J-S73030-14



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
      Appellee

                    v.

LORI DENISE HEFFNER

      Appellant                                      No. 958 MDA 2014


                Appeal from the Order Entered May 8, 2014
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0001723-2011


BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 07, 2015

      Lori Denise Heffner appeals from the May 8, 2014 order denying her

petition to expunge. We affirm.

      Due to events that occurred on March 23, 2011, Appellant was

charged with two counts of felony retail theft, and one count each of

receiving stolen property, false identification to law enforcement, and

unsworn falsification to authorities.   These charges were based upon the

following allegations contained in the affidavit of probable cause attached to

the criminal complaint.

      Loss prevention officer Jerome Mohler of Redner’s Warehouse Market

(“Redner’s”), which was located on 1149 Berkshire Boulevard, Wyomissing,

called police to the store.       Wyomissing Police Officer Scott Schaeffer
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responded, and Mr. Mohler reported the following.           He had observed

Appellant enter the store, place a box of Glad trash bags and two bottles of

Burt’s Bee wash in her purse, and enter the public restroom. After spending

twenty minutes there, Appellant exited the bathroom, walked past the cash

registers, and exited the store without paying for the merchandise in her

purse. Mr. Mohler and another employee apprehended Appellant and took

her to the office, where they discovered the three stolen items in her

handbag with the UPC stickers removed.

      When Officer Schaeffer arrived at the market, Appellant refused to

provide her name and address but did offer a description of the vehicle that

she drove to Redner’s.     Officer Schaeffer found the vehicle in the store

parking lot and discovered that it was owned by Michael Heffner. Using Mr.

Heffner’s address, Officer Schaeffer learned that a woman named Lori D.

Heffner resided with him. The driver’s license photograph of Lori D. Heffner

matched Appellant, who denied that she was Lori D. Heffner and stated that

her name was Lori Maxton. Appellant also gave a birthdate different from

that listed for Lori D. Heffner. Appellant had a criminal record for “two prior

convictions (1999 and 2005) for retail theft in Berks County.”     Affidavit of

Probable Cause, 4/27/11, at 1.

      After the present criminal charges were filed, there were various status

conferences.    Trial was scheduled on two separate occasions but the

scheduling orders were vacated. A bench warrant was issued for Appellant’s


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arrest on January 24, 2013, after she failed to appear at a January 22, 2013

status hearing. The warrant was lifted, and on February 7, 2013, Appellant,

not the Commonwealth, applied for a competency hearing.              Although the

motion for declaration of competency indicated that Appellant expected to

regain competency in the near future, the court’s finding after a hearing on

that motion was to the contrary.

        Specifically, the trial court concluded both that Appellant was

incompetent and that her condition would not improve in the foreseeable

future.     The hearing and exhibits introduced at that proceeding are not

contained in the record since the trial court sealed the record of the hearing

as well as reports from a doctor. Hence, we are not able to ascertain the

reasons for the trial court’s ruling. Based upon the trial court’s ruling, the

inference is that the reports submitted by Appellant indicated that her

mental competency would not be regained in the foreseeable future.              The

court dismissed the charges under 50 Pa.C.S. § 7403(d),1 which provides, in




1
    That statute states in its entirety:

            Whenever a person who has been charged with a crime has
        been determined to be incompetent to proceed, he shall not for
        that reason alone be denied pretrial release. Nor shall he in any
        event be detained on the criminal charge longer than the
        reasonable period of time necessary to determine whether there
        is a substantial probability that he will attain that capacity in the
        foreseeable future. If the court determines there is no such
        probability, it shall discharge the person. Otherwise, he may
        continue to be criminally detained so long as such probability


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pertinent part, that if a person charged criminally is adjudicated incompetent

and if the court ascertains that there is no “substantial probability that [the

defendant] will attain [his mental] capacity in the foreseeable future,” then

the court “shall discharge the person.”

      Appellant filed her expungement motion on February 25, 2014, only

one year after she asked to be declared incompetent and obtained dismissal

of the aforementioned criminal charges based upon a finding that there was

no substantial probability that she would regain her capacity in the

foreseeable future.     In her petition, Appellant did not outline any

employment history nor did she state whether, and to what extent,

treatment had improved her mental health.       The petition contains a bare

allegation that retention of the record herein would “adversely affect future

employment prospects and will prejudice [Appellant’s] standing in the

community.” Petition to Expunge Criminal Record, 2/25/14, at 1. Appellant

did not outline that she had applied for and been rejected for any specific job

due to the record in this matter, and failed to provide proof of her criminal

history.

      The Commonwealth objected to the grant of the petition to expunge

and noted that Appellant failed to attach a current copy of her criminal


      exists but in no event longer than the period of time specified in
      subsection (f).

50 P.S. § 7403(d).



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record, as required by the rules of criminal procedure.        It further outlined

that its proof against Appellant had been exceptionally strong and that

Appellant’s claimed harm was illusory due to the fact that she already had

convictions for retail theft and fleeing and eluding police.

      The trial court issued an order requiring Appellant to file a copy of her

criminal record. Appellant complied with that directive. She pled guilty to

retail theft on June 9, 1999, and on March 30, 2002, she pled guilty to

fleeing or attempting to elude a police officer, recklessly endangering

another person, and driving while her license was suspended or revoked.

      The trial court denied the expungement motion, and this appeal

followed. Appellant raises the following contentions: “1. Did the trial court

err in failing to hold a hearing on defendant's Petition for Expungement?”

and “2. Did the trial court err in denying the Expungement Petition?”

Appellant’s brief at (unnumbered page) 4.

      Appellant first contests the fact that she did not receive a hearing and

notes that Pennsylvania law mandates that one be held on a petition to

expunge.   Herein, the trial court scheduled a hearing for April 15, 2014, and

Appellant’s counsel opened by stating that he was not served with notice of

the hearing date. The trial court ascertained that Appellant rather than her

counsel received the notice in question. When asked what he wanted to do,

counsel did not ask that the hearing be rescheduled nor did he indicate that

he had evidence that he wanted to present.        Instead, counsel     responded


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that he wanted the Commonwealth to review his brief. The court then asked

if there were any expungement cases dealing specifically with dismissal of

charges based upon a finding of incompetency, and counsel responded that

he could not find any case law in that respect. The proceedings adjourned.

      We conclude that, under the circumstances, Appellant waived her right

to a hearing.     A hearing was duly scheduled on Appellant’s expungement

request.     At the designated time and place, Appellant’s counsel appeared.

When asked specifically what he wanted to do about the fact that Appellant,

rather than her counsel, received notice of the hearing, counsel did not ask

for a continuance nor did he suggest that there was evidence to present in

support of the expungement petition beyond that already outlined therein.

Likewise, on appeal, Appellant does not delineate any proof she would

present at a hearing if we remanded for one.      Appellant’s failure to request

another hearing on April 15, 2014, is fatal to her ability to contest the failure

to conduct a hearing now on appeal. Pa.R.A.P. 302(a) (“Issues not raised in

the lower court are waived and cannot be raised for the first time on

appeal.”).

      Appellant next avers that the trial court erred in denying the

expungement petition. Our Supreme Court recently reinforced the principles

applicable to a defendant’s request for expungement in Commonwealth v.

Wallace, 97 A.3d 310 (Pa. 2014).        First, the Court reinforced that, “The

decision to grant or deny a petition for expungement lies in the sound


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discretion of the trial court, which must balance ‘the individual's right to be

free from harm attendant to maintenance of the arrest record against the

Commonwealth's interest in preserving such records.’” Id. at 317 (quoting

Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981)).

      Additionally, the right to expungement, which can be a component of

due process, differs according to the disposition of the charges in question.

            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. 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.
      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 the maintenance of the arrest record
      against the Commonwealth's interest in preserving such records.

Wallace, supra at 317-18 (quoting Commonwealth v. Moto, 23 A.3d

989, 993 (2011)). Five factors are weighed where neither an acquittal nor a

conviction is at issue in the matter:

      (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; (5) and the
      specific adverse consequences the petitioner may endure should
      expunction be denied.




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Wallace, supra at 318 (quoting Wexler, supra at 879). This list is not

exhaustive and the facts of each particular case must be carefully weighed.

Moto, supra.

     The burden of proof in the expungement setting is dependent upon the

nature of the Commonwealth’s proof as to the crimes. If the Commonwealth

cannot carry its burden of proof or admitted prior to trial that it could not

establish the crimes beyond a reasonable doubt, then the Commonwealth

bears the burden of justifying why the arrest record should not be expunged.

Moto, supra; Wexler, supra.

     The importance of our deferential standard of review cannot be

overstated. In Wallace, supra, the defendant, who was incarcerated, had a

significant criminal history spanning many years. The defendant sought the

removal of records of multiple charges that did not result in conviction. The

defendant’s request for expungement was denied without a hearing.         The

trial court concluded that the Commonwealth’s interest in retaining the

records   outweighed   the   adverse    consequences   to   the   defendant   if

expungement was granted. The Commonwealth reported that it sought to

retain all the records as a relevant consideration should the then-

incarcerated defendant be paroled and thereafter violate that parole.

Defendant claimed the retention of his arrest records would stigmatize him.

     The trial court rejected defendant’s position based on the existence of

a record of many charges that resulted in convictions. It did not consider


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any other factor in its decision denying expungement. This Court reversed

and concluded that the defendant was entitled to a hearing and separate

consideration as to whether each charge not leading to conviction should be

expunged.      We opined that some of the charges might be eligible for

expungement. Our Supreme Court disagreed and reinstated the trial court

order, which rested, as noted, on the defendant’s inability to prove harm

from retention of the arrest records since he already had criminal

convictions.

       In another recent decision, Commonwealth v. Moto, 23 A.2d 989

(Pa. 2011), the Supreme Court also reversed one of our decisions granting

expungement in face of the trial court’s denial of that relief.    Therein, in

1987, the defendant was convicted of rape, involuntary deviate sexual

intercourse, robbery, and conspiracy after the victim of those crimes

unequivocally and positively identified him as one of two men who attacked

her.   The victim also testified that, during the defendant’s trial, the other

perpetrator stopped her and threatened to kill her and her children if she

testified against the defendant.

       After he was convicted, the defendant obtained a new trial in 1995

based upon DNA evidence from the victim’s underwear, which contained

sperm from three men who were not the defendant.          The Commonwealth

was not able to proceed to a second trial since it could not locate the victim,

who fled the area due to continued threats. The Commonwealth withdrew


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the charges in 1996. The defendant then asked for expungement in 2007.

During the proceedings, the Commonwealth produced witnesses establishing

that the evidence that resulted in the grant of a new trial did not necessarily

exonerate the defendant. Specifically, DNA of sperm can remain on clothing

for years, even after the clothing is laundered, and the defendant may not

have ejaculated during the event.      The Commonwealth reported that its

decision not to retry the defendant was due solely to its inability to locate

the victim.   The Commonwealth sought to retain the criminal record since

Appellant had been convicted and based upon the inclusive nature of the

DNA proof.

      In declining to award expungement, the trial court relied upon the

strength of the Commonwealth’s case, that fact that the defendant was

convicted before being granted a new trial, and the public’s interest in

retaining the arrest record of a person who was convicted of serious crimes.

We reversed the trial court based upon a conclusion that the Commonwealth

had not met its burden of proof and that expungement was denied based

upon consideration of only one factor, which was the strength of the

Commonwealth’s case during trial.

      Our Supreme Court, in turn, reversed this Court.           As it had in

Wallace, our High Court admonished us that the decision as to the grant or

denial of an expungement request “rests with the sound discretion of the

trial court, and we review that court's decision for abuse of discretion.”


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Moto, supra at 993. The Moto Court rejected our conclusion that the trial

court did not consider all of the Wexler factors. It noted that the trial court

indicated that it had performed the Wexler analysis and ruled that we were

required to defer to that representation, even though the trial court did not

specifically address each factor outlined in Wexler.                 Our Supreme Court

continued that the trial court was permitted to deny expungement by placing

great weight on one factor, which, in that case, was the strength of the

Commonwealth’s case against the defendant. The Moto Court also observed

that the defendant had a history of arrests. Since the trial court applied the

proper standard to the facts of the case, it did not abuse its decision, and

this Court erred in reversing it. Moto, supra.

      In this case, it is clear that the trial court did not abuse its discretion in

concluding that expungement was not warranted. Indeed, this case is legally

indistinguishable from Moto since Appellant had a history of criminal

convictions     similar   to   those   at    issue   in   this    case   and   since   the

Commonwealth had compelling evidence that Appellant committed the

crimes in question.

      The trial court in this matter did initially indicate that it did not believe

that the Wexler factors were implicated in this case. However, it continued

that “[e]ven if Wexler is applicable, expungement would still not be

appropriate.”     Trial Court Opinion, 7/7/14, at 8.             The court outlined that,

based upon its review of the file, “it appeared that the Commonwealth had a


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strong case against the Petitioner.” Id. The court also considered the fact

that Appellant already had a record and opined that the “existing criminal

record” demonstrated that “retention of the records at issue is not an

onerous adverse consequence for the Petitioner.” Id. at 9.

     The court additionally found a public interest in retaining the record.

Specifically, “In any dealings law enforcement and prospective employers

might have with the Petitioner, they need to be aware of the Petitioner’s

potential for dishonesty, whether the intentional products of cognitive

thought or the by-product of mental infirmity, as well as her potential for

lack of comprehension of her actions and their consequences.”      Id. at 9.

The court further noted that Appellant made no attempt to cite “even one

specific instance of a prospective employer denying her employment

because of the currently contested public record.” Id.

     When a defendant is absolved from criminal responsibility due to his

mental state, the disposition of the charges is not viewed as an acquittal.

Commonwealth v. B.C., 936 A.2d 1070 (Pa.Super. 2007) (defendant found

not guilty by reasons of insanity). Rather, the verdict is a finding that the

defendant committed the act but cannot be held legally accountable due to

his mental condition. Id.    In B.C., we upheld a trial court’s refusal to

expunge the record, even though the defendant specifically outlined that he

had been unable to secure a job due to his arrest record. We considered the

fact that the defendant was not found innocent of committing the acts in


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question as well as the lack of evidence that the defendant’s mental

condition had improved.    See also Commonwealth v. V.G., 9 A.3d 222

(Pa.Super. 2010) (affirming denial of expungement of defendant who pled

nolo contendere but mentally ill).

      Appellant herein obtained dismissal of these charges based on her

inability to communicate with her lawyer in defending this case rather than

based upon innocence.      Indeed, the Commonwealth’s case was strong.

There was an eyewitness to Appellant’s theft of three items from a retail

establishment.   Appellant gave a false name and date of birth to a police

officer.

      Since the Commonwealth did establish that it could have obtained a

conviction herein founded upon the evidence, it satisfied its burden of proof

and did not need to articulate any justification for its retention of the

records.   In this respect, we note that Appellant asserts herein that the

Commonwealth had a “heavy burden of producing compelling evidence that

the arrest records should be retained.”       Appellant’s brief at (unnumbered

page) 8. In this respect, Appellant relies upon Commonwealth v. Hanna,

964 A.2d 923 (Pa.Super. 2009). However, Hanna was merely articulating

the rule of law announced in Wexler. The full Hanna quote is as follows:

           In Wexler, [supra,] the Commonwealth nolle prossed
      charges against a defendant based on the prosecutor's
      assessment that it could not prove the charges beyond a
      reasonable doubt. The Court held that under those
      circumstances, the defendant was entitled to an expungement


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      hearing where the Commonwealth bore a heavy burden of
      producing compelling evidence that the arrest records should be
      retained, using a multi-factor test.

Hanna, supra at 925-26 (emphasis added).

      Thus, Appellant’s recitation of the Commonwealth’s burden of proof in

this case is incorrect. The prosecutor never made an assessment that these

charges could not be proven, and they were decidedly not nolle prossed. To

the contrary, the Commonwealth satisfied its burden of proving that it could

have obtained a conviction.      Thus, Appellant errs in suggesting that the

Commonwealth had to justify its decision to oppose expungement.             In

addition, the trial court articulated a valid public interest in maintenance of

these records.    The public should be aware of Appellant’s history of an

inability to control herself to avoid dishonest activity.

      Moreover, Appellant’s asserted interest in expungement is that this

criminal record will adversely affect her ability to gain employment and her

community standing.       As noted by the Commonwealth, this concern is

illusory given her prior convictions of retail theft and fleeing or eluding

police, which are similar or identical to the charges at issue in this case.

Wallace, supra.

      Appellant, who was in her mid-50s, never proffered a single instance

where she applied for and was denied employment based upon this arrest

record and did not outline any past employment history.       Only two years

elapsed between the crimes and the expungement request.                Finally,


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Appellant produced no evidence that she had improved her mental condition

so that she would no longer commit these types of criminal actions due to

her inability to comprehend that they were wrong. This omission is a critical

consideration in this matter under B.C., supra.

     There is not a single factor outlined in Wexler that militates in favor of

expungement in this case, and the trial court did not abuse its discretion.

In her argument maintaining that expungement is mandated, Appellant

would have us ignore the Wexler factors and singularly focus on the fact

that the record herein contains a finding that she was incompetent.

Appellant maintains:

           The public web docket sheets available at the Unified
     Judicial System's website . . . state that defendant was "declared
     incompetent" and that she was incompetent to stand trial. It is
     also noted that a hearing was held under the mental health
     procedures act. See attached appendix C with highlighted
     portions.

           The public docket sheets repeatedly note that Appellant
     was declared incompetent, incompetent to stand trial. These
     docket sheets are available for any member of the public to read
     with a simple search of Appellant's name. This is certainly
     prejudicial to appellant's standing in the community.

           ....

           The first reason for expungement is the very public and
     open records that (available to anyone with internet access) that
     defendant was "declared incompetent" and was subject to
     hearings under the mental health act. Pennsylvania has a strong
     privacy and confidentiality interest concerning the treatment of
     the mentally ill. See 50 P.S. [§] 7111 and 42 [Pa.C.S.A. §] 5944.




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Appellant’s brief at (unnumbered pages) 7-8, 9. See also id. at 9 (“Clearly

the Wexler factors are not absolute[;] the Court must consider the harm of

having defendant’s mental health matters available to the general public.”);

Id. (“Appellant submits it is almost impossible to get a job with public

records stating she was ‘declared incompetent.’ Having any member of the

public able to read official court records describing you as incompetent is

embarrassing and hurtful.”); Id at 10 (“The adverse consequences are

clear[;] defendant’s mental health issues have been made part of the public

record and this will continue to stigmatize defendant if this expungement is

not granted.”); Id.       (“Having a criminal record is one thing.          Having a

permanent public record of mental illness and being ‘declared incompetent’

is another.”)

      Simply put, we cannot override the trial court’s discretion, ignore all

the Wexler factors, and grant expungement based solely upon an alleged

social stigma attached to Appellant’s incompetency finding. Under Wallace

and Moto, we are prohibited from re-weighing the factors utilized in an

expungement decision.        Of great significance is the following.          It was

Appellant herself who sought the incompetency determination. It was only

as a result of this ruling that Appellant obtained dismissal of these charges in

the   first   instance.    Thus,   it   was   Appellant’s   decision   to   place   an

incompetency determination on the record in this matter. Absent Appellant’s




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own request to be declared incompetent, she faced overwhelming evidence

of guilt and a conviction.

      Our decision to reject this particular argument also is premised upon

the fact that Appellant failed to proffer that her mental condition has

improved to any extent so that she is unlikely to commit these types of

crimes in the future.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/7/2015




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