           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                   :
                                               :
                v.                             :      No. 134 C.D. 2016
                                               :      Submitted: August 19, 2016
Seth Steinman,                                 :
                              Appellant

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED:        October 18, 2016

                Seth Steinman (Steinman), representing himself, appeals from an
order of the Court of Common Pleas of Philadelphia County (trial court)1 affirming
the denial of his petition to expunge a charge on his criminal record.2 Citing
Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014), the trial court reasoned
Steinman, a convicted rapist and inmate at a state correctional institution, had no
immediate right to petition for expungement of his arrest in 1982 for an alleged
violation of a local ordinance. Steinman contends that Wallace is distinguishable
from the present case and that the trial court abused its discretion in dismissing his
petition. Steinman also asserts the trial court’s order runs afoul of the double




       1
           The Honorable Michael E. Erdos presided.

       2
         By order dated August 12, 2016, this Court precluded the Commonwealth, as appellee,
from filing a brief in this matter. The Court based its order on the Commonwealth’s failure to
comply with a previous order requiring that it file a brief within 14 days.
jeopardy provisions of the United States and Pennsylvania constitutions. Upon
review, we affirm.


                                    Background
             In May 2005, a Philadelphia common pleas court convicted Steinman
of rape, sexual assault and simple assault and sentenced him to a minimum 10-year
prison sentence. He is currently incarcerated at a state correctional facility.


             In February 2015, while incarcerated, Steinman filed a petition to
expunge a criminal charge from his record. Specifically, Steinman sought to
expunge reference to a 1982 arrest for alleged violation of a Philadelphia criminal
ordinance. Steinman alleged a court dismissed the charge in August 1984. In
April 2015, the trial court entered an order denying Steinman’s petition for
expungement.


             Steinman appealed the denial of his petition. In an opinion in support
of its order, the trial court acknowledged that the Pennsylvania Supreme Court
considers the right to petition for expungement of an individual’s criminal records
to be an adjunct of due process. Carlacci v. Mazaleski, 798 A.2d 186 (Pa. 2002).
However, the trial court also noted, a prison inmate does not enjoy the same level
of constitutional protections afforded to free citizens. Payne v. Dep’t of Corr., 871
A.2d 795 (Pa. 2005). Imprisonment carries with it the loss of many significant
rights in order to accommodate institutional needs, including internal security. Id.




                                           2
             The trial court also recognized the Supreme Court recently held that
due process does not guarantee a prison inmate the right to petition for
expungement. Wallace. The Court reached this conclusion after applying the
balancing test established by the U.S. Supreme Court in Mathews v. Eldridge, 424
U.S. 319 (1976), for determining whether state action violated constitutional due
process guarantees. On one hand, a prisoner has a protected private interest in
preserving his reputation. However, the risk of depriving a prisoner of this interest
by not granting him an immediate right to petition for expungement would be
minimal because nothing would prevent him from refiling his petition after his
release. Wallace. In addition, a prisoner has other avenues available to him while
incarcerated to restore his reputation before reentering society, such as education
programs, community reentry programs and release preparation programs. Id.


             The Wallace Court further recognized the government had well-
founded interests in denying expungement while a person is incarcerated, including
the availability of a complete criminal record for purposes of determining
misconduct penalization and parole eligibility. Financial and security interests in
transporting inmates to expungement proceedings must also be considered. Id.


             Summarizing, the trial court believed it correctly denied Steinman’s
petition for expungement because he is currently serving a state prison sentence for




                                         3
rape. Under these circumstances, due process affords Steinman no immediate right
to petition for expungement. Wallace. Steinman appeals.3


                                         Discussion
              Steinman contends Wallace is distinguishable from the present case
and therefore the trial court abused its discretion in denying his petition for
expungement.       Should the trial court’s order be permitted to stand, Steinman
asserts his record will contain fraudulent information which could be considered by
the Pennsylvania Board of Probation and Parole (Parole Board) in making a parole
decision. As such, Steinman could be punished for matters in which he was
acquitted or the charges dropped. Therefore, Steinman argues the constitutional
magnitude of the denial of his expungement request extends past due process and
into the realm of double jeopardy.           To that end, Steinman acknowledges the
drafters of the U.S. Constitution may have associated double jeopardy strictly with
court proceedings. Nonetheless, Steinman argues, given the vast power of the
Parole Board today, double jeopardy must attach “past the front door of any
courtroom.” Appellant’s Br. at 7.


              The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution provides in part: “nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb ….” U.S. C ONST. amend V.
Similarly, Article I, Section 10 of the Pennsylvania Constitution provides in part:


       3
        The decision to grant or deny a request for expungement of a criminal record lies within
the sound discretion of the trial judge. Commonwealth v. Waughtel, 999 A.2d 623 (Pa. Super.
2010). Accordingly, we review the trial court’s order for an abuse of discretion. Id.



                                               4
“No person shall, for the same offense, be twice put in jeopardy of life or limb ….”
PA. CONST. art. I, §10.


             In Rivenbark v. Pennsylvania Board of Probation and Parole, 501
A.2d 1110 (Pa. 1985), a parolee argued that the imposition of separate periods of
recommitment based upon the same act violated the Double Jeopardy Clause.
There, the Supreme Court noted, the prohibition of double jeopardy consists of
three distinct constitutional protections. It protects against a second prosecution
for the same offense after acquittal. It protects against a second prosecution for the
same offense after conviction. It also protects against multiple punishments for the
same offense. Id.


             The Rivenbark Court reasoned that the first two protections were
inapplicable because a parole revocation hearing is not a criminal proceeding. See
Morrissey v. Brewer, 408 U.S. 471 (1972). Rather, the granting and rescinding of
parole are purely administrative functions. Rivenbark. Parole is a penological
measure for the disciplinary treatment of prisoners deemed capable of
rehabilitation outside of prison. Id. Further, in a parole revocation proceeding, the
Board does not convict a parolee of a crime. Id. It simply determines whether the
parolee violated the terms and conditions of his parole, thus demonstrating himself
unfit for that method of correctional rehabilitation. Id.


             Moreover, a recommitment is not a second punishment for the
original offense and does not affect the original judicially imposed sentence. Id.
Rather, recommitment constitutes an administrative decision that a parolee should



                                          5
be returned to prison to serve all or part of the unexpired term of his original
sentence. Id. Therefore, the concept of double jeopardy is inapplicable to parole
revocation and recommitment proceedings. Santo v. Pa. Bd. of Prob. & Parole,
568 A.2d 296 (Pa. Cmwlth. 1990) (citing Rivenbark).


            Nevertheless, Steinman also contends an accurate criminal record
should be of the utmost importance to both the Commonwealth and a criminal
defendant or an incarcerated inmate. Because an inmate could be further penalized
based on his criminal record, the need for an accurate, rather than a fraudulent
criminal record, must be a paramount concern for all parties. Therefore, Steinman
asserts he should be entitled to the expungement of criminal charges of which he
was acquitted regardless of whether he remains incarcerated. See Commonwealth
v. D.M., 695 A.2d 770 (Pa. 1997) (in cases of acquittal, a defendant is
automatically entitled to expungement of his arrest record); Commonwealth v.
Armstrong, 434 A.2d 1205 (Pa. 1981) (person who successfully completed an
accelerated disposition program is entitled to expungement of record);
Commonwealth v. Rodland, 871 A.2d 216 (Pa. Super. 2005) (Commonwealth may
avoid expungement in cases of partial acquittal only when it demonstrates to the
trial court that expungement is impractical or impossible under the circumstances).


            In Wallace, the Superior Court initially concluded that some of the
appellee’s non-conviction arrest records may be eligible for expungement. The
appellee, an inmate incarcerated in a federal prison, had a vast criminal history
including both state and federal convictions. The Superior Court remanded the
case for a clarification of which charges were subject to expungement.         The



                                         6
Superior Court also directed the trial court to apply the balancing test set forth in
Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981)4 to determine whether justice
required expungement as to those charges.


               On appeal, the Supreme Court reversed.                   The Wallace Court
ultimately determined an inmate does not have a due process right to petition for
expungement while incarcerated. In reaching this determination, the Court applied
the three-factor test5 in Mathews for determining whether state action violates the
due process guarantees of the Fourteenth Amendment.


               The Supreme Court’s rationale in Wallace is controlling in the present
case. Steinman is currently serving a state prison sentence in a state correctional
institution for rape. Although Steinman has a protected interest in his reputation,
he may file a petition for expungement upon his release. In addition, Steinman’s

       4
          In Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981), the Supreme Court noted the
decision to grant or deny expungement fell within the discretion of the trial court, which must
balance the individual’s right to be free from the harm flowing from the maintenance of the
arrest record with the Commonwealth’s interest in preserving such records. The factors to be
considered were: (1) the strength of the Commonwealth’s case against the individual; (2) the
Commonwealth’s reasons for wanting to retain the records; (3) the individual’s age, criminal
record and employment history; (4) the length of time between the individual’s arrest and his
petition to expunge; and, (5) the adverse consequences the individual may endure if
expungement is denied. Id.

       5
          In Mathews v. Eldridge, 424 U.S. 319 (1976), the U.S. Supreme Court resolved, when
determining whether state action violates the due process guarantees of the Fourteenth
Amendment, the following factors must be considered: (1) the private interest that will be
affected by the state action; (2) the risk of erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional procedural safeguards; and, (3) the
government’s interest, including the function involved and the fiscal and administrative burdens
that additional procedural safeguards would necessitate.



                                                7
complete criminal record, including arrests on charges that did not result in
convictions, may be relevant should he engage in criminal behavior while in prison
or become eligible for release on parole. Id. Also, the financial and security costs
of transporting Steinman to the trial court cannot be overlooked.


             For the above reasons, we discern no abuse of discretion by the trial
court in denying Steinman’s petition for expungement. Accordingly, we affirm.




                                       ROBERT SIMPSON, Judge




                                         8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania         :
                                     :
           v.                        :   No. 134 C.D. 2016
                                     :
Seth Steinman,                       :
                       Appellant



                                   ORDER

           AND NOW, this 18th day of October, 2016, for the reasons stated in
the foregoing opinion, the order of the Court of Common Pleas of Philadelphia
County is AFFIRMED.




                                    ROBERT SIMPSON, Judge
