One irony about the problem of dangerous drinking among Penn State students is that it can be either a wedge dividing town and gown or a common cause that binds our community as one.
The Pennsylvania Superior Court dismissed a Montgomery County Underage Drinking citation where the Commonwealth relied on PBT results as the primary evidence of a sixteen year old’s guilt and introduced no evidence that the device had been calibrated as required by Pennsylvania law.
Proposed act unconstitutional, group says
Mike Joseph
STATE COLLEGE — A proposed borough ordinance to curb the impact of rowdy parties by holding hosts responsible for the illegal activities of guests has come under fire from a national organization that advocates individual rights.
The American Civil Liberties Union told State College in a letter Friday that the borough’s proposed “nuisance gathering ordinance,” which is scheduled for a public hearing Monday night, violates the U.S. Constitution.
Sara Ganim
STATE COLLEGE — Scott Marion never thought selling $35 worth of marijuana to a college buddy might land him in state prison for more than two years.
Sentencing guidelines for that kind of crime call for probation to 30 days in county jail — with one huge exception.
If you are caught selling drugs within 1,000 feet of a school, state law says prosecutors can seek a two-year mandatory minimum sentence.
ORDINANCE NO.
NUISANCE GATHERING ORDINANCE
Be it ENACTED AND ORDAINED by the Borough Council of the Borough of State College, and it is hereby Enacted and Ordained by authority of same, as follows:
SECTION 1. Amend the State College Borough Codification of Ordinances, Chapter V. Conduct. To add a new Part J. Nuisance Gathering Ordinance, to read as follows:
PART J
NUISANCE GATHERING
Section 1001. Purpose and Findings. The Borough of State College intends to preserve the peace, health, safety, and welfare of the residents and neighborhoods in the municipality by reducing the illegal behavior and conduct often occurring at events or gatherings that
seriously detracts from the peace, health, safety, and welfare of the community.
The Borough of State College finds that:
a. Events and gatherings held on private or public property where persons gather and where Liquor or Malt or Brewed beverages are consumed and/or illegal controlled substances are used by persons attending such events or gatherings often results in disruptive, disorderly, destructive, violent, and hazardous conditions that constitute a threat to peace, health, safety, and welfare of the community that require prevention, response to, and/or abatement.
b. Often events and gatherings held on private or public property where persons gather and where Liquor or Malt or Brewed beverages are consumed and/or illegal controlled substances are used by persons attending such events or gatherings result in one or more of the following:
(1) Liquor or Malt or Brewed beverage-related or illegal controlled substance-related traffic crashes; or
(2) Liquor or Malt or Brewed beverage-related or illegal controlled substance-related injuries from falls and other accidents; or
(3) Overconsumption of Liquor or Malt or Brewed beverage requiring emergency medical treatment; or
(4) Providing Liquor or Malt or Brewed beverage to persons under 21 years of age; or
(5) Residents being awakened overnight from loud noises; or
(6) Violent outbursts that result in physical injury to persons; or
(7) Residents having their property damaged or stolen.
c. These events and gatherings that become unlawful public nuisances result in an inordinate amount of police service resources deployed to these events or gatherings resulting in additional costs to the Borough of State College taxpayers. Because of these inordinate costs, it is necessary to recover the police service costs for certain unlawful public nuisances.
Section 1002. Authority. This ordinance is enacted pursuant to XXXXXXXX
Section 1003. Definitions. For purposes of this ordinance, the following terms have the following meanings:
Event or gathering. Event or gathering means any group of three (3) or more persons who have assembled or gathered together for a social function or other activity on public or private property whether indoors or outdoors.
Host. Host means to aid, conduct, allow, entertain, organize, supervise, control, or overtly permit a gathering or event.
Liquor. Liquor as defined by Title 18 – Pennsylvania Crimes Code Section 6310.6
Malt or brewed beverages. Malt or brewed beverages as defined by Title 18 — Pennsylvania Crimes Code Section 6310.6
Person. Person means any individual, partnership, co-partnership, corporation, or any association of one or more individuals.
Police Service Costs. Police Service Costs means the cost to the Borough of State College for police services rendered in responding to a call at a nuisance gathering or otherwise maintaining order and public peace and safety and stopping public disturbances at a nuisance
gathering, including, but not limited to, the salaries and other compensation of police officers, appropriate administrative costs allocable thereto, the cost of repairing damaged Borough of State College equipment and property, and the cost of any medical treatment of injured police officers. The cost for salaries and other compensation of police officers plus the administrative costs shall be established annually by the Borough of State College Finance Department. Cost of
repairing damaged equipment and the cost of any medical treatment of injured police officers shall be based on actual costs.
Premise. Premise means any home, yard, fraternity house, farm, field, land, apartment, condominium, hotel or motel room, or other dwelling unit. or a hall or meeting room, park, or any other place of assembly,public or private, whether occupied on a temporary or permanent basis, whether occupied as a dwelling or specifically for a party or other social function, and whether owned, leased, rented, or used with or without permission or compensation.
Underage Person. Underage person is any individual under twenty-one (21) years of age.
Section 1004. Declaration of nuisance gathering. An event or gathering that results in one or more of the following illegal activities at a premise or on neighboring public or private property is hereby declared to be an unlawful public nuisance as defined herein:
a. Excessive, unnecessary, or unreasonably loud noise which does or is likely to disturb the comfort, quiet, or repose of the neighborhood (Section 5503 of the Pennsylvania Crimes Code – Title 18) and/or (Chapter V, Part A, Section 103 of the Borough of State College
Codification of Ordinances); or
b. Public disturbances, brawls, fights, or quarrels or Indecent or obscene conduct (Section 5503 of the Pennsylvania Crimes Code – Title 18); or
c. Open container – (Chapter V, Part C., Section 302 c. of the Borough of State College Codification of Ordinances); or
d. Purchase, consumption, possession, or transportation of Liquor or Malt or Brewed beverages (Section 6308 of the Pennsylvania Crimes Code -Title 18); or
e. Public drunkenness (Section 5505 of the Pennsylvania Crimes Code – Title 18); or
f. Public urination or defecation (Section 5503 of the Pennsylvania Crimes Code – Title 18); or
g. Unlawful sale, furnishing, or consumption of intoxicating beverages (Section 6310.1 of the Pennsylvania Crimes Code – Title 18); or,
h. Unlawful deposit of trash or litter – Section 6501 of the Pennsylvania Crimes Code (Title 18); or
I. Criminal mischief (Section 3304 of the Pennsylvania Crimes Code -Title 18); or
j. Sale, manufacture, possession of any controlled substances as defined in The Controlled Substance, Drug, Device and Cosmetic Act” Act of 1972, P.L. 233, No. 64; or
k. Open lewdness or indecent exposure (Section 5901 or Section 3127 of the Pennsylvania Crimes Code – Title 18); or
1. Other illegal conduct or condition which injures, or endangers the safety, health, or welfare of the neighborhood.
Section 1005. Prohibited Act. Any premise owner, occupant, tenant, or other person having any possessory control, individually or jointly with others, of any premise who sponsors, conducts, hosts, invites, or overtly permits an event or gathering that at any time of the event or gathering to become an unlawful public nuisance as defined in Section 4 is hereby deemed to have committed a violation of this section.
Section 1006. Penalty for violation.
(a) Any person who violates Section 5 is guilty of a summary offense punishable a fine of not less than $300 nor more than $600 or by imprisonment for not more than 30 days, or both.
(b) For a second or subsequent violation of Section 5 in a l2-month period, the person is guilty of a summary offense punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not more than 90 days, or both.
(c) A criminal penalty provided for under subsections (a) and (b) of this section may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct.
Each act of violation and every day upon which such violation occurs shall constitute a separate offense.
Section 1007. Payment for Police Service Costs Required. Any premise owner, occupant, tenant, or other person having any possessory control, individually or jointly with others, of any premise who sponsors, conducts, hosts, invites, or overtly permits an unlawful public nuisance
event or gathering shall pay the police service costs for the response, investigation, documentation, and prosecution of the second and any subsequent unlawful public nuisance events or gatherings within a 180 day period of time.
Section 1008. Notice of Police Service Costs. Whenever the police are called to respond to and declare a property in violation of this ordinance, a representative of the Police Department shall notify the owner of the private property where the nuisance gathering took place
and also the Person in Charge (PIC) of such property if the owner has designated a “PIC” in accordance with the Borough of State College’s Property Maintenance Code (Chapter IV, Part L, Section 1204, Chapter 9, Section 901.2), by regular mail at the last known address of such owner
and/or Person in Charge. This notification will include at a minimum that the police identified a nuisance gathering at the owner’s property and that if the police are again called to respond to a nuisance gathering at such property within 180 days after their initial response, such owner shall be required to pay police service costs to the Borough of State College for such responses.
Section 1009. Collection of Police Service Costs. For the second and all subsequent responses to unlawful public nuisance events or gatherings within 180 days as provided for in Section 7 of this Ordinance, the Chief of Police or his/her duly authorized designee shall notify the Borough of State College Finance Department in writing of the name and address of the owner of the private property where the nuisance gathering took place, the dates of the initial and subsequent
response(s), and necessary details related to the billable costs as listed in Section 3, (f) for the subsequent response. The Borough of State College Finance Director or his/her duly authorized designee shall then bill the owner for the appropriate amount and which shall be due and payable to the Borough of State College within thirty (30) days of such billing.
Section 1010. Failure to Pay Police Service Costs. Any police service costs which have not been paid within thirty (30) days of the billing therefore maybe collected, together with a penalty of ten percent (10%) thereof and interest at the rate of ten percent (10%) per annum added thereto, by civil action against the owner and/or may be imposed or assessed against the owner’s private property as a municipal claim as provided by law.
Section 1011. Severability. If any section, subsection, sentence, clause, phrase, word, or other portion of this ordinance is, for any reason, held to be unconstitutional or invalid, in whole, or in part, by any court of competent jurisdiction, such portion shall be deemed severable, and such unconstitutionality or invalidity shall not affect the validity of the remaining portions of this ordinance, which remaining portions shall continue in full force and effect.
SECTION 3. Effective Date. This ordinance shall take effect thirty (30) days following its final passage and adoption.
September 30, 2009, Bellefonte, PA
District Justice Carmine Prestia dismissed furnishing alcohol to minors and related alcohol violations against Tau Epsilon Phi after a preliminary hearing in Centre County Central Criminal Court. The State College Police charged the fraternity with misdemeanors following a summer party at the house. The Commonwealth called an eighteen year old student, who had been cited for underage drinking and disorderly conduct after being caught urinating in bushes, to testify against the fraternity in return for favorable consideration from the District Attorney’s office. The student testified that he drank several beers at the fraternity house. The court agreed with Attorney Andrew Shubin’s argument that there was insufficient evidence linking the fraternity as a corporate entity to any criminal wrongdoing and dismissed all charges.
By Jack Keefe and Dougal Sutherland
The raid by state police on a party at Haverford College and the “College Enforcement Initiative” cited in part as the raid’s cause have put many members of the college community on edge. Many questions have emerged to order the confusion generated from that raid: What is the College Enforcement Initiative? Why did the state police target Haverford? Will they target Swarthmore? What can be done to prevent that?
By Peter Goldberger and Anna Durbin
The forum held in Marshall Auditorium on Friday evening, September 4, provided an opportunity for students to air some of their questions about legal issues arising in the wake of the previous night’s State Police “alcohol awareness” raid on an indoor-outdoor party at Lloyd Hall. As career criminal defense lawyers and longtime friends of Haverford College (one of us an alum from the Class of 1971 and the other an experienced local attorney for many arrested students over the last decade), we were invited to participate in the forum as legal resources. This op-ed shares some of what we had to say. The reader must understand, however, that all of the information in this column is necessarily very general and superficial; it is no substitute for individual, confidential legal counseling, tailored to the facts and circumstances of a particular person’s situation.
From the Altoona Mirror
Penn State Altoona freshman Acacia Kelley has a good idea how an underage drinking citation could affect her life. School expulsion, future career plans, the 18-year-old rattled off as she balanced a laptop on her legs while sitting on a campus bench Wednesday afternoon.
“My mom wouldn’t be too happy with me,” she said. “I try to be smart about that stuff.”
Beside criminal charges and disappointed parents, college students caught drinking while under age also face consequences at school.
Superior Court affirms trial court expungement order regarding rape arrest
2009 PA Super 156
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
V.A.M., :
:
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.:
CP-51-CR-0603191-1986
CP-51-CR-0519001-1986
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
as follows:
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
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2
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.].
[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
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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?
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4
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
J. A08023/09
5
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.[1] 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
circumstances”).
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.
J. A08023/09
6
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:
[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, and [5] 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
J. A08023/09
7
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.
J. A08023/09
8
¶ 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
all.
¶ 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
J. A08023/09
9
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.
J. A08023/09
10
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
J. A08023/09
11
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.
J. A08023/09
COMMONWEALTH OF PENNSYLVANIA,
Appellee
v.
V.A.M.,
Appellant
: IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
:
:
: 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
CP-51-CR-0603191-1986.
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
J. A08023/09
2
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
dissent.