J-A09021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

TERRANCE BROWN

                        Appellant                No. 2971 EDA 2012


               Appeal from the Order September 27, 2012
          In the Court of Common Pleas of Philadelphia County
         Criminal Division at No(s): No. CP-51-CR-0218841-1992


COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

TERRANCE BROWN

                        Appellant                No. 2972 EDA 2012


                Appeal from the Order September 27, 2012
           In the Court of Common Pleas of Philadelphia County
         Criminal Division at No(s): No. MC-51-CR-0006654-2011


BEFORE: BOWES, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                          FILED AUGUST 21, 2014

     Terrance Brown brings these consolidated appeals from the orders

entered in the Philadelphia County Court of Common Pleas on September

27, 2012, denying his petitions for expungement of his criminal record in

two prior cases.   On appeal, Brown argues the trial court abused its
J-A09021-14



discretion in denying his petitions for expungement.           For the reasons set

forth below, we affirm in part, and reverse in part.

        The facts underlying these appeals are as follows. On June 6, 2012,

Brown filed petitions for expungement of charges in three separate cases.

The first involved charges filed in 1985, for which he was ultimately found

not guilty. The trial court granted this petition,1 and that case is not before

us on appeal.      Brown, however, also sought to expunge charges filed in

1992 and 2011.



charges of possession of a controlled substance and possession with intent
                                                  2
                                                      The Commonwealth withdrew

the charges four months later on May 8, 1992.3

        The 2011 charges, involving simple assault and recklessly endangering
                              4
                                  stem from a dispute with his then girlfriend.5   A
____________________________________________


1
    N.T., 9/27/2012, at 5.
2
    35 P.S. §§ 780-113(a)(16) and (a)(30).
3
    The original record from this arrest has been lost. See Trial Court Opinion,

record, which includes only the criminal docket.
4
    18 Pa.C.S. §§ 2701 and 2705.
5




question, dragged her out of a car, pushed her against the vehicle,
(Footnote Continued Next Page)


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J-A09021-14




order was issued because domestic violence was alleged.         Investigation

Report, 2/16/2011, at 1. The case was continued on March 21, 2011, when

both Brown and the complaining witness failed to appear in court.     At the

next listing on April 14, 2011, the Commo

appear. The Commonwealth then withdrew the charges on July 28, 2011.

       The trial court held a Wexler6 hearing on September 27, 2012, at

which time defense counsel acknowledged that Brown was presently serving

                 bation for a recent theft conviction.7   The only testimony

offered at the hearing was from Brown, during which he acknowledged he

had been a practicing nurse for 19 years, although he claimed that he had

been denied employment in two instances as a result of the 1992 and 2011
                       _______________________
(Footnote Continued)


Affidavit, 7/2/2010, at 2.
6
    Commonwealth v. Wexler, 431 A.2d 877 (Pa. 1981).
7
  Although the details of the recent theft charges are not in the certified
record, the trial court provided the following background in its opinion:

       In June 2011, [] Brown was arrested and charged with Insurance
       Fraud and Conspiracy to Commit Insurance Fraud, both felonies,
       as well as Attempted Theft by Deception, a misdemeanor. The
       charges were apparently related to events occurring in 1996,
       and [] Brown pled guilty to the misdemeanor in exchange for the
       Commonwealth nolle prossing the two felonies. [] Brown was
       sentenced to two years probation on Sept. 19, 2012.

Trial Court Opinion, 6/18/2013, at 1-2 (footnotes and internal citation
omitted).



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J-A09021-14




remaining two petitions for expungement. These timely appeals followed.8

       On appeal, Brown argues the trial court abused its discretion in

denying his petitions for expungement.           Specifically, he contends the trial

court failed to place the initial burden on the Commonwealth to justify the

retention of his non-conviction records with specific, compelling reasons.

Moreover, Brown argues that even if we determine that the Commonwealth

met its initial burden, the trial court abused its discretion in finding the

Wexler factors weigh in favor of retention of the records.

                                         [t]he decision to grant or deny a petition

to expungement lies in the sound discretion of the trial court, who must




                                  Commonwealth v. Wallace, ___ A.3d ___,

2014 WL 3579692, *6 (Pa. filed 7/21/2014), quoting Wexler, supra, 431

A.2d at 879.




____________________________________________


8
  On October 15, 2012, the trial court ordered Brown to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Brown complied with th
statements for each case on November 2, 2012.




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J-A09021-14



     In Commonwealth v. Moto, 23 A.3d 989 (Pa. 2011), our Supreme



petition for expungement of criminal records:

            Judicial analysis and evaluation of a petition to expunge
     depend upon the manner of disposition of the charges against
     the petitioner. 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. 18 Pa.C.S. § 9122; Hunt v. Pennsylvania
     State Police, 603 Pa. 156, 983 A.2d 627, 633 (2009). When a
     petitioner has been tried and acquitted of the offenses charged,
     we have held
                                            Commonwealth v. D.M.,
     548 Pa. 131, 695 A.2d 770, 772 73 (1997).                When a
     prosecution has been terminated without conviction or acquittal,
     for reasons such as nolle prosse of the charges or the



     free from the harm attendant to maintenance of the arrest

               Commonwealth v. Wexler, 431 A.2d 877, 879
     (Pa.1981); D.M., supra
     Wexler and the balancing test approved therein as the means of
     deciding petitions to expunge the records of all arrests which are


     To aid courts in applying the balancing test for expungement, we
     also adopted in Wexler the following non-exhaustive list of
     factors that the court should consider:

        These    factors   include   [1]   the   strength   of   the

        reasons the Commonwealth gives for wishing to retain the

        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).


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J-A09021-14


            We have emphasized that in applying the balancing test
      and considering the above factors, the court must analyze the
      particular, specific facts of the case before it. Id. at 880 81.
      The mere assertion by the Commonwealth of a general interest
      in maintaining accurate records of those accused of a crime does

      clearing his or her record. Id. at 881 82.

            In addition, Wexler explicitly placed the burden of proof
      on the Commonwealth. The case against the Wexler appellants
      had been nolle prossed after the Commonwealth had admitted
      that it would be unable to sustain its burden of proof at trial.
      Wexler, supra at 880. Nonetheless, the trial court denied the

      Superior Court affirmed. [The Supreme] Court reversed and
      ordered expungement, concluding that the Commonwealth had
                                                        the retention of
                                          Id. at 881. Importantly, in
      general terms, we held that when the Commonwealth admits
      that it is unable to bear its burden of proof beyond a reasonable
                                                                urden of
                                                                  Id. at
      880.

Id. at 993-994.

      Therefore, pursuant to Wexler and its progeny, the Commonwealth

                                                                  -conviction

records when, as here, the charges were dismissed by the Commonwealth

before trial.

      In his first issue, Brown argues Wexler                   -step process



must meet its initial burden of providing specific, compelling reasons to

                                -conviction   records.     Only    after   the

Commonwealth has met its initial burden may the trial court engage in a

balancing of the Wexler factors. See id.


                                    -6-
J-A09021-14



       We    do   not    agree    that   Wexler       and    its   progeny    require    the

Commonwealth to overcome an initial hurdle before the trial court may

weigh the Wexler factors. It is clear that in a case in which the charges

against a defendant were dismissed before trial, the Commonwealth bears

the ultimate burden of justifying retention of his criminal records. Moreover,

this Court has explained:

       [The Wexler factors] serve as guidance to the court in
       determining whether the Commonwealth has met its burden.
       Those factors do not shift the burden of persuasion to the
       petitioner.  If the petitioner does not show great harm or
       prejudice by retention of the records, such a showing may be
       considered in a balancing test, but the ultimate burden of proof
       and persuasion is upon the Commonwealth.

Commonwealth v. McKee, 516 A.2d 6, 9 (Pa. Super. 1986). The cases do

not, however, require the trial court to forgo consideration of the Wexler

factors   when     the   Commonwealth          initially   fails   to   provide   sufficient,
                                                                                  9
                                                                                      Rather,

as our Supreme Court stated in Commonwealth v. D.M., 695 A.2d 770,

                     [a]ll the factors listed in Wexler, and similar additional

considerations, should be evaluated in expunction cases which are

terminated without conviction for reasons such as nolle prosequi

(emphasis supplied).       Therefore, we decline to create a two-part test, as

____________________________________________


9

reasons would weigh heavily in favor of expungement.




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J-A09021-14



suggested by Brown, requiring the Commonwealth to provide compelling

                                                      -conviction record before

permitting the trial court to consider the Wexler factors.10 Accordingly, his

first argument fails.

       Next, Brown argues the trial court abused its discretion in concluding

that the Wexler factors in the present case weigh in favor of retention of his

1992 and 2011 non-conviction records when the Commonwealth failed to

present any reasons supporting retention of the records at the Wexler

hearing, and the remaining factors weigh in favor of expungement.

       Although the certified record includes relevant documents pertaining to



of testimony from the Wexler hearing in the present case reveals that the

Commonwealth offered no witnesses or argument in support of its position

                                 cords should be maintained. In fact, the entire



alleged prejudicial effect his arrest record has had on his ability to find




____________________________________________


10
                                     Wexler hearing would be unnecessary
if the Commonwealth did not initially respond to the expungement petition
with sufficient, compelling reasons justifying retention of the criminal
records. Brown does not present any authority for this requirement and our
research has revealed no such condition precedent.




                                           -8-
J-A09021-14



employment as a nurse.11 See N.T., 9/27/2013, at 1-10. We also note that

the trial court, in its initial ruling before Brown was afforded the opportunity

to testify, denied the expungement petitions, presumably because Brown

was on probation for another, more recent charge.12           See Docket Entry,

9/27/2012      (stating



criminal record is a factor for the trial court to consider when determining

whether his non-                                                          adverse
                  13
                       the fact that he is currently on probation does not, alone,

preclude expungement of his prior non-conviction records.14 As set forth in


____________________________________________


11
  Despite the alleged negative effect of the arrest records, however, Brown
admitted he has been employed as a licensed practical nurse for 19 years.
N.T., 9/27/2013, at 6.
12
    In fact, the trial court mistakenly believed that Brown also petitioned to
expunge two charges related to his most recent theft plea. See Trial Court
Opinion, 6/18/2013, at 6-8. However, a review of the record reveals Brown
filed only three petitions: the first, seeking to expunge the 1985 charges for
which he was acquitted, and the other two seeking to expunge the 1992
drug charges and the 2011 domestic violence charges. Therefore, the trial
                                                     nolle prossed in exchange


13
     Wexler, supra, 431 A.2d at 879.
14
   We note that in Wallace, supra, the Pennsylvania Supreme Court
                                     not have the right to petition for
expungment while incarcerated      Wallace, supra, at *10 (emphasis
supplied). Since, in the present case, Brown is not incarcerated, the
pronouncement in Wallace does not affect our decision.



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J-A09021-14



D.M. and Wexler, a trial court should consider all the factors.15            See

Wexler, supra, 431 A.2d at 879; D.M., supra, 695 A.2d at 773.

Nevertheless, for the reasons that follow, we agree that the record reveals




       With regar




                                                          of the certified record,

and in particular, the transcript from the expungement hearing, reveals the

Commonwealth failed to meet its burden of providing any reason, let alone

a compelling one, to justify retention of these 20-year-old drug charges, and

none is apparent on the face of the record.        Accordingly, we find the trial



charges.

       However, our analysis of the 2011 assault charges leads us to a

different conclusion. First, the 2011 charges stemmed from an incident of




____________________________________________


15
                                                              probationary
status in denying his petitions, but rather, considered the Wexler factors
and concluded that the Commonwealth met its burden of justifying retention




                                          - 10 -
J-A09021-14



domestic violence.16 Moreover, a review of the docket entries in that case

reveals that the Commonwealth was not ready at the first two listings

because the victim failed to appear in court. See Criminal Docket, MC-51-

CR-0006654-2011, 3/21/2011, and 4/15/2011.           The Commonwealth then



arrest. Brown sought to expunge the charges less than one year later, on

June 6, 2012.

       This C                        Commonwealth v. Drummond, 694 A.2d

1111 (Pa. Super. 1997), is instructive. In that case, the defendant sought to

expunge domestic violence charges from his record. He was charged with

aggravated assault, simple assault and REAP for allegedly punching his wife

in the face, and scalding her arms and chest with boiling water.         The

Commonwealth withdrew the charges after the victim refused to testify

against her husband.         The defendant, who had no prior arrests, filed a

petition for expungement less than one year following dismissal of the

charges, which the trial court denied.
____________________________________________


16
     In his Reply Brief, Brown chastises the Commonwealth for making


the 2011 charges includes the probable cause affidavit for his arrest, which
clearly alleges domestic violence. Moreover, as we noted supra, a pretrial
services investigation report included in the record indicates that a stay
away order was issued because domestic violence was alleged. Therefore,




                                          - 11 -
J-A09021-14



     On appeal, this Court affirmed, concluding that the trial court did not

                                                                  Wexler] factors

weighed in favor o

Id. at 1113.    Specifically, this Court found that the Commonwealth had a



since the investigating officer witnessed the vict

Further, although the defendant had no prior arrests, the only adverse

consequences he cited as resulting from the arrest were general claims of

                                           Id. at 1113.

       Moreover, this Court found compelling the fact that the petition was

filed less than one year following dismissal of the charges, a time period we



                                                           Id. at 114.    Lastly, we

emphasized that the statute of limitations for the crimes with which the



cases such as the present one, where the evidence against a petitioner is not

wholly insufficient,   a petitioner's record should,         at   a minimum, be

maintained     throughout   the   applicable   statutory    period   to   allow   the

                                                                                  Id.

     We conclude that the facts in the present case are closely aligned to

those in Drummond.          Here, the assault charges against Brown were



Moreover, the probable cause affidavit indicates that the charges were

                                      - 12 -
J-A09021-14



substantiated by the investigating officer, who stated that he photographed



7/2/2010, at 2. Lastly, Brown sought to expunge the charges less than one

year after they were dismissed.17

       Therefore, the fact that the arrest at issue involved a recent allegation



nurse for the last 19 years, provided the trial court with a sufficient basis to
                                                               18
                                                                    Although we

agree the Commonwealth failed to proffer evidence at the Wexler hearing,19

nevertheless, we conclude that the trial court acted within its discretion



record on appeal, prior to rendering its decision.20    Therefore, we find no
____________________________________________


17
   The 2011 charges stemmed from a incident that occurred on June 20,
2010. Therefore, the two year statute of limitations for the charges of
simple assault and REAP had not yet expired when Brown filed his
expungement petition on June 2, 2012. See 42 Pa.C.S. § 5552(a).
18
    We recognize that the trial court denied expungement of the 2011 for
different reasons. See Trial Court Opinion, 6/18/2013, at 5-6. However,
                                                 e trial court, and we may
                                     Commonwealth v. Williams, 73 A.3d
609, 617 (Pa. Super. 2013), appeal denied, 87 A.3d 320 (Pa. 2014).
19

initial de
20



as a nurse, specifically a nurse entrusted with taking care of individuals in a

(Footnote Continued Next Page)


                                          - 13 -
J-A09021-14




to expunge the 2011 charges.



petition to expunge the 1992 drug charges, and affirm the order denying



      Order    reversed       at   docket    no.     CP-51-CR-0218841-1992.   Case

remanded with directions to expunge the record as requested.                  Order

affirmed at docket no. CP-51-CR-0006542-2011. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




                       _______________________
(Footnote Continued)


not proffer this reason during the Wexler hearing.               However, based on


for retention may be inferred from the record. N.T., 9/27/2012, at 6.



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