J-S72015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    HEATHER CLIFFORD                           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVE MEHALSHICK                            :
                                               :
                       Appellant               :   No. 1933 MDA 2017

              Appeal from the Order Entered November 15, 2017
    In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                               8418-c OF 2006


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                             FILED FEBRUARY 21, 2019

        Dave Mehalshick appeals from the order denying his motion to expunge

his Protection From Abuse Act (“PFAA”)1 record. We affirm.

        On August 8, 2006, Heather Clifford filed a petition for protection from

abuse (“PFA”) against Appellant, her ex-boyfriend, and was granted a

temporary PFA order. At a hearing conducted on August 15, 2006,2 the parties

agreed to the entry of a final PFA order to be effective for one year. Pursuant

to that order, Appellant agreed, without admission of wrongdoing, to be bound

to the following terms:

             [Appellant] is directed to refrain from causing or attempting
        to cause physical injury to [Ms. Clifford,] from placing [Ms.
____________________________________________


1   23 Pa.C.S. § 6101, et seq.

2 Pursuant to the PFAA, once a petition is filed, a hearing shall be held within
ten days. P.E.S. v. K.L., 720 A.2d 487, 489 (Pa.Super. 1998).
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      Clifford] in fear of bodily injury[,] from harassing and/or stalking
      [Ms. Clifford];

             [Appellant] is prohibited from having personal contact,
      telephone contact[,] or any other contact with [Ms. Clifford,] and
      from entering the place of employment, business or school of [Ms.
      Clifford].

PFA Order, 8/15/06, at 1. The final PFA order expired on August 15, 2007.

      In May of 2007, while the final PFA order was still in effect, Appellant

was arrested for violating its terms, and charged with indirect criminal

contempt (“ICC”) for violation of that order.          Pursuant to the affidavit

supporting the ICC complaint, Appellant continued to attempt to make contact

with Ms. Clifford through repeated phone calls, even after she had changed

her cell phone number four times. Appellant also attempted to make contact

with Ms. Clifford at her friend’s residence. Following a hearing, Appellant was

found guilty of ICC by violating the final PFA order, and was sentenced to

ninety days of probation, ordered to attend anger management classes, and

ordered to abide by probation conditions.

      In August of 2017, Appellant filed a motion to expunge the above PFAA

record. Following a hearing on October 10, 2017, the trial court denied his

motion. An order to that effect was entered on November 14, 2017. Appellant

filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.

      He raises the following issues for our review:

      1. Whether the lower court committed a manifest error of law or
         otherwise abused its discretion in failing to apply the holdings

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           of the Pennsylvania Supreme Court as set forth in Carlacci v.
           Mazaleski, . . . 798 A.2d 186 ([Pa.Super.] 2002) to Appellant’s
           motion for expungement of docket record.

        2. Whether the lower court committed a manifest error of law or
           otherwise abused its discretion in applying the holdings of the
           Pennsylvania Superior Court as set forth in Commonwealth
           v. Charnik, . . . 921 A.2d 1214 [(Pa.Super.] 2007) to
           Appellant’s motion for expungement of docket record.

        3. Whether the lower court committed a manifest error of law or
           otherwise abused its discretion in summarily denying
           Appellant’s motion for expungement of docket record without
           first affording him an opportunity to introduce evidence,
           provide testimony or create any record whatsoever in support
           of said motion.

        4. Whether the lower court committed a manifest error of law or
           otherwise abused its discretion in refusing to apply the
           “Wexler” balancing test, as set forth in Commonwealth v.
           Wexler, 431 A.2d 877 (Pa. 1981)[,] and made applicable to
           the expungement of protection from abuse orders in Carlacci,
           to Appellant’s motion for expungement of docket record.

Brief for Appellant at 6 (unnecessary capitalization omitted).3

        Our standard of review for appeals from expungement determinations

is well settled:

        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.




____________________________________________


3   As Appellant’s issues are interrelated, we will address them together.




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Commonwealth v. Rodland, 871 A.2d 216, 218 (Pa.Super. 2005) (citing

Commonwealth v. Lutz, 788 A.2d 993, 996 (Pa.Super. 2001)).4

       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, 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).   Accordingly,   “[i]n   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.” Carlacci, supra at 188.5

       In Wexler, 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 attendant to maintenance of


____________________________________________


4In claiming that the trial court “committed a manifest error of law,” Appellant
misapprehends our standard of review. The trial court’s decision to grant or
deny expungement is an act of judicial discretion. See Commonwealth v.
Lutz, 788 A.2d 993, 996 (Pa.Super. 2001). Accordingly, we review the
decision of the trial court for an abuse of discretion, not an error of law. Id.

5 In Carlacci, Carlacci filed a PFAA petition against Mazaleski. The trial court
entered a temporary PFA order, and scheduled a hearing to determine whether
a final PFA order was warranted. The parties agreed to continue the hearing,
and ultimately executed a stipulation that the temporary PFA order should be
declared null and void, ab initio. The stipulation was adopted as an order of
court. Mazaleski thereafter filed a motion to expunge the PFAA record.

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the arrest record against the Commonwealth’s interest in preserving such

records.” Wexler, supra at 879. The Wexler Court determined that, in non-

conviction situations where the Commonwealth is unable to carry its burden

of proof or decides to withdraw or nolle prosequi the charges, the burden shifts

to the Commonwealth to present compelling evidence to justify retention of

such a record. Id. at 880; see also Lutz, supra at 999. To aid courts in

applying the balancing test for expungement, the Wexler Court adopted the

following non-exhaustive list of factors that the court should consider:

              [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).6 The mere assertion of a general

interest in maintaining accurate records of those accused of crime is not

compelling.     Id. at 881.     Moreover, when a petitioner has been tried and

acquitted, the Wexler balancing test is inappropriate, and the petitioner is




____________________________________________


6 In Wexler, the appellant-parents were arrested and each charged with
corruption of a minor and criminal conspiracy. Several months later, the
Commonwealth filed a petition for nolle prosequi of the charges against them,
and the petition was granted.




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entitled to expunction of the record as a matter of law. See Commonwealth

v. D.M., 695 A.2d 770, 772 (Pa. 1997).7

       The right to petition for expungement has been extended to the PFAA in

limited circumstances where a petitioner seeks to protect his or her reputation.

See P.E.S. v. K.L., 720 A.2d 487 (Pa.Super. 1998).8 Generally, in ruling on

a petition to expunge a PFAA record, the trial court must utilize the Wexler

balancing test.9 P.E.S., supra at 492. However, in certain circumstances, a

Wexler balancing test is unnecessary, depending on the nature and extent of

the PFAA proceedings. Carlacci, supra at 191 (“[T]he Wexler balancing is

unnecessary when: (1) a PFAA petition filed against a PFAA defendant has

been dismissed by court order, as in P.E.S.; or (2) the PFAA proceedings never

evolve beyond the temporary order stage.”); see also Commonwealth v.




____________________________________________


7In D.M., the petitioner was arrested, charged, and tried for indecent assault
and corrupting the morals of a minor, but was acquitted in a non-jury trial.
Petitioner subsequently filed a petition to expunge his record.

8 In P.E.S., a request for a temporary PFA order against K.L. was denied. A
hearing on the petition was scheduled to take place a few days later; however,
the parties failed to appear, and no further action was taken on the petition.
Nevetheless, a court record was created, and the case was designated as
“active” in the court computer system. K.L. sought expungement of the court
record.

9 In so ruling, the P.E.S. Court did not specifically cite Wexler; however, it
cited Commonwealth v. Butler, 672 A.2d 806, 808-09 (Pa.Super. 1996),
wherein this Court ruled that when faced with a request for expungement of
a criminal record, the court must conduct a Wexler balancing test.

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Charnik, 921 A.2d 1214, 1219 (Pa.Super. 2007).             As we explained in

Charnik,

      The expungement continuum 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 . . .
      D.M., P.E.S. and 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
      (such as Wexler), and to (c) conviction records, where there is
      no right of expungement except by statutory authorization in
      limited circumstances.

Id. at 1219 (emphasis in original).

      In Charnik, a PFAA petition was filed against Charnik.         Following a

hearing, the trial court granted the petition and entered a final PFA order.

Charnick twice violated the terms of the final PFA order, and was found guilty

of two counts of ICC.    He thereafter filed a petition to expunge the PFAA

record, including the ICC convictions, which the trial court denied. On appeal,

this Court drew a distinction between Charnik’s ICC convictions and his PFAA

record, noting:

      contempt proceedings are distinct from PFAA proceedings; PFAA
      proceedings are initiated in effort to stop perpetration of abuse
      and are civil in nature, while the indirect criminal contempt actions
      are criminal in nature and seek punishment for violation of a
      protective order.

Id. at 1217 (emphasis in original). The Court further explained distinction

between “conviction data” and “non-conviction data” for purposes of

expungement:

      The Pennsylvania legislature has strictly regulated expungement
      of records of convicted persons. Conviction records may be

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       expunged only where: 1) the subject of the information reaches
       the age of seventy and has been free from arrest or prosecution
       for ten years; or 2) where the individual has been dead for three
       years.

Id. (citing 18 Pa.C.S. § 9122(b)).10           Because Charnick did not meet the

statutory requirements for expungement of his ICC convictions under

§ 9122(b), we affirmed the trial court’s denial of his petition to expunge those

convictions. Id.

       As to the question of whether Charnik was entitled to expungement of

the remainder of the PFAA record, the Charnik Court found compelling that a

final PFA order had been entered in the case after a hearing. On this basis,

the Court ruled that Charnik was not entitled to a Wexler hearing or

expungement of the PFAA record, explaining as follows:

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 Pursuant to § 9122(b), criminal history record information may be expunged
10

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.

       (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. § 9122(b).

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      Charnik’s argument presumes a constitutional entitlement to seek
      expungement, as recognized in Carlacci. Carlacci and P.E.S.,
      however, were based on records that existed where the PFA
      process was not completed and therefore without the safeguards
      of due process. That is not the case here. Thus, in order to reach
      the Wexler issue, we must first determine whether the language
      of P.E.S. and Carlacci can be expanded to include the right to
      expungement of PFA records where a final PFA order has been
      entered following a determination that the allegations of abuse
      were proven by a preponderance of the evidence. Because we
      read our Supreme Court’s decision in Carlacci as expressly
      limiting the remedy of expungement of PFA records to those cases
      where records exist absent the safeguards of due process, that is,
      where no facts were brought forth to substantiate a finding of
      abuse and no final order was entered, Carlacci, 798 A.2d at 191,
      we decline to extend the language until the legislature or our
      Supreme Court directs.

Charnik, supra at 1220.

      While acknowledging that the particular circumstances of the case “did

not fall squarely within the statutory language or the case law, but rather lies

somewhere beyond . . . D.M., P.E.S. and Carlacci, and between non-

conviction and conviction records,” the Charnik Court reasoned that “the

record of a final PFA order is closer to a conviction record rather than a non-

conviction record” because “a final order was entered here only after facts

were brought forth proving the allegations of abuse by a fair preponderance

of the evidence, and Charnik has not appealed that determination.” Id. Given

its narrow reading of Carlacci, as well as the seriousness with which the

legislature views protection from domestic violence and the associated drain

on our judicial resources, the Charnik Court concluded that Charnik was not

entitled to seek expungement of his PFA record. Id.


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      Turning first to Appellant’s ICC conviction in the instant matter, we

observe that he does not reference § 9122(b) in his brief, nor present any

argument as to why his ICC conviction satisfies the criteria for expungement

set forth in § 9122(b). In its opinion, the trial court ruled that Appellant had

not met the requirements for expungement of his ICC conviction under

§ 9122(b). Trial Court Opinion, 6/29/18, at 9. As we discern no abuse of

discretion, we affirm the trial court’s order denying expungement as it relates

to the ICC conviction.

      Turning to the remainder of the PFAA record, Appellant contends that

he filed his motion to expunge his PFAA record in the hopes of protecting his

personal and professional reputation from the ongoing damage of having such

record publicly accessible.   He claims that the trial court refused him any

meaningful opportunity to present evidence in support of expungement of his

PFAA record. Appellant concedes that he is not entitled to expungement as a

matter of law, but claims that, pursuant to Carlacci, he was entitled to a full

hearing and a balancing of the Wexler factors to determine whether his

motion should have been granted.       Appellant further asserts that the trial

court abused its discretion by relying on Charnik, which he maintains is

inapplicable to this matter. Although Appellant acknowledges that a final PFA

order was entered against him, he claims that it “was not the subject of a

hearing, was not subject to findings of fact, was not subject to a determination

that the allegations had been proven by a fair preponderance of the evidence,


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and was, instead, the product of an agreement made without admission of

wrongdoing.”        Appellant’s brief at 14.    Under this reasoning, Appellant

maintains that his PFAA record is not “closer to a conviction record than a non-

conviction record,” such that the trial court’s reliance on Charnik was

inappropriate.

      We disagree with Appellant’s reasoning.         As noted by the Court in

Charnik, a Wexler hearing is reserved for those petitions for expungement

which are “based on records that existed where the PFA process was not

completed and therefore without the safeguards of due process.” Charnik,

supra at 1220 (emphasis added).         As explained by the trial court herein:

“[Appellant] was present, afforded his due process rights, and agreed to a

PFA. He signed the PFA order which further validates his presence and ability

to participate in the [PFAA] hearing.” Trial Court Opinion, 6/29/18, at 4.

      We have a narrow standard of review of the trial court’s decision herein.

See Rodland, supra. In the instant matter, the PFA process was completed,

and a final PFA order was entered, with Appellant’s consent. On this record,

we cannot conclude that the trial court abused its discretion in entering an

order denying expungement of the PFAA record. Hence, we are compelled to

affirm its order.




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     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2019




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