J-S19024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL L. HALEY

                            Appellant                No. 972 EDA 2015


                Appeal from the Order Entered February 24, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR—0223701-1985


BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED MAY 12, 2016

       Appellant, Michael L. Haley, pro se, appeals from the February 24,

2015 order denying his petition to expunge 1 his record of several prior

criminal charges. We affirm the order and deny Appellant’s application for

remand.

       Appellant pled guilty on November 21, 1985 to a single count of

robbery. In exchange for Appellant’s guilty plea, the Commonwealth moved

to nolle prosse the charges of theft by unlawful taking, receiving stolen

property, possession of an instrument of crime (“PIC”), and unlawful

possession of a firearm.

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1
   See Pa.R.Crim.P. 790(A), authorizing any person who satisfies the
conditions for expungement to file an expungement petition.
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        On February 25, 2005, a Lehigh County jury found Appellant guilty of

attempted murder, aggravated assault, recklessly endangering another

person, terroristic threats, theft, and unlawful use of a motor vehicle. The

trial court sentenced Appellant to an aggregate 25 to 50 years of

incarceration for those offenses.          This Court affirmed on September 15,

2006.

        Appellant filed the instant petition, titled a “Petition to Redact Criminal

Record,” on September 22, 2014.2 Appellant petitioned to expunge the nolle

prossed charges from the 1985 prosecution. We gather from Appellant’s pro

se brief that he believes the record of the nolle prossed 1985 charges

adversely affected his 2005 sentence.            We also gather that Appellant

believes his success in this action will provide grounds for challenging the

2005 sentence. The trial court conducted a hearing on February 25, 2015,

pursuant to Pa.R.Crim.P. 790(B). The trial court granted Appellant’s petition

as to all of the nolle prossed 1985 charges except unlawful possession of a

firearm.     In rendering its decision, the court considered “fairness to

Appellant and the need for the [Commonwealth] to preserve records of the



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2
   Appellant criticizes the trial court for applying the law of expungement to
his petition to “redact” his criminal record. Appellant fails to explain why he
believes expungement differs from redaction, and the cases he cites in his
brief address expungement.




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type of robbery committed by the Appellant[.]”                     Trial Court Opinion,

7/30/15, at 1.

       The right to seek expungement of charges stemming from an unlawful

or erroneous arrest is an “adjunct of due process.”                Commonwealth v.

Malone, 366 A.2d 584, 587 (Pa. Super. 1976).3

               The harm ancillary to an arrest record is obvious:
       Information denominated a record of arrest, if it becomes
       known, may subject an individual to serious difficulties. Even if
       no direct economic loss is involved, the injury to an individual’s
       reputation may be substantial. Economic losses themselves may
       be both direct and serious.         Opportunities for schooling,
       employment, or professional licenses may be restricted or
       nonexistent as a consequence of the mere fact of an arrest, even
       if followed by acquittal or complete exoneration of the charges
       involved.    An arrest record may be used by the police in
       determining whether subsequently to arrest the individual
       concerned, or whether to exercise their discretion to bring formal
       charges against an individual already arrested. Arrest records
       have been used in deciding whether to allow a defendant to
       present his story without impeachment by prior convictions, and
       as a basis for denying release prior to trial or an appeal; or they
       may be considered by a judge in determining the sentence to be
       given a convicted offender.

Id. at 587-88.

       “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   the   arrest   record   against   the

Commonwealth’s interest in preserving such records.” Commonwealth v.
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3
  Pennsylvania also provides a statutory right to expungement under certain
conditions. 18 Pa.C.S.A. § 9122. Appellant has not raised any argument
under § 9122.



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Wexler, 431 A.2d 877, 879 (Pa. 1981).             The balance between the

individual’s interest in expungement and the Commonwealth’s need to retain

the records rests within the discretion of the trial court. Commonwealth v.

Wallace, 97 A.3d 310, 314 (Pa. 2014). We review the trial court’s decision

for abuse of discretion. Commonwealth v. Waughtel, 999 A.2d 623, 625

(Pa. Super. 2010).        In determining whether to expunge a record, courts

should consider:

              [T]he 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.

Wexler, 431 A.2d at 879.4

       In Wallace, our Supreme Court held that the due process right to

seek expungement of non-conviction arrest records, described in Wexler

and Malone, does not extend to prison inmates. Wallace, 97 A.3d at 320.5

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4
   We observe that the Wexler balancing test applies only in cases such as
this one where the Commonwealth terminates the charge without conviction
or acquittal. Wallace, 97 A.3d at 317-18. Expungement of convictions is
available only in limited, statutorily-prescribed circumstances.        The
defendant is automatically entitled to expungement if he obtains an
acquittal. Id. (but see id at 382-84 Castille, C.J., concurring). Given our
Supreme Court’s analysis in Wallace, Appellant is not correct in asserting
that nolle prosequi is equivalent to acquittal.
5
   The Commonwealth does not challenge the trial court’s decision to
expunge three of the four charges in question.



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“[P]rison inmates do not enjoy the same level of constitutional protections

afforded   to   non-incarcerated   citizens.”      Id.   (quoting   Payne     v.

Commonwealth, 871 A.2d 795, 809 (Pa. 2005)).               The Wallace Court

explained that an inmate’s interest in protecting his reputation is minimal,

and that he can seek expungement once again upon release. Id. at 380-81.

Likewise, expungement of various non-conviction charges will not erase the

stigma that attaches to a convicted felon.      Id. at 381.   Furthermore, the

Commonwealth has an interest in retaining the arrest records inasmuch as

statutory law requires the parole board to consider the inmates complete

criminal history when making a parole decision.          Id. at 381 (citing 61

Pa.C.S.A. § 6135(a)(7)).

     Instantly, in refusing to expunge Appellant’s firearms charge, the trial

court explained, in accord with Wallace, that it would be useful for a future

parole board to understand the nature of Appellant’s 1985 robbery charge.

The trial court recognized that the consequences of denying expungement to

a prison inmate are minimal, and that the possibility of parole justifies the

Commonwealth’s desire to retain records.         In refusing to expunge the

firearms charge, the trial court followed Wallace to the letter.     The court

also noted that the Wexler test is not controlling here, given Appellant’s

current incarceration and our Supreme Court’s holding in Wallace.           Trial

Court Opinion, 7/30/15, at 3. We discern no abuse of discretion in the trial

court’s decision not to expunge the firearms charge.


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       Appellant     also   argues     that    the   Commonwealth,   in   opposing

expungement, has reneged on one of its obligations under the parties’ plea

bargain.      This argument fails because Appellant offers no evidence

expungement was part of the agreement.                 If Appellant assumed that

expungement of the nolle prossed charges is always part of the plea bargain,

he assumed incorrectly.        In Commonwealth v. Lutz, 788 A.2d 993 (Pa.

Super. 2001), this Court wrote:

             [T]he dismissal of some charges in exchange for a guilty
       plea to related charges represents a common scenario yet poses
       a thorny state of affairs when the defendant later seeks to
       expunge the dismissed charges.        In the absence of an
       agreement as to expungement, Appellant stands to receive
       more than he bargained for in the plea agreement if the
       dismissed charges are later expunged.

Id. at 1001 (emphasis added).            Absent any evidence of an agreement to

expunge, Appellant’s claim must fail.6

       Order affirmed. Application to remand denied.




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6
   Appellant filed an application for remand on August 24, 2015, asking this
Court to direct the trial court to issue an order pursuant to Pa.R.A.P. 1925(b)
so that Appellant can, in turn, file a concise statement under that Rule. Rule
1925(b) is not mandatory. Rather, the trial court may enter an order under
subsection (b) if the court “desires clarification of the errors complained
of[.]” Pa.R.A.P. 1925(b). Here, the trial court issued an opinion without
directing Appellant to file a concise statement of errors. Further, the trial
court’s opinion correctly anticipated Appellant’s arguments. We will deny
Appellant’s application to remand.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2016




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