J-A27008-17


NON-PRECEDENTIAL DECISION-SEE SUPERIOR COURT I.O.P. 65.37



TERRENCE GRAHAM,                          IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

LYNNA FLIPPEN,

                      Appellee                 No. 649 WDA 2016


               Appeal from the Order Entered April 1, 2016
          In the Court of Common Pleas of Washington County
                   Civil Division at No(s): 2007-8347


LYNNA FLIPPEN,                            IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

TERRENCE GRAHAM,

                      Appellant                No. 650 WDA 2016


               Appeal from the Order Entered April 1, 2016
          In the Court of Common Pleas of Washington County
                          Civil Division at No(s):
                                 2007-4767
                                 2008-9343
                                 2010-1074


LYNNA FLIPPEN,                            IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

TERRENCE GRAHAM,
J-A27008-17



                            Appellant                 No. 651 WDA 2016


                   Appeal from the Order Entered April 1, 2016
              In the Court of Common Pleas of Washington County
                              Civil Division at No(s):
                                     2007-4767
                                     2008-9343
                                     2010-1074


LYNNA FLIPPEN,                                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERRENCE GRAHAM,

                            Appellant                 No. 652 WDA 2016


                   Appeal from the Order Entered April 1, 2016
              In the Court of Common Pleas of Washington County
                              Civil Division at No(s):
                                     2007-4767
                                     2008-9343
                                     2010-1074


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED JANUARY 3, 2018

        Appellant, Terrence Graham, appeals pro se from the trial court’s April

1, 2016 order denying his “Petition for Expungement” in three separate

cases involving Protection from Abuse Act (PFA)1 petitions filed by Appellee,

Lynna Flippen, against Appellant (cases 2007-4767, 2008-9343, and 2010-
____________________________________________


1   23 Pa.C.S. §§ 6101-6122.



                                           -2-
J-A27008-17



1074), and one case involving a PFA petition filed by Appellant against

Flippen (case 2007-8374).2         After careful review, we reverse the orders in

each of the above-docketed cases, and remand to the trial court with

instructions.

       The trial court summarized the facts underlying this appeal, as follows:

             This matter involves four separate PFA petitions filed
       between [A]ppellant and [A]ppellee, Lynna Flippen, now
       deceased. These actions chronicle a horrific history of domestic
       violence between the parties, which culminated in the murder of
       Lynna Flippen and her acquaintance, Earnest Yarbrough, on May
       13, 2010. Appellant is currently serving two life sentences [of
       incarceration] after having been convicted of their murders.

            Three of the PFA petitions in question were filed by the
       deceased[, Flippen,] against [A]ppellant, her former paramour
       and father of her child.1       The fourth petition was filed by
       [A]ppellant as plaintiff against … [Flippen].2
          1 See docket numbers: []2007-4767 (650 WDA 2016),
          []2008-9343 (651 WDA 2016) and []2010-1074 (652 WDA
          2016).
          2   See docket number: []2007-8347 (649 WDA 2016).

             On August 17, 2007, upon [A]ppellee’s motion to withdraw
       or discontinue the action, the temporary PFA against [A]ppellant
       was dismissed at docket number []2007-4767. On October 31,
       2008, upon [Flippen’s] repeated failure to appear, the temporary
       PFA against [A]ppellant at docket number []2008-9343 was
       dismissed. On February 11, 2010, upon [Flippen’s] agreement
       to withdraw her request for a continuance, the temporary PFA
       against [A]ppellant at docket number []2010-1074 was
       dismissed.
____________________________________________


2 Appellant filed a notice of appeal in each of his four underlying PFA cases,
and then filed with this Court a petition to consolidate those appeals. We
granted Appellant’s petition and consolidated his appeals by per curiam
order entered May 23, 2016.



                                           -3-
J-A27008-17


            The PFA petition filed by [A]ppellant as plaintiff and
      [Flippen] as defendant at docket number []2007-8347 was
      denied a temporary protective order, and a final order was
      entered after a hearing on October 26, 2007, denying
      [A]ppellant’s petition.

            On June 14, 2011, [A]ppellant was found guilty after a trial
      by jury, of the first[-]degree murders of … Flippen and Earnest
      Yarbrough. Appellant was also found guilty of abuse of [a]
      corpse and tampering with evidence. On July 26, 2011, Judge
      Paul Pozonsky sentenced [A]ppellant to two life sentences of
      incarceration. The guilty verdict and judgment of sentence
      [were] affirmed by the Superior Court on February 15, 2013.
      [Commonwealth v. Graham, 68 A.3d 364 (Pa. Super. 2013).]
      The petition for review was denied by the Supreme Court on
      August 23, 2013. [Commonwealth v. Graham, 74 A.3d 125
      (Pa. 2013)].

            On March 30, 2016, [A]ppellant filed a Petition for
      Expungement of Protection From Abuse (“PFA”) Records on all
      four of the PFA docket numbers…. On [April 1], 2016, the trial
      court entered an order denying expungement of these PFA
      records.

Trial Court Opinion (TCO), 6/20/17, at 1-3 (some footnotes omitted).

      Appellant filed timely, pro se notices of appeal in each of his four PFA

cases. He also timely filed identical Pa.R.A.P. 1925(b) statements in each

case. On June 20, 2017, the trial court filed a joint Rule 1925(a) opinion.

Herein, Appellant raises three issues for our review:

      I.     Whether the PFA court erred by failing to address whether
             Appellant’s PFA[] records meet the expungement criteria
             set forth by the [Pennsylvania] Supreme Court?

      II.    Whether the PFA court abused its discretion by denying
             expungement which is contrary to the expungement
             standard set by the [Pennsylvania] Supreme Court?

      III.   Whether the PFA court erred by denying Appellant a
             hearing in which he would have been able to present facts
             and evidence to support expunction as the proper remedy?


                                     -4-
J-A27008-17



Appellant’s Brief at 4 (citations and unnecessary capitalization omitted).

      Appellant’s three issues are interrelated and, thus, we will address

them together. Essentially, Appellant contends that the trial court erred by

denying his petition to expunge his four PFA cases, as he is entitled to

expungement of those records as a matter of law under our Supreme Court’s

decision in Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002), and this

Court’s rationale in Commonwealth v. Charnik, 921 A.2d 1214 (Pa. Super.

2007).   Alternatively, Appellant claims that the court should have at least

conducted a hearing to determine if he has met the requirements for

expungement.

      We begin by discussing the cases on which Appellant relies. First, in

Carlacci, a temporary PFA order was issued against Carlacci; however, that

order was ultimately ordered null and void, as per a stipulation entered by

the parties. Carlacci, 798 A.2d at 187. In ruling that Carlacci was entitled

to expungement of that record, our Supreme Court focused on the fact that

the PFA petition was “discontinued before a hearing at which the plaintiff …

would have had to meet the burden of proving by a preponderance of the

evidence that the allegation of abuse contained in the PFA[] petition[] had

occurred.”   Carlacci, 798 A.2d at 190-91.      In other words, the trial court

had never issued a permanent order or made any findings of fact that the

allegations of abuse had actually happened; rather, the record contained

only “bald allegations of prior alleged acts of abuse that were contained in

[the plaintiff’s] petition, nothing more.” Id. at 191 (citation omitted).

                                     -5-
J-A27008-17



      After Carlacci, this Court decided Charnik. There, a final PFA order

was entered against Charnik following a hearing.         However, the plaintiff

ultimately sought, and was granted, leave to withdraw that final PFA order.

Thereafter, Charnik petitioned for expungement of the PFA record.             In

affirming the trial court’s denial of Charnik’s petition, we initially reiterated

Carlacci’s holding that “when a PFA[] petition filed against a PFA[]

defendant has been dismissed by court order, … or the PFA[] proceedings

never evolve beyond the temporary order stage, … expungement is proper

as a matter of law.”      Charnik, 921 A.2d at 1219-20 (emphasis added;

relying on Carlacci, supra, and P.E.S. v. K.L., 720 A.2d 487 (Pa. Super.

1998)).   However, we also declared that there exists an “expungement

continuum” that “ranges from (a) illegal or void civil commitments,

acquittals in criminal cases, and PFA matters that have not been proven and

brought to final order (such as … Carlacci), where expungement is proper

as a matter of law, to (b) non-conviction or arrest records, as in nol pros or

ARD, where expungement is a matter of judicial decision…, and to (c)

conviction records, where there is no right of expungement except by

statutory authorization in limited circumstances.” Id. at 1220 (emphasis in

original). We then held that Charnik’s PFA record was “closer to a conviction

rather than a non-conviction record[,]” as “a final order was entered … only

after facts were brought forth proving the allegations of abuse by a fair

preponderance of the evidence….”       Id.   Thus, we held that expungement

was not warranted, presumably because there is no statutory authorization

                                      -6-
J-A27008-17



for the expungement of a PFA record, id. at 1218, and Charnik also did not

meet the strict requirements for expungement of the records of a convicted

person, id. at 1217.

      Applying Carlacci and Charnik to the present case, it is clear that

three of Appellant’s PFA cases - 2007-4767, 2008-9343, and 2010-1074 -

fall under prong (a) on the ‘expungement continuum,’ and warrant

expungement as a matter of law. In those three cases, only temporary PFA

orders were entered against Appellant, and each of those orders were

ultimately dismissed before a hearing was held, at which Flippen would have

had to prove her allegations of abuse by a preponderance of the evidence.

Therefore, the records in those cases contain only bald, unproven allegations

of abuse, to which Appellant is entitled to expungement as a matter of law.

      In regard to Appellant’s PFA record in case 2007-8374, the issue is not

as clear. First, it is unusual that Appellant is seeking to expunge a record

that he himself initiated by filing a PFA petition against Flippen. Additionally,

a hearing was held in that case, and a final order was entered. However,

the final order denied Appellant’s request for PFA protection against Flippen.

He was also denied a temporary PFA order against her. Thus, it is clear that

the PFA allegations were never proven in case 2007-8374.          Consequently,

that case appears to also fall within prong (a) of the ‘expungement

continuum,’ thereby warranting expungement as a matter of law.              See

Charnik, 921 A.2d at 1220 (“The expungement continuum ranges from (a)

illegal or void civil commitments, acquittals in criminal cases, and PFA

                                      -7-
J-A27008-17



matters that have not been proven and brought to final order…, where

expungement is proper as a matter of law.”) (italicized emphasis omitted;

bolded emphasis added).

       Next, we briefly discuss the trial court’s attempt to distinguish

Appellant’s PFA cases from Carlacci, and its rationale for deciding that his

expungement petitions were properly denied under Charnik.               First, in

distinguishing Carlacci, the court reasoned:

              Here, unlike Carlacci, the PFA records which [Appellant]
       seeks to expunge were admitted into evidence during
       [A]ppellant’s criminal homicide trial held on June 14, 2011. At
       the conclusion of the trial by jury, [A]ppellant was found guilty of
       first[-]degree murder for the deaths of [A]ppellee Lynna Flippen,
       the plaintiff on three of the PFAs in question, and the defendant
       on the fourth, and her acquaintance[,] Earnest Yarbrough. Thus,
       applying the [Commonwealth v.] Wexler[, 431 A.2d 877 (Pa.
       1981),] balancing test,[3] the trial court concluded that there are
       legitimate reasons for maintaining the records, namely that the
       expungement of the temporary PFA records essentially would be
       tantamount to destruction of evidence used in [A]ppellant’s
       murder trial.

TCO at 5.

____________________________________________


3 In Wexler, our Supreme Court declared that in the case of a request to
expunge a criminal arrest record, the court “must balance the individual’s
right to be free from the harm attendant to the maintenance of the arrest
record against the Commonwealth’s interest in preserving such records.”
Wexler, 431 A.2d at 879. In conducting this balancing test, certain factors
should be weighed, including, but not limited to, “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.” Id.



                                           -8-
J-A27008-17



      The court’s rationale is unconvincing.      Initially, we have explicitly

declared that it is improper to apply the Wexler balancing test where, as in

this case, expungement is proper as a matter of law.        See Charnik, 921

A.2d at 1219 (declaring that where “expungement [is] proper as a matter of

law[,] … the Wexler balancing test [is] unnecessary”) (citing Carlacci, 798

A.2d at 191). Additionally, we stress that expunging the at-issue PFA cases

from Appellant’s record will not erase them from the evidentiary record of

his murder trial.   Appellant’s PFA records were properly admitted at that

trial, and they will remain in the record thereof, regardless of our decision in

this appeal.

      Second, the trial court found that our decision in Charnik supports its

conclusion that expungement is not warranted in Appellant’s case. The court

reasoned:

      In Charnik, the Superior Court denied appellant Theodore
      Charnik’s PFA expungement request on grounds that “it would be
      inappropriate, as well as fruitless, to expunge the PFA record
      when the criminal record would indicate indirect criminal
      contempt convictions stemming from violations of a PFA order.”
      … Charnik, 921 A.2d [at] 1221…. Likewise, the trial court found
      that it would be inappropriate and fruitless in the instant case to
      expunge the temporary PFA records when [Appellant] was
      subsequently convicted of murdering the woman who was
      seeking protection under the PFAs, especially given that the
      temporary PFA records were used as evidence during
      [A]ppellant’s murder trial.

TCO at 6.

      The trial court misconstrues our holding in Charnik, which was that

Charnik was “not entitled to seek expungement of his PFA record[,]” as it


                                     -9-
J-A27008-17



was “closer to a conviction record rather than a non-conviction

record.” Charnik, 921 A.2d at 1220 (emphasis added). Directly following

this holding, we stated:
      We note that the facts of this case illustrate a typical sequence in
      an abusive relationship; the abuse, the remorse, the
      forgiveness, and the repetition of that cycle.               Absent
      extraordinary cause, allowing a hearing to clear a record of
      abuse after a final order simply because the victim decided to
      forgive or “withdraw,” would not only draft the judiciary into the
      psychological struggle, but would overwhelm its already limited
      resources. The fact remains that a final PFA order was
      entered after notice and hearing, and, in addition, there were
      two contempts of that order that resulted in convictions, which
      remain on Charnik's record. As the trial court indicated, it would
      be inappropriate, as well as fruitless, to expunge the PFA record
      when the criminal record would indicate indirect criminal
      contempt convictions stemming from violation of a PFA order.

Id. at 1221 (emphasis added).       Clearly, not only was this portion of our

decision dicta, but our rationale was premised on the fact that, after a

hearing, a final PFA order had been entered, finding that Charnik had

committed the alleged abuse. The same is not true in Appellant’s four PFA

cases.   Accordingly, contrary to the trial court’s conclusion, Charnik does

not support the denial of Appellant’s expungement requests.

      For all of these reasons, we reverse the trial court’s orders denying

Appellant’s petitions for expungement filed in each of his four underlying PFA

cases. We remand this case to the trial court to enter an order expunging

the dockets related to the PFA petitions filed in each of Appellant’s four

cases.




                                     - 10 -
J-A27008-17



     Order in cases 2007-4767, 2008-9343, 2010-1074, and 2007-8374

reversed. Cases remanded with instructions. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2018




                                   - 11 -
