J-S25001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PAUL WEIMER,

                            Appellant                 No. 336 WDA 2013


                  Appeal from the Order dated January 4, 2013
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0001941-1992


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 09, 2015

        Appellant, Paul Weimer, appeals from the trial court’s order denying

his petition for expungement. After careful review, we affirm.

        Appellant filed a pro se motion to expunge a portion of his criminal

record,1 which was denied by the trial court by order dated January 4,

2013.2 The trial court docket indicates that this order was issued by Court of

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant seeks to have expunged charges from 1992 (based upon conduct
alleged to have occurred in 1989) that were nolle prossed as a result of a
negotiated plea agreement entered in 1993. No further action has been
taken by the Commonwealth to pursue those charges.
2
  The order denying Appellant’s expungement petition was dated January 4,
2013, but docketed on January 7, 2013. The trial court docket does not
indicate the date on which Appellant filed his petition, nor does that petition
appear in the certified record.
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Common Pleas Judge John. F. DiSalle. On February 4, 2013, Appellant filed

a timely, pro se notice of appeal from the trial court’s order denying the

petition for expungement. For the previous 2½ years, however, this matter

has remained in limbo due to numerous issues, as set forth in the following

procedural history.

      On April 12, 2013, the trial court purportedly issued an order for

Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant maintains that he

did not receive a copy of the order. Although a docket entry from the trial

court indicates that Judge DiSalle issued a concise statement order on April

12, 2013, no such document exists in the certified record.

      This Court issued notice of a delinquent record to the trial court on

May 6, 2013. Subsequently, on January 15, 2014, Appellant filed a motion

to compel the trial court to issue an order for Appellant to file a Rule 1925(b)

statement, a motion to compel the trial court to comply with our May 6,

2013 notice, and a motion to compel the trial court to reveal the name of

the judge who issued the January 2013 order denying expungement.             In

response, this Court issued the following order:

      Upon consideration of Appellant Weimer’s January 15, 2014
      “Motion to Compel the Name of the Judge that Issued the
      Expungement Denial; Compel Said Judge to issue an[] Order for
      Appellant’s Concise Statement of Matters; and Compel the Lower
      Court Pursuant to Pa.R.A.P. 1931 Governing the Transmission of
      the Record from the Trial Courts to the Appellate Courts and
      Hold the Lower Court in Contempt in Having Violated the
      Prothonotary’s Notice of Delinquent Record Pursuant to Pa.R.A.P.
      1935(a),” the motion is DENIED. As the record was due in this
      Court on April 5, 2013, it is hereby ORDERED that the trial court


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     is directed to complete, certify, and transmit the record to this
     Court forthwith.

Superior Court Order, 1/27/14, at 1.

     Appellant then filed an “Application for Clarification,” seeking again to

determine which trial court judge had issued the order denying his

expungement petition.   He also filed a motion seeking the appointment of

counsel. This Court responded to these matters as follows:

     Upon consideration of Appellant Weimer’s January 22, 2014
     “Petition for Appointment of Counsel for Appeal,” the petition is
     DENIED WITHOUT PREJUDICE to [A]ppellant’s right to seek the
     appointment of counsel in the lower court. Should the lower
     court deny Appellant’s request for counsel, Appellant may again
     seek counsel in this court once the original record has been
     transmitted to this court.

     Upon consideration of Appellant’s January 28, 2014 letter
     addressed to a deputy prothonotary of this Court, docketed by
     the prothonotary as a January 31, 2014 “Application for
     Clarification,” it is hereby noted that Judge John DiSalle is now
     listed on the lower court docket. Previously it appears that
     Judge Gladden was presiding.

Superior Court Order, 2/10/14, at 1.

     On February 28, 2014, the trial court issued its Rule 1925(a) opinion.

Therein, the court concluded Appellant waived all of his claims due to his

failure to file a Rule 1925(b) statement in compliance with the court’s April

2013 order. Trial Court Opinion, 2/28/14, at 2-3. The court recommended

that the instant appeal be “quashed and dismissed” on that basis. Id. at 3.

     On March 17, 2014, Appellant responded to the trial court’s opinion by

filing a motion in the lower court to rescind the opinion based on the trial

court’s failure to serve him with the concise statement order purportedly


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issued in April of 2013. That motion was ultimately denied on August 11,

2014. Appellant also filed an ostensibly untimely Rule 1925(b) statement on

April 4, 2014.

      Also on April 4, 2014, the trial court sent an incomplete certified

record to this Court. On April 16, 2014, this Court issued an order directing

the Washington County Clerk of Courts to “determine the state of the

original record and complete, certify, and transmit a supplemental record to

this Court of materials constituting the original record not yet transmitted.”

Superior Court Order, 4/16/14, at 1.        A supplemental record was not

transmitted to this court until January 16, 2015. The supplemental record,

as noted above, lists a docket entry for an order by the trial court directing

Appellant to filed a Rule 1925(b) statement; however, no corresponding

order appears in the certified record.

      Appellant again sought relief in this court due to the trial court’s

purported failure to issue a Rule 1925(b) order directing him to file a concise

statement.       See Appellant’s Application For Extraordinary Relief, filed

4/25/14. We denied Appellant’s application without prejudice “to Appellant’s

right to raise all properly preserved issues in Appellant’s brief.”   Superior

Court Order, 5/21/14, at 1.

      On September 3, 2014, Appellant filed in the trial court a motion for

recusal directed at Judge DiSalle. The proffered basis for recusal was that

Judge DiSalle was an Assistant District Attorney for Washington County who

had prosecuted Appellant’s 1992 case, who negotiated Appellant’s plea

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agreement at that time on behalf of the Commonwealth, and who had

stipulated at the corresponding sentencing hearing that Appellant’s plea did

not involve any sexual conduct or activity.3 On November 25, 2014, the trial

court issued the following order:

       AND NOW, this 24th day of November, 2014, upon consideration
       of [Appellant]'s request for recusal in his letter to this Court
       dated August 11, 2014, and a lengthy search for the records in
       this matter from the District Attorney's office, Although [sic] the
       Court has no recollection of being involved in the prosecution of
       this case, the Court was employed by the District Attorney's
       office at the time of [Appellant]'s sentencing, which according to
       the Docket, occurred on May 10, 1993, but the transcript
       provided by [Appellant] shows the date as being May 10, 1998,
       the Court hereby GRANTS [Appellant]'s request for recusal and
       hereby ORDERS that the order filed January 7, 2013 is VACATED
       and that a new judge be assigned to this matter.

Trial Court Order, 11/25/14, at 1.

       Subsequently, on December 22, 2014, this Court issued an order

which, inter alia, acknowledged Judge DiSalle’s November 25, 2014 order,

but noted that the trial court lacked jurisdiction to modify that order

pursuant to 42 Pa.C.S. § 5505 (“Except as otherwise provided or prescribed

by law, a court upon notice to the parties may modify or rescind any order

within 30 days after its entry, notwithstanding the prior termination of any

term of court, if no appeal from such order has been taken or allowed.”).

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3
  At Appellant’s 1998 sentencing hearing, defense counsel stated that
Appellant’s plea to furnishing alcohol to minors “would not be in regards to
any alleged sexual conduct or activity,” to which then A.D.A. DiSalle
responded, “We are willing to stipulate to that.” N.T., 5/10/98, at 4.



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     The   Washington       County   Clerk   of   Court   finally   transmitted   a

supplemental certified record to this court on January 16, 2015. Appellant

filed his brief on February, 22, 2015.       Therein, he presents the following

questions for our review:

     I. Whether the trial court abused it’s [sic] discretion to deny
     [the] Petition for Expungement of Nolle Prosequi charges where
     expunction should be granted?

     II. Whether the trial court abused it[]s discretion to deny [the]
     Petition for Expungement of Nolle Prosequi charges where the
     Commonwealth failed to meet it’s [sic] burden of justifying the
     retention of the arrest records through due process?

     III. Whether the trial court committed reversible error as a
     matter of law by first denying Appellant's Petition for
     Expungement without a hearing to determine the factors set
     forth in Commonwealth vs. Wexler, 494 Pa. 325, 431 A.2d
     877 (Pa. 1981)?

     IV. Whether the trial court abused it's [sic] discretion in denying
     Appellant's Petition to proceed In Forma Pauperis when Appellant
     is indigent to pay [sic] the filing fee associated with Appellant's
     Petition for Expungement?

     V. Whether the trial court through bias, ill will and partiality
     authored an Opinion frivolous to the law suggesting that
     Appellant's appeal be dismissed and quashed for failing to file a
     Concise Statement of Matters pursuant to the Lower Court's April
     12, 2013 Order concerning the 1925(b), where Appellant
     requested the same to this Court and verified never receiving
     said Order as verified by the SCT-Fayette Department of
     Corrections Officials, and was properly filed through due
     diligence thereafter, was an abuse of office through Official
     Oppression and an abuse of discretion clearly made intentional
     against Appellant?

     VI. Whether the Superior Court of Pennsylvania has the power
     and jurisdiction to remedy a constitutional issue that was
     previously ruled on by the Third Circuit Court of Appeals
     concerning the exact wrongful classification Appellant is once


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       again experiencing, where the record demonstrates and the
       issue was preserved in the lower court?

       VII. Whether this Superior Court can, as a matter of law,
       separate the grounds and reason for expungement between the
       Wallace case,[4] where Appellant’s case differs completely until
       the term incarceration is used, where the Supreme Court never
       addressed previously filed or pending cases of expungements by
       incarcerated individuals, or where constitutional grounds cannot
       be raised or considered where a petitioner is being harmed by
       such retention of disposed/unrelated charges?

Appellant’s Brief, at 3-4 (unnecessary capitalization omitted).      For the

reasons that follow, we will not address each of Appellant’s claims, although

we do, to some extent, address the issues raised in his sixth and seventh

questions presented for our review.

       As a preliminary matter, we address the issue of waiver.    It is well-

established that “[a]ny issues not raised in a 1925(b) statement will be

deemed waived.” Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

In Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005), our Supreme

Court applied Lord’s bright-line waiver rule to untimely filed 1925(b)

statements.     Here, the trial court found that Appellant waived all claims

because he did not comply with the court’s April 12, 2013 order, as he did

not file his Rule 1925(b) statement until April 4, 2014.

       As this Court has noted, “[t]he decision of the Supreme Court in …

Lord … established a bright-line rule for Rule 1925 compliance mandating a

finding of waiver of all issues on appeal in the event of non-compliance with
____________________________________________


4
    Commonwealth v. Wallace, 97 A.3d 310 (Pa. 2014).



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Rule 1925.”    Commonwealth v. Burton, 973 A.2d 428, 430 (Pa. Super.

2009) (footnote omitted) (emphasis added).        Here, because the certified

record does not contain the order in question, we hold that Lord’s bright-

line waiver rule is inapplicable. Appellant cannot be held accountable for his

failure to comply with an order that does not exist in the certified record.

“[A]n appellate court is limited to considering only the materials in the

certified record when resolving an issue.” Commonwealth v. Preston, 904

A.2d 1, 6 (Pa. Super. 2006).      “Simply put, if a document is not in the

certified record, the Superior Court may not consider it.”          Id. at 7.

Accordingly, we decline to find waiver.

       However, the Commonwealth asserts, pursuant to Commonwealth v.

Wallace, 97 A.3d 310, 312 (Pa. 2014), that Appellant is not due any form of

relief on appeal from the trial court’s order denying his petition for

expungement because he is currently incarcerated. We are constrained to

agree.   In Wallace, an inmate sought expungement of his non-conviction

arrest records.   After balancing the interests of the individual against the

Commonwealth, our Supreme Court held that “an inmate does not have the

right to petition for expungement while incarcerated.” Wallace, 97 A.3d at

322.     The holding in Wallace was driven by an analysis set forth in

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

Supreme Court recognized that:

       [I]n certain circumstances substantive due process guarantees
       an individual the right to have his or her arrest record expunged.
       In determining whether justice requires expungement, the

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        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.

Id. at 879.

        Among the factors to be considered by a court in balancing these

interests are:

        1) the strength of the Commonwealth's case; (2) the
        Commonwealth's reasons for wishing to retain the records; (3)
        the petitioner's age, criminal record, and employment history;
        (4) the length of time between the arrest and the petition to
        expunge; and (5) the adverse consequences the petitioner may
        endure if expungement is denied.

Wallace, 97 A.3d at 314 (citing Wexler, 431 A.2d at 879).5

        In reaching its conclusion that an inmate has no right to petition for

expungement, the Wallace Court essentially found that an individual’s

incarcerated status was a dispositive factor under the Wexler balancing

test.    Although the Wallace Court recognized Wallace’s reputation as a

protected private interest in this Commonwealth, the Court found this factor

was outweighed by many other considerations. First, the court found that

the risk of erroneous deprivation of the appellant’s reputation interest was

“slim.” Wallace, 97 A.3d at 321. The Wallace court recognized denial of

an inmate’s petition for expungement is not the final word on the subject of

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5
  Although not specifically mentioned by the Wallace Court, the Wexler
Court noted that “this is not necessarily an exclusive or exhaustive list; other
factors may require examination in a particular case.” Wexler, 431 A.2d at
879.



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expungement, as there would be no obstacle to the same inmate seeking

expungement after he or she is released from custody. Id. Furthermore,

the Court found that the impact on Wallace’s reputation from the

expungement of       non-conviction arrest records would be          minimal   in

comparison to the effect on his reputation caused by the convicted offenses

for which Wallace was still serving a sentence of incarceration. Id.

       The Wallace Court also found that the Commonwealth had a

“compelling interest in retaining the records” because, among other things, a

complete criminal history record may be needed in order to determine an

inmate's eligibility for parole.”   Id.    Additionally, the Court considered the

cost   and    security-related   burdens    placed   on   the   Commonwealth   in

transporting an inmate to court from prison for purposes of holding an

expungement hearing. Id. at 321-22.

       Many of these same factors apply equally to Appellant and his petition

seeking expungement.        However, we recognize at least one significant

difference.    Appellant alleges that the nolle prossed charges at issue are

currently being used against him in “evaluating Appellant’s level of Sex

Offender Classes where Appellant would have to admit to the same[.]”

Appellant’s Brief, at 6.         This is cause for concern.       We do find it

unconscionable that Appellant should be compelled to admit to charges,

which the Commonwealth nolle prossed more than two decades ago, in

order to comply with a sexual offender program run by state prison

authorities. We are particularly disturbed as this situation is aggravated by

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the fact the Commonwealth nolle prossed the at-issue charges in exchange

for Appellant’s plea to a non-sexual offense, and where the Commonwealth

even stipulated at the time of sentencing that Appellant’s plea was not to be

construed as an admission to any alleged sexual misconduct.

         However, while expungement might assist Appellant in combating this

injustice on a rhetorical level, we are not at all convinced that it will compel

the specific relief Appellant seeks to gain through expungement.                 If state

prison authorities are currently unfazed by the nolle prossed status of the at-

issue charges, it is not at all clear to us that expungement of those charges

will have the desired effect of relieving Appellant of the burden of admitting

to them in order to comply with the institution’s sexual offender treatment

program.       And, even if it did, expungement may constitute over-inclusive

relief    in   light   of   the   general   rule     announced   in   Wallace,   as   the

Commonwealth’s interest in retaining Appellant’s non-conviction records is

no less compelling than it was in Wallace.

         To directly address the specific harm complained of, Appellant’s

remedy, if any, lies within the civil court system in a civil rights action

directed at the institution in which he is incarcerated, its officials, and/or the

specific managers of the sexual offender program to which he is subject.6
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6
  We acknowledge Appellant’s argument that he previously litigated this
matter in the civil courts. In a bench opinion issue by the Third Circuit in
2000, the Court of Appeals found no basis upon which state correctional and
parole officials could classify Appellant as a sexual offender. Consequently,
(Footnote Continued Next Page)


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      We     conclude,       therefore,     that    Appellant   has   not   presented

circumstances that would give rise to an exception to the Wallace rule. As

such, all of Appellant’s specific questions presented for our review, although

not waived, are nevertheless rendered moot by our decision to apply the

Wallace rule.          Accordingly, we affirm the trial court’s order denying

Appellant’s petition for expungement.

      Order affirmed. Jurisdiction relinquished.

      Judge Stabile joins this memorandum.

      Judge Platt concurs in the result.




                       _______________________
(Footnote Continued)

the Third Circuit concluded that Appellant “asserted sufficient arbitrary
action under the equal protection clause and thus stated a sufficient claim
upon which relief could be granted to survive dismissal under Fed. R. Civ.
Pro. 12(b)(6).”    Weimer v. Horn, 216 F.3d 1078 (3d Cir. 2000)
(unpublished opinion).

      However, Appellant has not been continuously incarcerated since that
decision was issued. Appellant is currently incarcerated on different charges
for numerous sexual offenses against minors for which he was sentenced in
2011, and which are unrelated to his 1992 plea. Consequently, we have no
doubt that Appellant is now properly classified as a sexual offender, and the
Third Circuit’s ruling from 2000 is immaterial to that question for that
reason.    The Third Circuit’s decision also does not address, and/or is
completely distinct from, Appellant’s specific predicament, which concerns
whether he should be compelled to admit to the allegations underlying the
1992 nolle prossed charges in order to comply with the current sexual
offender treatment program.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2015




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