Matters Complained of on Appeal. [V.A.M.] filed his [Rule]
1925(b) Statement with the Court on April 28, 2008.
At [V.A.M.’s] hearing on March 5, 2008, Bill Fisher, the
Assistant District Attorney in Philadelphia, who tried [V.A.M.’s]
original case back in 1987, testified to the evidence that was
presented at [V.A.M.’s] trial that led to his conviction by a jury.
This evidence included the victim making a clear identification of
[V.A.M.]; a composite sketch of [V.A.M.] drawn a few days after
the victim was raped that matched a photograph of [V.A.M.];
and the testimony of the unwavering victim. (N.T., 3/5/08, pgs.
29-36). When asked whether the DNA results, showing none of
[V.A.M.’s] DNA on the victim’s underpants, had changed his
opinion on the case, he stated that “In terms of excluding the
defendant as the perpetrator of the crime, yes, I believe there is
something wrong with the DNA. I don’t believe you can exclude
this Defendant based on that DNA.” (N.T., 3/5/08, pg. 48). The
reasons Mr. Fisher gave for this belief were that the victim
testified that only two men had raped her and there was the
semen of three men found on her underpants and that DNA can
last a very long time on garments and the semen found did not
have to be from that particular incident. (N.T., 3/5/08, pg. 42).
Charlie Ehrlich, Assistant District Attorney, who was chief
of the Family Violence and Sexual Assaults Unit in 1996, when
the case against [V.A.M.] was nolle prossed, testified at the
hearing in regard to why the case was nolle prossed. He
testified that the reason the case was nolle prossed was because
the District Attorney’s Office could not find the victim, and if they
had, they would have prosecuted the case. (N.T., 3/5/08, pg.
56). He was also asked if the DNA results affected his opinion of
the case, and stated that “he does not feel that the results
exclude [V.A.M.] as being the perpetrator in this case.” (N.T.,
3/5/08, pg. 57). His reasons for this include: the fact that there
are stains on the victim[‘s] underpants from other people
besides [V.A.M.] does not exclude him as DNA or biological
stains can stay on panties for many years; the fact that a
defendant does not have to ejaculate during a rape; and the fact
that an adult female can be having sex with other partners
where biological stains can stay on the panties even after they
are washed. (N.T., 3/5/08, pgs. 57-58).
Trial Court Opinion (T.C.O.), 7/1/08, at 1-3.
¶ 3 As indicated by the trial court, Appellant appealed to this Court from
the order denying his petition for expungement. In this appeal, Appellant
raises the following issues for our review:
1. Did the Trial Court err as a matter of law in holding that it
lacked the authority to expunge all records relating to
[V.A.M.’s] arrest, subsequent trial and resulting prison term
even though the Commonwealth chose to nolle pros all
charges after [V.A.M.’s] convictions were vacated and he
was granted a new trial based on after-acquired evidence?
2. Did the Trial Court err as a matter of law by first denying
[V.A.M.’s] Petition to Expunge without relying on any of the
factors set forth in Commonwealth v. Wexler, 431 A.2d 877
(Pa. 1981)[,] and then by improperly applying Wexler in its
1925(b) Opinion by: (i) wrongly shifting the burden to the
Petitioner; (ii) finding that the Commonwealth’s case was
strong despite exculpatory DNA evidence that it could not
explain beyond theoretical possibilities and based solely on
the testimony from two prosecutors who, unremarkably,
testified that they subjectively believed their case was strong
but failed to introduce any actual evidence to support their
contention; and (iii) wholly ignoring every other Wexler
factor, each of which strongly supports expungement?
3. Did the Trial Court err as a matter of law by denying
[V.A.M.’s] Petition to Expunge because the Commonwealth
has a general interest in maintaining arrest records for
crimes as serious as rape?
Appellant’s brief at 2 (footnote omitted).
¶ 4 We note as does the trial court that no Pennsylvania case law exists
that deals “directly with an expungement petition to expunge charges that
were nolle prossed after a new trial was granted on the basis of post trial
DNA evidence.” T.C.O. at 4. Since none of the expungement cases that
have been decided in this Commonwealth concern a factual scenario like the
one presently presented to this Court, we begin by quoting a review of
expungement law that was most recently set forth in Commonwealth v.
Hanna, 964 A.2d 923 (Pa. Super. 2009). The Hanna opinion explained:
“The decision to grant or deny a request for expungement of an
arrest record lies in the sound discretion of the trial judge, who
must balance the competing interests of the petitioner and the
Commonwealth. We review the decision of the trial court for an
abuse of discretion.” Commonwealth v. Rodland, 871 A.2d
216, 218 (Pa. Super. 2005) (citation omitted). This Court
explained the nature of the right to expungement as follows:
In this Commonwealth, there exists the right to
petition for expungement of a criminal arrest record.
This right is an adjunct of due process and is not
dependent upon express statutory authority. In
Commonwealth v. Wexler, [494 Pa. 325, 431 A.2d
877, 879 (Pa. 1981)], the seminal case on
expungement hearings in the Commonwealth, our
Supreme Court defined the responsibilities of a court
as it decides whether to expunge an arrest record:
“In determining whether justice requires
expungement, the court, in each particular case, 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.” Our Court has long recognized that the
Commonwealth’s retention of an arrest record, in and
of itself, may cause serious harm to an individual.
See Commonwealth v. Malone, [244 Pa. Super.
62,] 366 A.2d 584, 588 (Pa. Super. 1976) (noting
possible effects of maintaining an arrest record,
including economic and non-economic losses and
injury to reputation).
Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super.
2005) (footnote omitted).
If the defendant is convicted of a crime, he is not entitled
to expungement except under the extremely limited
circumstances permitted by statute. Commonwealth v.
Maxwell, 737 A.2d 1243, 1244 (Pa. Super. 1999), citing 18
Pa.C.S.A. § 9122. At the opposite extreme, if the defendant
is acquitted, he is generally entitled to automatic expungement
of the charges for which he was acquitted. Commonwealth v.
D.M., 548 Pa. 131, 695 A.2d 770 (Pa. 1997); cf. Rodland, 871
A.2d at 219 (where the defendant is acquitted of some charges
and not others, the court should expunge the acquitted charges
unless the Commonwealth “demonstrates to the trial court that
expungement is impractical or impossible under the
1 The Maxwell court explained:
In matters which have resulted in a conviction, 18 Pa.C.S.A. §
9122(b)(1) directs that expungement may occur only where the
“subject of the information reaches 70 years of age and has
been free of arrest or prosecution for ten years” or where that
individual “has been dead for three years.” However, where a
suspect was charged but not convicted and the court is
presented with a petition to expunge, the Commonwealth bears
the burden of justifying retention of the arrest record.
Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981).
Maxwell, 737 A.2d at 1244.
Hanna, 964 A.2d at 925.
¶ 5 As noted in Hanna, the Wexler decision by our Supreme Court is the
seminal case on expungement hearings. Also, in Commonwealth v.
Rodland, 871 A.2d 216 (Pa. Super. 2005), this Court discussed a situation
where the charges were nolle prossed and the matter terminated without
any conviction, indicating that the trial court was to analyze the case
according to the factors espoused in Wexler. These factors include the
following but are not to be considered an exclusive list:
 the strength of the Commonwealth’s case against the
petitioner,  the reasons the Commonwealth gives for wishing
to retain the records,  the petitioner’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
expunction be denied.
Wexler, 431 A.2d at 879. We are also guided by the decision in
Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005),
wherein the court stated that “where the Commonwealth has dropped the
charges against a petitioner or otherwise has failed to carry its burden of
proof beyond a reasonable doubt, the Commonwealth must bear the burden
of showing why an arrest record should not be expunged.” Moreover, the
A.M.R. case extensively discussed each of the Wexler factors, specifically,
directing that all of the factors must be considered. Id. at 1270.
¶ 6 Appellant’s issues essentially raise arguments concerning a failure by
the trial court to conduct a proper Wexler balancing test and a failure by
the Commonwealth to meet its burden of showing that its interests in
preserving Appellant’s criminal record outweigh Appellant’s right to be free
from harm arising from the maintenance of those records. In response to
Appellant’s allegation that the trial court did not properly perform the
Wexler balancing test, the trial court stated:
In arriving at its decision, the Court placed great weight in
the strength of the Commonwealth’s case against [V.A.M.], and
in this connection notes that [V.A.M.] was never found not
guilty, but to the contrary only had his case dismissed when the
victim could not appear to testify a second time, which was over
ten years later, because she could not be found. Although
[V.A.M.] presented some evidence from a private investigator
who found the victim’s address back in 1996, it could not be
conclusively established that the District Attorney’s Office could
have found the victim. Further, Mr. Fisher and Mr. Erhlich both
testified to the strength of the Commonwealth’s case against
[V.A.M.] and how the DNA results do not mean that [V.A.M.]
was not one of the perpetrators of the rape of the victim, but
only that he did not ejaculate during the rape. The Court found
the testimony of Mr. Fisher and Mr. Erhlich to be entirely
reasonable and credible.
The Court believes that the Commonwealth has a great
interest in retaining the arrest record stemming from crimes as
serious as rape. The general public should have knowledge of
the arrest of a person for rape where they are convicted, and
then later are granted a new trial due to DNA evidence. It is in
society’s best interest to make available to the public any thing
indicative of a defendant’s potential propensity to commit serious
crimes. Specifically in this case, a nolle prosse of [V.A.M.’s]
charges, ten years after the incident occurred, because the
victim could not be found, is not enough to justify granting the
expungement of [V.A.M.’s] arrest record for that crime.
T.C.O. at 4-5.
¶ 7 Keeping in mind that none of the cases cited above (or cases cited in
the above identified cases) deal with a situation like the one now before this
Court, we, nevertheless, are persuaded from our review of those cases that
the burden of showing why Appellant’s arrest, conviction and imprisonment
should not be expunged remains on the Commonwealth and that the
Wexler factors are to be applied in this type of case.
¶ 8 Here, the Commonwealth’s witnesses testified about the strength of
the original case against Appellant and explained their position that the DNA
results would not exclude Appellant as the perpetrator. To refute the
Commonwealth’s testimony regarding the strength of the case, Appellant
offered a witness (a private detective) who indicated that by using the
methods available in 1996-97 he was able to determine where the victim
lived at the time the Commonwealth was searching for her and that the nolle
prosse showed that the Commonwealth’s case for a re-trial was not strong at
¶ 9 The balance of the information received by the court consisted of
argument by both attorneys. Some of that information was fact based, but
was not supported by testimony or other evidence. Appellant’s attorney
argued to the court below that Appellant spent 10 years and two months in
prison and that 12 years had passed since the conviction was vacated and
the new trial ordered (a total of 22 years since the arrest on the rape
charge). He also acknowledged that Appellant had a criminal trespass
conviction at the time he was 19 years old, a receiving stolen property
conviction for accepting a package that contained stolen property while
serving the sentence that was vacated, and a defiant trespass conviction for
which he received probation, with no convictions occurring since 1998. The
Commonwealth responded that Appellant had been arrested a total of 11
times, however, no time frame or details as to the alleged crimes were
provided. Apparently, none of those arrests resulted in convictions. The
Commonwealth also argued that there was no showing of prejudice to
Appellant if the conviction is not expunged.
¶ 10 Our review of the trial court’s opinion setting forth its reasons for
denying Appellant’s expungement petition reveals that the court only
considered the first two factors listed in Wexler, namely, finding that the
Commonwealth’s case against Appellant was strong, and that it is in
society’s best interest to have available a defendant’s “potential propensity
to commit serious crimes.” T.C.O. at 5. We do not comment on the court’s
finding that the Commonwealth’s case was strong,2 but we do note that the
2 Cf. Commonwealth v. Richardson, 511 A.2d 827 (Pa. Super. 1986). In
Richardson, the appellant, who was a cab driver, was arrested and charged
with rape and other crimes he allegedly committed against a female
passenger. Although the victim testified at the trial, a mistrial was declared
following reference to the appellant’s passing of a lie detector test. At the
second trial, the victim refused to testify and the case was dismissed and the
appellant was discharged. The motion to expunge the arrest was denied.
On appeal, this Court reversed, concluding that “we can only speculate as to
the strength of the case,” id. at 829, and only can state that there was
sufficient evidence to go to trial.
court in A.M.R. recognized that “[t]he ‘future case’ argument is similarly
unpersuasive: the Supreme Court in Wexler expressly rejected the
argument that a general interest in maintaining an arrest record overrides
the individual’s interest in expungement.” A.M.R., 887 A.2d at 1270. See
also Richardson, 511 A.2d at 829 (stating that the blot on a person’s
character stemming from a rape charge outweighs the Commonwealth’s
valid interests). Therefore, the trial court’s reasoning with regard to the
second Wexler factor is an insufficient basis on which to find that the
Commonwealth met its burden pertinent to that factor.
¶ 11 Moreover, contrary to the court’s determination that it performed the
Wexler balancing test and found that “the Commonwealth had met its
burden of affirmatively justifying retention of [V.A.M.’s] arrest record,”
T.C.O. at 4, we conclude that nothing in its opinion addresses the other
Wexler factors. Beyond this, our review of the record, including the petition
for expungement, the order granting a new trial, and the transcript of the
hearing, reveals that information necessary to conduct the appropriate
Wexler review was contained therein. However, without the
Commonwealth’s submission of this information at the time of the hearing,
we are not able to confirm that the court was in possession of this
information relating to the other Wexler factors. Consequently, we must
conclude that the Commonwealth did not carry its burden of proof in this
matter and, as a result, we are compelled to conclude that an abuse of
discretion was committed. Accordingly, the order denying Appellant’s
petition to expunge must be reversed.
¶ 12 Order reversed. Case remanded with direction to expunge the record
as requested. Jurisdiction relinquished.
¶ 13 Judge Shogan files a dissenting opinion.
COMMONWEALTH OF PENNSYLVANIA,
: IN THE SUPERIOR COURT OF
: No. 1101 EDA 2008
Appeal from the Order Entered March 5, 2008,
Court of Common Pleas, Philadelphia County,
Criminal Division, at Nos. MC-51-CR-0519001-1986 and
BEFORE: BENDER, SHOGAN, JJ. and McEWEN, P.J.E.
DISSENTING OPINION BY SHOGAN, J.:
¶ 1 While I agree with the Majority’s statement of the law in this area, I
cannot accept the Majority’s conclusion that the trial court abused its
discretion under the specific facts of this case.
¶ 2 My review of the record reveals that the trial court was in possession
of sufficient information to conduct a balancing test pursuant to
Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981).
Furthermore, the trial court stated that it did conduct the balancing test set
forth in Wexler. Trial Court Opinion, 7/1/08, at 4. Although some of the
information presented to the trial court was in the form of admissions by
counsel during argument, it was appropriate for the trial court to
have considered such admissions in its application of Wexler. See
Commonwealth v. Johnson, 961 A.2d 877 (Pa. Super. 2008) (stating that
counsel represent their clients and their admissions are prima facie the
admissions of their clients).
¶ 3 Moreover, the fact that the focus of the trial court’s 1925(a) opinion
was the great weight it placed on the strength of the Commonwealth’s case
against Appellant does not justify reversal. See Commonwealth v.
Sanders, 814 A.2d 1248, 1251-1253 (Pa. Super. 2003) (stating, in a
juvenile decertification matter, that the decertification court “need not
address, seriatim, the applicability and importance of each factor” it
considers and concluding “because reasons exist of record which support the
decertification court’s decision, we cannot reweigh the factors or evidence
presented”). If the Majority finds the trial court’s analysis lacking, I believe
the more appropriate course would be to remand this matter to the trial
court for a supplemental opinion addressing all of the Wexler factors in a
more thorough fashion. See, e.g., Commonwealth v. Ragan, 653 A.2d
1286, 1288 (Pa. Super. 1995) (remanding matter to trial court for
preparation of supplemental opinion detailing its decision and findings on a
weight of the evidence claim). Accordingly, I am constrained to respectfully