J-A28041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JEFFREY TOMER

                            Appellant               No. 939 EDA 2014


                    Appeal from the Order February 14, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-MD-0001162-2009


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                    FILED NOVEMBER 05, 2014

      Jeffrey L. Tomer appeals an order denying his petition to expunge his

2009 conviction for indirect criminal contempt (“ICC”) arising out of an

alleged violation of a Protection from Abuse (“PFA”) order. Tomer’s petition

claims his ICC conviction is unjustified and harmful to his reputation. Trial

Court Opinion, 5/7/2014, at 1. We affirm on the basis of the well-reasoned

trial court opinion.

      The Commonwealth aptly sets forth the underlying factual background

as follows:

                   On February 24, 2009, appellant's wife
              Pure[u]suren Tomer, filed a PFA complaint against
              him. On April 2, 2009, counselled appellant agreed
              to a Final Protection from Abuse Order before the
              Honorable Maureen Fitzpatrick of the Court of
              Common Pleas of Delaware County, as follows:
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               Defendant is completely evicted and
               excluded from the residence at 507
               Corinthian    Avenue,      Apartment   A,
               Essington, Pennsylvania 19029, except
               for picking up and delivering children at
               agreed times and maintenance of
               properly only at specific times.

                On May 29, 2009, appellant was charged with
          Indirect Criminal Contempt on complaint, of his wife,
          Pure[u]suren Tomer. [The complaint alleged:]

               On May 24, 2009, at 9:00 a.m. I met my
               husband at Tinicum Police Station to
               drop of our children for their visitation
               with their father. I went home and was
               out front on my lawn with my neighbors
               when at around 10:15 a.m. the
               defendant came flying down the street
               very fast that he slid and crashed the car
               into the curb outside my residence. Our
               children were in the car. Defendant
               leaned across to passenger side window
               and said something to my neighbor
               about the lawn mower we were working
               on and my neighbor walked away and
               the defendant said to me ‘I will get you.’
               Defendant left and I called 911 because
               he scared me.’ DA's office has copies of
               Police Report [. . .] all of which were
               against the peace and dignity of the
               Commonwealth of Pennsylvania and
               contrary to the Act of Assembly, or in
               violation of 6114 and of the Title 23
               Domestic Relations Act.

                 Appellant contested the charges and a hearing
          was held June 4, 2009 before [the] Honorable
          Michael F. X. Coll, with Donna Frank[] representing
          the Commonwealth and Jay Feinschil representing
          defendant. It was stipulated that the PFA was in
          place at the time of the alleged violation. Ms. Tomer
          testified that on May 24, 2009, outside their house,
          defendant threatened her. He said, ‘I will get you.’
          (N.T. 6/14/09, 7).

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                    Defendant testified and denied the threat ‘I
              have never harmed my wife one --- never. I will
              never harm my wife. I don't desire any harm for her.
              I love her.’ Id. 32.

                    The court found him guilty of the ICC violation
              and sentenced him on June 4, 2009 to six month's
              probation. No appeal was taken from the Judgment
              of Sentence.

Commonwealth’s Brief at 2-3.

      On January 14, 2014, Tomer filed a pro se petition to expunge his ICC

record. On January 30, 2014, the trial court convened a hearing and, on

February     12,   2014,   issued   an   order   denying   Tomer’s   request   for

expungement.       On March 12, 2014, Tomer filed a timely notice of appeal.

On March 13, 2014, the trial court directed Tomer to file his 1925(b)

statement and, on April 1, 2014, he complied.

      Tomer presents the following issues for our review:

           1) [Is the appellant entitled to] expungement of an ICC
              conviction where the countermand of a questionable
              and disputed lower [c]ourt indirect contempt of court
              order is merited?

           2) [Is the appellant entitled to] a new trial through the
              reinstatement of appellate rights based upon the fact
              that notification of the 10 day right to file a motion
              and 30 day appeal period was not extended to
              plaintiff/appellant by the lower [c]ourt in opposition
              to PA statute?

Appellant’s Brief at 8.




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     We review the decision of the trial court to grant or deny a request for

expungement      of   an       arrest   record   for   an   abuse    of    discretion.

Commonwealth v. V.G., 9 A.3d 222 (Pa.Super.2010).

     When a defendant has been convicted of charges, and not merely

arrested, an expungement of the defendant’s criminal history records is only

permissible under limited circumstances set forth in 18 Pa.C.S.A. § 9122.

Hunt v. Pennsylvania State Police, 983 A.2d 627, 633 (Pa.2009). Section

9122 provides:

           (a) Specific proceedings.--Criminal history record
           information shall be expunged in a specific criminal
           proceeding when:

                  (1) no disposition has been received or, upon
                  request for criminal history record information,
                  no disposition has been recorded in the
                  repository within 18 months after the date of
                  arrest and the court of proper jurisdiction
                  certifies to the director of the repository that
                  no disposition is available and no action is
                  pending. Expungement shall not occur until the
                  certification from the court is received and the
                  director of the repository authorizes such
                  expungement;

                  (2)      a    court   order    requires   that    such
                  nonconviction data be expunged; or

                  (3) a person 21 years of age or older who has
                  been convicted of a violation of section 6308
                  (relating to purchase, consumption, possession
                  or transportation of liquor or malt or brewed
                  beverages), which occurred on or after the day

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                 the person attained 18 years of age, petitions
                 the court of common pleas in the county where
                 the conviction occurred seeking expungement
                 and the person has satisfied all terms and
                 conditions of the sentence imposed for the
                 violation, including any suspension of operating
                 privileges imposed pursuant to section 6310.4
                 (relating to restriction of operating privileges).
                 Upon review of the petition, the court shall
                 order the expungement of all criminal history
                 record      information   and   all   administrative
                 records of the Department of Transportation
                 relating to said conviction.

           (b) Generally.--Criminal history record information
           may be expunged 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(a), (b).



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       While acknowledging the binding precedent of Commonwealth v.

Charnik, 921 A.2d 1214 (Pa.Super.2012), in which this Court affirmed an

order denying expungement of a PFA record, Tomer argues that PFA records

are dissimilar and a case-by-case approach to expungement of such records

is necessary to implement justice. He distinguishes his own circumstances,

namely his consent to a PFA order that contained no admission of guilt, 1

which he claims was done in order to expedite a custody dispute, from the

circumstances in Charnik, wherein the trial court found actual physical

abuse and multiple, clear, willful violations of the PFA order. Appellant’s Brief

at 21-23. In support, he asserts:

              [T]he [Charnik] case exemplifies the extreme where
              there was [a] finding of actual physical abuse as well
              as a clear willful violation of the PFA order on
              multiple occasions and a finding of guilty. Rigidly
              following the [Charnik] case as exclusive precedent
              equates with mistreatment of dissimilar cases, an
              abuse of discretion in[sofar] as differentiation was
              deemed unworthy of the [c]ourt’s attention.

Appellant’s Brief at 22. Tomer further claims he entered into the PFA order

without knowledge of its permanent status. Id.

       In addressing Tomer’s claims, the trial court aptly reasoned:


____________________________________________


1
  While Tomer refers to his “consent” to a PFA order, it is unclear whether he
failed to contest his ex-wife’s petition for a PFA order or failed to contest his
subsequent violation of the order. His argument leads us to believe that he
refers to the latter situation, i.e., that he failed to contest his violation of the
PFA order.



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                     Section 9122(a) sets forth circumstances in
              which expungement is mandatory, none of which are
              applicable to the case sub judice, as Defendant’s
              charges resulted in a conviction, and the conviction
              is not for a violation of section 6308 (relating to
              purchase, consumption, possession or transportation
              of liquor or malt or brewed beverages).[2]

                                          ***

                    In Charnik, the Superior Court applied 18
              Pa.C.S.A. § 9122(b) to decide whether or not the
              appellant’s request for expungement of his
              convictions for ICC which arose out of violations of a
              PFA order should be granted. Charnik at 1215. The
              Court found that sections (b)(1) and (b)(2) did not
              apply to the appellant, and therefore his conviction
              for ICC could not be expunged. Here, as in Charnik,
              Defendant is less than 70 years of age and he has
              not been free of arrest for prosecution for ten years,
              and he is alive. Therefore, sections 1 and 2 do not
              apply to Defendant.

                     Since Charnik was decided, Section 9122 has
              been amended to include (b)(3), which allows for the
              expungement of summary offenses if the defendant
              is arrest and prosecution free for five years following
              his conviction. 2008 Pa. Legis. Serv. Act 2008-134
              (H.B. 1543). This Court was unable to find any case
              law applying Section (b)(3) to ICC convictions for
              violation of a PFA order. In applying Section
              (b)(3) to the instant case, this [c]ourt
              determined that it did not have discretion to
              grant Defendant's request for expungement for
              two reasons: (1) Defendant's conviction for ICC
              is not a conviction of a summary offense; and
____________________________________________


2
  See 18 Pa.C.S. § 9122(a)(3) (prescribing mandatory expungement for
convictions under section 6308 (relating to purchase, consumption,
possession or transportation of liquor or malt or brewed beverages)).



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          (2) even if Defendant's conviction is considered
          a summary offense conviction, Defendant has
          not been free of arrest or prosecution for five
          years following his conviction.

                 The PFA Act sets forth the punishment for an
          ICC conviction arising from a violation of a PFA
          order, which may include: a fine of not less than
          $300 nor more than $1,000 and imprisonment up to
          six months; or a fine of not less than $300 nor more
          than $1,000 and supervised probation not to exceed
          six months. 23 Pa.C.S.A. § 6114(b)(1)(i). Section
          6114 does not grade ICC arising from a violation of a
          PFA order, but merely provides the minimum and
          maximum sentences for a conviction. Where an
          offense is ‘declared by law to constitute a crime,
          without specification thereof, [the offense] is a
          misdemeanor of the second degree, if the maximum
          sentence does not make a felony under this section.’
          18 Pa.C.S.A. § 106(d). Therefore, this Court believes
          that an ICC charge arising from a violation of a PFA
          order is a misdemeanor of the second degree and
          not a summary offense. Further, 18 Pa.C.S.A. §
          1105 states that the sentence of imprisonment for a
          summary offense shall not be more than 90 days.
          Section 6114 of the PFA Act allows for imprisonment
          for an ICC conviction of up to six months, which is
          greater than 90 days, indicating the legislature did
          not intend an ICC conviction for violation of a PFA
          order to be a summary offense. See 1 Pa.C.S.A. §
          1922(2) (stating that in ascertaining the intention of
          the Generally Assembly, a court should presume that
          ‘the General Assembly intends the entire statute to
          be effective and certain’); Freundt v. Com. Dept,
          of Transp., Bureau of Driver Licensing, 883 A.2d
          503, 506 (Pa. 2005) (finding that when interpreting
          a statute, ‘individual statutory provisions must be
          construed with entire statute of which they are a
          part’). Finally, the Defendant's Criminal History
          Record was attached to his Petition. At page 1 of 1,
          that document shows the Pennsylvania State Police
          report[s] Defendant's ICC charge as a misdemeanor
          of the second degree.



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                     Because Defendant's conviction is not a
              summary offense conviction, the Court does not
              have discretion to grant expungement under Section
              9122(b). Even if Defendant's conviction were
              considered to be a summary offense conviction,
              Defendant has not been free of arrest or prosecution
              for five years following his conviction. Defendant was
              convicted on June 4, 2009. Therefore, the five[-]year
              period would not expire until June 4, 2014.

Trial Court Opinion, 5/7/2014, at 5-7 (emphasis added).

       After a thorough review of the record, the parties’ briefs, the

applicable law, and the well-reasoned opinion of the Honorable Ann Osborne,

it is our determination that that the trial court did not abuse its discretion.3

       Order affirmed.




____________________________________________


3
  Tomer has waived his second argument by failing to develop it with legal
authority or citations to the record. See Pa.R.A.P. 2101 (this Court may
quash or dismiss matter if defects in briefs or reproduced record are
substantial), 2111 (rules governing content of briefs), 2119 (argument
requirements, including a discussion and citation to authority). Reviewing
courts do not act as counsel to develop arguments on behalf of
appellants/petitioners. Commonwealth v. Hardy, 918 A.2d 766, 771
(Pa.Super.2007). When defects in a brief impede a reviewing court from
conducting meaningful appellate review, the court may dismiss the appeal
entirely or find that certain issues are waived. Id. See also
Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super.1996) (issue is
waived where defendant failed to develop argument in his appellate brief
and cited no authority).



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J-A28041-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




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