J-S15032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PEGGY DEBNAM,

                            Appellant                No. 1075 EDA 2015


                 Appeal from the Order Entered March 20, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-1206551-2000


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

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 29, 2016

        Appellant, Peggy Debnam, appeals pro se from the order denying her

petition to redact charges which were dropped as part of a plea agreement

fifteen years earlier when she entered a guilty plea to one count of witness

intimidation as a felony of the third degree. Appellant maintains there was

no plea agreement and the trial court erred by applying Commonwealth v.

Lutz, 788 A.2d 993 (Pa. Super. 2001), instead of Commonwealth v.

Wexler, 431 A.2d 877 (Pa. 1981). We affirm.

        We derive the facts of the case from the trial court’s opinion and our

independent review of the record:

              On June 7, 2001, Appellant pled guilty to one count of
        witness intimidation and on the same date the trial court granted
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S15032-16


       the Commonwealth’s motion for nolle prosequi on one count
       each of retaliation against a witness, terroristic threats, and
       obstruction of justice. Appellant was sentenced to time served
       to a maximum of twenty-three months of confinement followed
       by three years[’] probation. On March 20, 2015, Appellant
       petitioned this court pro se to redact the nolle prossed charges.
       The stated reasons for Appellant’s request was that she was
       seeking a pardon for the charge she pled guilty to and that she
       was unable to apply for a nursing degree. The Commonwealth
       objected to the redaction on the basis that the redaction of these
       charges was not part of the benefit of the bargain of the plea
       agreement. The guilty plea colloquy indicated that the District
       Attorney promised to recommend a sentence of not more than
       time served to twenty-three months[’ incarceration] and three
       years reporting probation in exchange for their motion for nolle
       prosequi on all other charges. Because a redaction of these
       charges was not part of the plea agreement, this [c]ourt denied
       Appellant’s petition for redaction.

(Trial Court Opinion, 7/09/15, at 1-2) (record citations omitted).

       On April 13, 2015, Appellant timely filed a notice of appeal from the

court’s order of March 20, 2015.1

       Appellant presents four questions for our review:

              [1.] Did the [trial] Court Abuse it’s [sic] Discretion when it
       failed to consider the Wexler factors when determining whether
       to grant or deny the Motion for Redaction of charges?

            [2.] Did the [trial] Court error [sic] when it relied on
       Commonwealth v. Lutz, 788 A.2d 993 (Pa. Super. [20]01),
       which is no longer good law?

             [3.] Did the [trial] Court error [sic] when it determined
       that there was a plea agreement between Appellant and the
       Commonwealth and did the Court error [sic] when it determined
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1
 The trial court did not order a statement of errors. See Pa.R.A.P. 1925(b).
The court filed an opinion on July 9, 2015. (See Trial Ct. Op., 7/09/15); see
also Pa.R.A.P. 1925(a).



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      that the charges were nolle prosequi, without any record support
      or for that matter any evidence [whatsoever] to support such
      conclusion?

           [4.] Did the [trial] Court error [sic] in failing to grant the
      Motion for Redaction of Charges?

(Appellant’s Brief, at iv) (capitalization in original) (questions verbatim

except as noted by brackets).

      As recognized by Appellant, her petition for redaction is actually a

request for expungement. (See, e.g., Appellants’ Brief, at 1).

      Our Supreme Court has recently reaffirmed the standard of review for

expungement:

            [The Pennsylvania Supreme] Court has consistently found
      that the right in this Commonwealth to petition for expungement
      of criminal records is an adjunct of due process. The decision to
      grant or deny a petition for expungement lies in the sound
      discretion of the trial court, who must balance the individual’s
      right to be free from harm attendant to maintenance of the
      arrest record against the Commonwealth’s interest in preserving
      such records.

Commonwealth v. Wallace, 97 A.3d 310, 317 (Pa. 2014) (quotation

marks and citation omitted). Accordingly, “[w]e review the decision of the

trial court for an abuse of discretion.”       Lutz, supra at 996 (citation

omitted). A trial court abuses its discretion if in reaching a conclusion, the

law is overridden or misapplied, or the exercised judgment is manifestly

unreasonable or is the result of partiality, prejudice, bias, or ill will.   See,

e.g., Commonwealth v. Hann, 81 A.3d 57, 65 (Pa. 2013). To the extent

Appellant’s arguments raise questions of law, our appellate standard of



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review is de novo, and the scope of our review is plenary.                      See

Commonwealth v. Sanford, 863 A.2d 428, 431 (Pa. 2004).

        In general, the Criminal History Record Information Act at 18

Pa.C.S.A. §§ 9101-9183, and specifically Section 9122, governs the

expungement of criminal records.2 There is no dispute, and Appellant does

not argue, that she meets any of the statutory criteria.

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2
    In pertinent part, 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 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
(Footnote Continued Next Page)


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      Here, preliminarily, we are compelled in the interest of clarity to note

that Appellant’s brief is materially and substantively deficient.   Appellant’s

three argument sections do not correspond to the first three questions raised

in the statement of questions involved, and she omits any argument in

support of her fourth question altogether. (See Appellant’s Brief, at iv, 1-5).

The argument actually presented is somewhat repetitive, unfocussed and

overlapping.

                       _______________________
(Footnote Continued)

      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.A. § 9122 (a), (b).




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       [A]lthough this Court is willing to construe liberally materials
       filed by a pro se litigant, pro se status generally confers no
       special benefit upon an appellant. Accordingly, a pro se litigant
       must comply with the procedural rules set forth in the
       Pennsylvania Rules of the Court. This Court may quash or
       dismiss an appeal if an appellant fails to conform with the
       requirements set forth in the Pennsylvania Rules of Appellate
       Procedure.

Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),

appeal denied, 879 A.2d 782 (Pa. 2005) (citations omitted).

       Nevertheless, here, as in Lyons, in the interest of justice and judicial

economy, we will address the arguments that can reasonably be discerned

from this defective brief. See id. at 252.

       Initially, we note that Appellant misapprehends, or simply misstates,

several key facts of record which form the foundation of her arguments.

Notably, she asserts repetitively that there is no plea agreement in this case.

Her claim is incorrect and contradicted by the record.

       To the contrary, Appellant herself filed a reproduced record which

consisted of the signed and annotated written guilty plea colloquy.        (See

Written Guilty Plea Colloquy, 6/07/01, 1-4). She also identified the colloquy,

(although she neglected to attach it), as Exhibit A of her brief.3

       Appellant maintains in particular that the guilty plea colloquy states

“there was no plea agreement in this case.”          (Appellant’s Brief, at 2).
____________________________________________


3
  The written guilty plea colloquy is included as a supplement to the certified
record. The Commonwealth also attached the colloquy as an exhibit to its
brief. All versions are identical.



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Appellant’s reliance on a single sentence, taken entirely out of context from

the first page of the guilty plea colloquy, is misplaced.       The very next

sentence states, in the alternative, that:

            There is no plea bargain or agreement of any kind except
      that the District Attorney promised to:

           Recommend a sentence of not more than Time [served] to
      23 mos. [years] [months] . . . and 3 yrs. NRP.

            Make no recommendation about my sentence.

            Drop the charges of (all other charges).

(Written Guilty Plea Colloquy, at 1) (first emphasis added; all other

emphases indicate handwritten insertions).         The colloquy is signed by

defense counsel, the assistant district attorney, the judge, and Appellant

herself. (See id. at 3-4).

      The inescapable conclusion is that Appellant agreed to a counseled,

negotiated guilty plea which stipulated that in return for her guilty plea to

the   charge   of intimidation of a     witness,   the   Commonwealth would

recommend a sentence of time served to no more than twenty-three months

of incarceration plus three years of non-reporting probation, in addition to

dropping the remaining charges against her.        There is no dispute that the

Commonwealth complied with this agreement. (See Criminal Docket CP-51-

CR-1206551-2000, page 2 of 5) (confirming sentence on guilty plea to

intimidation of witnesses or victims; charges of retaliation against witness or




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victim, terroristic threats, and obstructing administration of law [or] other

government function nolle prossed).

       Therefore, we agree with the trial court that despite the shorthand

notation in the docket, the remaining three charges were not nolle prossed

in the specific technical sense of withdrawal because the Commonwealth

believed it could not prove the charges beyond a reasonable doubt.4 (See

Trial Ct. Op., at 3); see also Wexler, supra at 880; see generally

Pa.R.Crim.P. 585.

       To the contrary, the plain meaning of the guilty plea colloquy is that

the   remaining     three    charges     were    withdrawn   or   “drop[ped]”   as   a

consequence of the negotiated plea agreement.                 (Written Guilty Plea

Colloquy, at 1). On the evidence of record, this was a plea bargain pure and

simple.

       The form may have been inartfully drafted, for example, by not

providing mutually exclusive check boxes for alternative dispositions.

Nevertheless, to insist that no plea agreement existed in this case, as

Appellant does, ignores the facts of record. This was not an “open plea” as

Appellant claims.      (Appellant’s Brief, at v).     The terms of the plea were

explicitly spelled out in the written agreement, in plain English, signed by all.

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4
  Curiously, Appellant concedes that “[t]here is not a scintilla of evidence to
suggest that the charges were nolle prosequi, but instead the charges were
dismissed.” (Appellant’s Brief, at 4).



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J-S15032-16


Appellant’s claim that this completed written form does not constitute a plea

agreement is supported neither by law, the surrounding facts, or any

legitimate semantic distinction.         Therefore, her claim is legally frivolous.

Accordingly, Appellant’s first three claims, which all argue or depend on the

supposition that no plea agreement existed, are without merit.

       Appellant’s fourth question is waived for lack of any discussion,

pertinent or otherwise, supported by authority. See Pa.R.A.P. 2119(a), (b).

Moreover, Appellant misapprehends our standard of review. The trial court’s

decision to grant or deny expungement is an act of judicial discretion. See

Wallace, supra at 317.           Accordingly, we review the decision of the trial

court for an abuse of discretion, not an error of law. See Lutz, supra at

996. Appellant’s fourth claim would fail for that reason as well.

       In Wexler, the Commonwealth nolle prossed the charges against

Martin and Estelle Wexler, because, as the prosecutor stated at the

expungement hearing, it could not prove guilt beyond a reasonable doubt. 5

See Wexler, supra at 880.


____________________________________________


5
  Martin Wexler was charged with corruption of a minor premised on the
arrest of his daughter, Vicki, after marijuana and drug paraphernalia were
discovered in her bedroom. Mrs. (Estelle) Wexler was arrested at her
husband’s preliminary hearing on charges of criminal conspiracy and
corruption of a minor.     Appellant Vicki entered a consent decree and
successfully completed a diversionary probationary program for juveniles.
The Supreme Court considered the special character of a consent decree
under the Juvenile Act a “vital” distinction. Wexler, supra at 881. The
(Footnote Continued Next Page)


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      In Lutz, this Court affirmed the denial of expungement to an appellant

who agreed to a negotiated plea bargain which provided for the dismissal of

all other charges against him in exchange for his guilty plea to one count of

aggravated assault. See Lutz, supra at 995.

      We conclude, after review, that the facts of this case are more aligned

with the facts of Lutz than of Wexler. Pursuant to the holding in Lutz, a

Wexler hearing was not required where the Commonwealth withdrew

charges as part of a negotiated plea bargain. Accord, Commonwealth v.

Waughtel, 999 A.2d 623, 627 (Pa. Super. 2010) (affirming denial of

petition for expungement where plea bargain had been negotiated and it was

understood that remaining charges would be dismissed in exchange for

appellant’s guilty plea to one charge).

      Appellant’s argument that Lutz “is no longer good law, assuming it

ever was[,]” does not merit relief. (Appellant’s Brief, at vi; see also id. at

3). Appellant follows, without specific attribution, the concurring opinion of

Judge Klein in Commonwealth v. Hanna, 964 A.2d 923, 929 (Pa. Super.

2009) (Klein, J., concurring). A concurring opinion is not binding precedent.

      For any principle of law expressed in a decision of this Court to
      be considered precedent, it must command a majority of judges
      voting both as to disposition and the principle of law expressed.
      Accordingly, a decision authored by just one member of a three-
                       _______________________
(Footnote Continued)

Supreme Court also considered the prosecutor’s procedure against the
parents “questionable.” Id. at 879.




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        member Superior Court panel, with the remaining two judges
        either dissenting or concurring in the result, is of no precedential
        value.

Commonwealth v. Davis, 17 A.3d 390, 398 (Pa. Super. 2011), appeal

denied, 29 A.3d 371 (Pa. 2011) (citation omitted).

        Here, as in Lutz, Appellant was not acquitted of the charges at issue.

Nor is there anything in the record to support the supposition that the

Commonwealth withdrew the charges because it lacked evidence to proceed

with prosecution.6      We find, as did the trial court, that the charges were

withdrawn as part of a plea bargain.               We discern no basis on which to

disturb the discretion of the trial court.

        However, we note that the trial court states, inter alia, that it denied

the petition because redaction of the charges at issue was not a part of the

plea agreement. (See Trial Ct. Op., at 2).             It reasons that “granting the

petition would give Appellant more benefit than she bargained for and would

effectively overrule Lutz.” (Id. at 3).

        We note that this reasoning essentially tracks a principle stated in

Lutz.    See Lutz, supra at 1001.              We recognize that the benefit of the

bargain is one factor to consider in the review of a petition for expungement.

Nevertheless, as acknowledged by the trial court in its discussion, our

____________________________________________


6
 To the contrary, the Commonwealth maintains that “[p]ursuant to a[ ] plea
agreement, she admitted her guilt and the Commonwealth dropped
additional charges.” (Commonwealth’s Brief, at 2).



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caselaw presents other factors for additional consideration. Mindful of these

additional factors, our reasoning differs somewhat from that of the trial

court.7 However, “[w]e are not bound by the rationale of the trial court, and

may affirm on any basis.” In re Jacobs, 15 A.3d 509, 509 n.1 (Pa. Super

2011) (citation omitted).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




____________________________________________


7
  In any event, we take occasion to express our categorical disagreement
with Appellant’s bald, unsupported claim that “[a]ll of the reasons cited by
the trial court are frivolous and without merit.” (Appellant’s Brief, at 1).



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