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?

(more…)

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.

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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.

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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
J. A08023/09
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
J. A08023/09
3
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?
J. A08023/09
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.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY FILED: July 27, 2009

The Department of Transportation, Bureau of Driver Licensing (DOT)

appeals the order of the Court of Common Pleas of Lackawanna County (trial

court) which sustained the appeals of Sean Robert Guinan (Guinan) from two

consecutive ninety day suspensions¹ of his driver’s license pursuant to Section

1532(d) of the Vehicle Code (Code), 75 Pa.C.S. §1532(d).² The trial court ordered

that the two ninety day suspensions be served concurrently.

¹ The trial court consolidated the appeals for hearing but issued two separate orders. DOT appealed each order.  This Court consolidated the two appeals.

² Section 1532(d) of the Code states in pertinent part as follows:

The department shall suspend the operating privilege of any person upon receiving a certified record of the driver’s conviction, adjudication of delinquency or admission into a preadjudication program for a violation under 18 Pa.C.S. § 6307 (relating to misrepresentation of age to secure liquor or malt or brewed beverages), 6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages) or 6310.3

(Footnote continued on next page…)

By official notice dated July 15, 2008, DOT informed Guinan that his operating privilege was suspended for ninety days effective August 19, 2008, as a result of his violation of Section 6310.3 of the Crimes Code, 18 Pa.C.S. §6310.3, (relating to carrying a false identification card) on June 14, 2008. Also, by official notice dated July 15, 2008, DOT informed Guinan that his operating privilege was suspended for ninety days effective November 17, 2008, as a result of his violation of Section 6308 of the Crimes Code, 18 Pa.C.S. §6308, (relating to underage drinking) on June 14, 2008. Guinan appealed both suspensions to the trial court.

 At a de novo hearing, DOT introduced a packet of documents certified by the Director of the Bureau of Driver Licensing.  The packet contained the official notices of suspensions; the reports of a court ordering the suspensions; and Guinan’s driving record. Guinan challenged the length of the suspensions. His attorney argued that the two ninety day suspensions should be concurrent rather than consecutive. DOT’s attorney argued that the trial court did not have the discretion to make the suspensions concurrent.

The trial court ordered DOT to reinstate the suspension of Guinan’s operating privileges and ordered the two suspensions to run concurrently for a total period of ninety days. The trial court reasoned:

(continued…)

(relating to carrying a false identification card).  The duration of the suspension shall be as follows:

(1) for a first offense, the department shall impose a suspension for a period of 90 days.

Under the fair reading of the statute it appears that the Court has the discretion as to whether or not the suspension shall read consecutive or concurrent and the Court in the exercise of that discretion determined that basic fairness required that the two ninety (90) day suspensions run concurrent for a total of ninety (90) days.

Trial Court Opinion, February 27, 2009, at 2; Reproduced Record at 53a.

DOT contends that the trial court erred as a matter of law when it ordered the suspensions to run concurrently because DOT is required to impose all operating privilege suspensions consecutively.³

DOT asserts that under Section 1544 of the Code, 75 Pa.C.S. §1544(b), prohibits concurrent suspensions. Section 1544(b) of the Code provides:

(b) Additional suspension.—When any person’s record shows an additional suspension of the operating privilege assessed during a period of suspension or revocation, the department shall extend the existing period of suspension or revocation for the appropriate period and the person shall be so notified in writing.

In Xenakis v. Department of Transportation, Bureau of Driver Licensing, 702 A.2d 572 (Pa. Cmwlth. 1997), this Court addressed a similar factual situation. Markos Jason Xenakis (Xenakis) was convicted on October 4, 1995, for violating Sections 6307, 6308, and 6310.3 of the Crimes Code, 18 Pa.C.S. §§6307, 6308, and 6310.3. Section 6307 relates to misrepresentation of age to secure

3

This Court’s review is limited to determining whether the trial court’s findings are supported by competent evidence, whether errors of law were committed, or whether the trial court committed an abuse of discretion.  Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996).

liquor, malt, or brewed beverages.  Sections 6308 and 6310.3 are the same sections

that Guinan violated. For each conviction, Xenakis received a notice from DOT

that his operating privilege was suspended for a ninety day period. Xenakis

appealed to the Court of Common Pleas of Allegheny County.  Xenakis argued

that because each conviction arose from the same incident that only one ninety day

suspension was warranted under Section 1532(d) of the Code, 75 Pa.C.S.

§1532(d). Xenakis also argued that he had already served one hundred twenty

days of a suspension. The Court of Common Pleas of Allegheny County sustained

the appeal and determined a single ninety day suspension was proper because the

charges arose from a single incident and Xenakis had already served his

suspension. Xenakis, 702 A.2d at 573-574.

DOT appealed to this Court and contended that under Section 1532(d)

of the Code it was required to impose a ninety day suspension for each conviction.

Xenakis, 702 A.2d at 574. This Court agreed and reversed:

Section 1532(d) further provides that the term of suspension for a first offense is 90 days; one year for a second offense; and two years for a third or subsequent offense. The section also provides that multiple suspensions are to be served consecutively.

Licensee [Xenakis] was convicted of three separate offenses related to an incident that occurred on September 27, 1995.  Separate 90-day suspensions are warranted where each offense is characterized separately and none of the offenses are lesser-included offenses of the others. . . . . . . . Licensee [Xenakis] violated Section 6307 of the Crimes Code when he presented himself to a licensed dealer, distributor or other person and falsely represented that he was 21 years of age or older in order to obtain alcoholic beverage. Licensee [Xenakis] violated Section 6308 when, among other things, he purchased and consumed an alcoholic beverage. He violated Section 6310.3 by carrying an identification card that falsely identified the name, age, date of birth or photograph of Licensee [Xenakis] as being 21 years of age or older.  Different offers of proof are required to convict under each of the offenses, which by their terms are separate and distinct. . . . . Here, DOT did not use an enhancement provision but instead imposed a first offense 90-day suspension for each violation. Each conviction arising from a separate act merits punishment . . . and under Section 1544(b) of the Vehicle Code, 75 Pa.C.S. § 1544(b), all suspensions imposed upon a licensee’s operating privilege are to be served consecutively. . . .

. . . . Because Licensee was convicted for three separate and distinct violations of the Crimes Code, DOT had the authority to impose consecutive 90-day suspensions. (Citations omitted).

Xenakis, 702 A.2d at 574-575.

Similarly, in Department of Transportation, Bureau of Driver

Licensing v. Gonzalez, 543 A.2d 231 (Pa. Cmwlth. 1988), this Court held that

suspensions for two DUI convictions could not be served concurrently because

Section 1544 of the Code, 75 Pa.C.S. §1544, required that mandatory periods of

suspension be served consecutively.

Here, Guinan was convicted of two offenses which this Court in

Xenakis determined were separate not lesser included offenses.  This Court has

consistently held that two separate offenses necessitate two periods of suspension.

This Court has further determined that under Section 1544(b) of the Code, 75

Pa.C.S. §1544(b), these suspension periods must be served consecutively and not concurrently. Consequently, the trial court erred when it ordered that DOT apply the suspensions concurrently.

Accordingly, this Court reverses.

BERNARD L. McGINLEY, Judge

Attorney Andrew Shubin called the case “doomed from the beginning,” yet a Daily Collegian photographer faced misdemeanor charges for months after the October 2008 downtown State College riot.
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STATE COLLEGE — Remember the fallout surrounding the student-created holiday “State Patty’s Day” in February?

Bars attracted a lot of students during State Patty’s Day, but also the attention of liquor control enforcement.

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Mike Scarcella, 07-28-2009

In the eyes of the Justice Department, Zhenli Ye Gon is a major player.

The one-time fugitive allegedly amassed a fortune importing and selling ingredients to methamphetamine producers in Mexico. A March 2007 raid on his mansion in Mexico City turned up $207 million in bundled cash — the single largest seizure of alleged drug money in the world. When federal drug agents arrested him in an Asian restaurant in suburban Maryland in July 2007, they were certain they had nabbed a kingpin. (more…)

On Oct. 25 last year, thousands of students rushed into Beaver Canyon to celebrate Penn State’s victory over rival Ohio State.

We didn’t know it, but the First Amendment was on the line.

(more…)