J-S10021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS PAUL HUNSBERGER

                            Appellant                No. 2201 EDA 2014


                    Appeal from the Order dated July 11, 2014
               In the Court of Common Pleas of Montgomery County
                 Criminal Division at No: CP-48-CR-0003235-1986


BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 27, 2015

        Appellant Thomas Paul Hunsberger pro se appeals from the July 11,

2014 order of the Court of Common Pleas of Montgomery County (trial

court), which denied his petition for expungement. Upon review, we affirm.

        The facts underlying this case are undisputed. As summarized by the

trial court:

        On July 28, 1986, Lower Merion Township Police Officer Francis
        J. Donato filed a criminal complaint against [Appellant] charging
        him with [c]riminal [t]respass-[d]efiant [t]respasser (M3)[, 18
        Pa.C.S.A. § 3503(b)(1)(i)]; [d]isorderly [c]onduct (M3)[, 18
        Pa.C.S.A. § 5503(a)(1)(2)(3)(4)]; and [h]arassment (S)[, 18
        Pa.C.S.A. § 2709(a)(1)(2)(3)]. The charges arose from the
        complaint of George Fusaro. Mr. Fusaro called the Lower Merion
        Township Police to report that [Appellant] was again on his
        property, after he had been asked to leave several times, yelling
        obscenities and threatening to kill Mr. Fusaro and refusing to
        leave the property. Mr. Fusaro reported that for at least three
        months, [Appellant] had been harassing him and his family. On
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        November 13, 1986, [Appellant], represented by Carolyn
        Tornetta Carluccio, Esquire[, now a judge at the trial court],
        entered a negotiated guilty plea to the charge of [c]riminal
        [t]respass-[d]efiant [t]respasser, before the Honorable Horace
        A. Davonport. [Appellant] was sentenced to be placed on one
        (1) year probation. No fine or costs were imposed. As a
        condition of probation, [Appellant] was to attend out-patient
        psychiatric treatment.     As part of the plea agreement, the
        remaining charges were nolle prossed by the [Montgomery
        County] District Attorney.

Trial Court Rule 1925(a) Opinion, 8/22/14, at 2 (footnotes omitted).

        On July 5, 2013, under Pa.R.Crim.P. 790, Appellant petitioned the trial

court for expungement of his 1986 conviction for criminal trespass as well as

the nolle prossed charges for disorderly conduct and harassment. Following

a hearing, on July 16, 2014, the trial court entered an order denying

Appellant’s petition for expungement.             Appellant timely appealed to this

Court.

        Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of

on     appeal,   challenging     the   trial   court’s   denial   of   his   petition   for

expungement.        On August 22, 2014, the trial court issued a Pa.R.A.P.

1925(a) opinion, concluding that it denied Appellant’s expungement petition

because Appellant failed to satisfy the requirements of Section 9122 of the

Criminal History Record Information Act (Act), 18 Pa.C.S.A. § 9122.1
____________________________________________


1
    Section 9122 of the Act provides in pertinent part:

        (b) Generally.--Criminal history record information may be
        expunged when:
          (1) An individual who is the subject of the information
          reaches 70 years of age and has been free of arrest or
          prosecution for ten years following final release from
          confinement or supervision.
(Footnote Continued Next Page)


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      On appeal, Appellant argues only that the trial court abused its

discretion in denying his petition for expungement with respect to his 1986

conviction for criminal trespass.2 We disagree.

      We observe at the outset that, because Appellant’s issues involve a

petition for expungement, they are not cognizable under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9545-46.       Thus, because no remedy is

available to Appellant under the PCRA, his expungement petition cannot be

construed as a PCRA petition. See Commonwealth v. Lutz, 788 A.2d 993,

995-96 n.7 (Pa. Super. 2001) (citations omitted) (holding the appellant’s


                       _______________________
(Footnote Continued)

          (2) An individual who is the subject of the information has
          been dead for three years.
             (3)(i) An individual who is the subject of the
             information petitions the court for the expungement
             of a summary offense and has been free of arrest or
             prosecution for five years following the conviction for
             that offense.
             (ii) Expungement under this paragraph shall only be
             permitted for a conviction of a summary offense.
18 Pa.C.S.A. § 9122(b).
2
  To the extent Appellant here seeks to challenge the 1986 conviction for
criminal trespass because of sufficiency of the evidence, we decline to
address such challenge because the time for challenging the conviction has
long lapsed. Even if the time had not lapsed, we still would decline to
address any challenges to the 1986 conviction because a defendant who
pleads guilty, as Appellant did here, waives all claims except lack of
jurisdiction, validity of the plea, and legality of the sentence.
Commonwealth v. Tareila, 895 A.2d 1266, 1267 (Pa. Super. 2006).

Appellant does not challenge the trial court’s denial of his petition for
expungement with respect to the nolle prossed charges of disorderly conduct
or harassment.



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motion for expungement cannot be considered as a PCRA petition).

Accordingly, Appellant’s underlying expungement petition and the instant

appeal from the order denying the petition are not subject to the eligibility

requirements or time constraints of the PCRA, and thus there is no

impediment to our review. Id.

     Addressing the law regarding expungement of criminal records

generally, our Supreme Court has explained:

            There is a long-standing right in this Commonwealth to
     petition for expungement of a criminal arrest record, a right that
     is an adjunct of due process. Carlacci v. Mazaleski, [] 798
     A.2d 186, 188 ([Pa.] 2002). The decision to grant or deny a
     petition to expunge rests with the sound discretion of the trial
     court, and we review that court’s decision for abuse of
     discretion. Commonwealth v. Waughtel, 999 A.2d 623, 624–
     25 (Pa. Super. 2010); Commonwealth v. A.M.R., 887 A.2d
     1266, 1268 (Pa. Super. 2005).

            Judicial analysis and evaluation of a petition to expunge
     depend upon the manner of disposition of the charges against
     the petitioner. When an individual has been convicted of the
     offenses charged, then expungement of criminal history records
     may be granted only under very limited circumstances that are
     set forth by statute. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania
     State Police, [] 983 A.2d 627, 633 ([Pa.] 2009). When a
     petitioner has been tried and acquitted of the offenses charged,
     we have held that the petitioner is “automatically entitled to the
     expungement of his arrest record.” Commonwealth v. D.M., []
     695 A.2d 770, 772–73 ([Pa.] 1997). When a prosecution has
     been terminated without conviction or acquittal, for reasons such
     as nolle prosse of the charges or the defendant’s successful
     completion of an accelerated rehabilitative disposition program
     (“ARD”), then this Court has required the trial court to “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.”         Commonwealth v.
     Wexler, 431 A.2d 877, 879 (Pa. 1981); D.M., supra at 772
     (“We reiterate the authority of Wexler and the balancing test
     approved therein as the means of deciding petitions to expunge
     the records of all arrests which are terminated without
     convictions except in cases of acquittals.”).
            To aid courts in applying the balancing test for
     expungement, we also adopted in Wexler the following non-
     exhaustive list of factors that the court should consider:

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            These factors include [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, supra at 879 (citation omitted).
            We have emphasized that in applying the balancing test
      and considering the above factors, the court must analyze the
      particular, specific facts of the case before it. Id. at 880–81.
      The mere assertion by the Commonwealth of a general interest
      in maintaining accurate records of those accused of a crime does
      not outweigh an individual’s specific, substantial interest in
      clearing his or her record. Id. at 881–82.
            In addition, Wexler explicitly placed the burden of proof
      on the Commonwealth.

Commonwealth v. Moto, 23 A.3d 989, 993-94 (Pa. 2011) (emphasis

added).

      Instantly, with respect Appellant’s 1986 conviction for criminal

trespass, expungement is governed by Section 9122 of the Act.            See

Commonwealth v. Whiteford, 786 A.2d 286, 288 (Pa. Super. 2001)

(“Conviction records may be expunged only if the requirements of Section

9122 are met.”).    As noted earlier, Section 9122 provides in relevant part

that “[c]riminal history record information may be expunged when . . . an

individual who is the subject of the information reaches 70 years of age

and has been free of arrest or prosecution for ten years following final

release from confinement or supervision.”       18 Pa.C.S.A. § 9122(b)(1)

(emphasis added).

      Here, the trial court found Appellant has not yet reached the age of

70.   See Trial Court Rule 1925(a) Opinion, 8/22/14, at 1 (“[Appellant] is

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J-S10021-15



now [52] years old, not [70]; and he is not dead.”). 3 As a result, we must

agree with the trial court’s conclusion that under Section 9122, Appellant

has not met the preliminary statutory qualification for consideration of

expungement by the trial court. We, therefore, conclude the trial court did

not abuse its discretion in denying Appellant’s petition for expungement with

respect to his 1986 conviction for criminal trespass.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2015




____________________________________________


3
  We observe Section 9122(b)(3) is inapplicable here because the offense of
criminal trespass was graded as a third-degree misdemeanor (M3), i.e., not
as a summary offense.



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