J-A09046-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.


AARON DYKES

                            Appellant               No. 3091 EDA 2012


                   Appeal from the Order September 12, 2012
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012380-2008


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

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

       Aaron Dykes appeals from the order entered September 12, 2012, in

the Philadelphia County Court of Common Pleas, denying his petition for the

expungement of his criminal record in the above-captioned case. On appeal,

Dykes contends the trial court abused its discretion in denying his petition

for expungement. For the reasons set forth below, we agree and reverse.

       The facts underlying this appeal were summarized by the trial court as

follows:

              Appellant, Aaron Dykes, was arrested on August 7, 2008,
       and charged with twenty-four (24) counts of fifteen (15)
       different crimes:[1] Conspiracy to Commit Robbery and Inflict
____________________________________________


1
 A review of the certified record reveals that Dykes was actually charged
with 26 counts.
J-A09046-14


       Serious Bodily Injury, Unlawful Restraint, Attempted Theft,
       [Possession of an Instrument of Crime (PIC)] with Intent,
       Terroristic Threats, Simple Assault, [Recklessly Endangering
       Another Person (REAP)], False Imprisonment, Conspiracy to
       Murder, Theft by Unlawful Taking, Receiving Stolen Property,
       Carrying Firearms in Public, Attempted Murder, Carrying a
       Firearm with a License, Person not to Possess or Use Firearms,
       and Robbery with Intent to Inflict Serious Bodily Injury. At his
       September 26, 2008, preliminary hearing, the Carrying Firearms
       in Public, Attempted Murder, Carrying a Firearm without a
       License, and Person not to Possess or Use Firearms charges were
       dismissed for lack of evidence, and the remaining charges were
       held for court. On October 17, 2008, the Robbery with Intent to
       Inflict Serious Bodily Injury charge was changed to Robber[y]
       with Threat of Immediate Serious Bodily Injury. On April 20,
       2010, the Commonwealth decided to nolle prosse the remaining
       charges, but [] Dykes failed to appear for a hearing and on June
       2, 2010, the nolle prossed charges were reinstated and a bench
       warrant was issued.

              [] Dykes was arrested twice on unrelated charges in 2011,
       and on October 6, 2011 the Commonwealth tried [] Dykes for
       the reinstated nolle prossed charges for which the bench warrant
       had been issued. [] Dykes was found not guilty or was acquitted
       of all charges related to his 2008 arrest. On September 6, 2012,
       [] Dykes was sentenced to probation for his 2011 arrests.

             [] Dykes moved to expunge the records of his 2008 arrest
       and charges. This Court held a Wexler[2] hearing on September
       12, 2012, and found that none of the charges passed Wexler.
       [Dykes] filed his timely Notice of Appeal on October 12, 2012,
       and his 1925(b) Statement of Errors Complained of on Appeal
       was filed on November 2, 2012.


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

omitted).


____________________________________________


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



                                           -2-
J-A09046-14



      On appeal, Dykes 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, and



of his 2008 arrest records precluded the trial court from denying his

expungement petition. Finally, with regard to the criminal charges for which

he was acquitted, Dykes argues that he was entitled to expungement of

those charges as a matter of law pursuant to the Pennsylvania Supreme

                   Commonwealth v. D.M., 695 A.2d 770, 773 (Pa. 1997).

      Preliminarily, we              [t]he decision to grant or deny a petition

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



                                                                       erest in

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

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

A.2d at 879.

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

Court set forth the relevant consi

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

                                      -3-
J-A09046-14


     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,

                                         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


                                   alance 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
               Commonwealth v. Wexler, 431 A.2d 877, 879
     (Pa.1981); D.M., supra                                authority of
     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).

           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.

                                    -4-
J-A09046-14


      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
                                                 justify 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
                                                         ar the burden of
                                                                   Id. at
      880.

Id. at 993-994.

      Therefore,    pursuant    to     Wexler,      supra,      and    its   progeny,    the



non-conviction     records     when    the   charges      were        dismissed    by    the

Commonwealth before trial.

      In his first issue, Dykes 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 should the trial court engage in a

balancing test considering the Wexler factors. See id.

      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:


                                          -5-
J-A09046-14


       [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,

                                                                        inal record.3 Rather,

as our Supreme Court stated in D.M., supra                   [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                    Id., 695 A.2d at 773 (emphasis supplied).

Therefore, we decline to create a two-part test, as suggested by Dykes,

requiring the Commonwealth to provide compelling reasons for the retention

                         -conviction record before permitting the trial court to

consider the Wexler factors.4



____________________________________________


3
  Naturally, ho
reasons would weigh heavily in favor of expungement.
4
                                  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.




                                           -6-
J-A09046-14



     Dykes also argues that where, as here, the Commonwealth fails to

                                                Wexler hearing supporting




Dykes Brief at 17. Further, he contends that pursuant to the Pennsylvania

Supreme Cou                   D.M., supra, he was entitled to expungement

of the charges of which he was acquitted as a matter of law.         We will

consider these claims in reverse order.

     In D.M., supra, the Pennsylvania Supreme Court held that when a

petitioner has been a

                                               D.M., 695 A.2d at 773. The

Court explained:

     We hold, in agreement with the reasoning of the Superior Court,
     that the Wexler balancing is unnecessary, indeed inappropriate,
     when a petitioner has been tried and acquitted.

            The problem is in attempting to apply the first factor of
     Wexler
     petitioner after a trial which resulted in a verdict of acquittal.
     We regard it as improper to go behind a verdict of acquittal and

     defendant enters a trial cloaked in the presumption of innocence
     and when the fact-finder reaches a verdict of acquittal, there is
     no justification to search for reasons to undermine the verdict.
     Such a defendant has achieved the strongest vindication possible
     under our criminal tradition, laws, and procedures; we hold that
     he is entitled to expunction of the arrest record.

           All 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 or ARD. In cases of acquittal, however, we hold that a


                                    -7-
J-A09046-14


       petitioner is automatically entitled to the expungement of his
       arrest record.[5]

Id. at 772-773 (footnote omitted). See also Moto, supra, 23 A.3d at 993.

       Here, there is no dispute that Dykes was acquitted of 19 of the

charges he seeks to expunge from his 2008 arrest         the trial court granted a

judgment of acquittal as to 15 counts, and Dykes was found not guilty of the

remaining four counts.        See Disposition and Dismissal Form, 10/6/2011.

Pursuant to the mandate in D.M.

                                 rest records.   D.M., supra, 695 A.2d at 773.




                                                                              sed




____________________________________________


5
  We note that in Wallace, supra, the Pennsylvania Supreme Court recently
narrowed the mandate in D.M.                                    not have the
right to petition for expungment while incarcerated
of the charges the petitioner sought to expunge in that case resulted in
acquittals. Wallace, supra, at *10 (emphasis supplied). In a concurring
opinion, Justice Castille cautioned against an expansive reading of D.M.,
particularly in light of the facts presented in D.M. Id. at *10-*11 (Castille,
J. Concurring Opinion) Indeed, D.M. involved a schoolteacher, with no prior
criminal record, who had been acquitted of misdemeanor indecent assault
and corruption of minors charges, while Wallace involved a defendant with

                                                        Id. at *11. Since,
however, it does not appear that Dykes is presently incarcerated, or was so
at the time he filed the expungement petition, the pronouncement in
Wallace does not affect our decision.




                                           -8-
J-A09046-14




charges of which he was acquitted.6

       Although the Commonwealth concedes that the acquitted charges are

subject to expungement, it argues the trial court properly denied Dyk

petition for expungement of the charges for which he was not acquitted, but

were dismissed prior to trial.        While the Commonwealth does not specify

those specific charges, our review of the certified record reveals that on

October 17, 2008, the Commonwealth withdrew five violations of the

Uniform Firearms Act and one count of attempted murder for lack of

evidence.     See Trial Disposition and Dismissal Form, 10/6/2011.7      The

Commonwealth also withdrew one additional count of carrying a firearm in

public on October 6, 2011.            These seven charges were subject to the

Wexler test.      See Commonwealth v. Rodland, 871 A.2d 216, 221 (Pa.

Super. 2005) (holding that Wexler test applied to determine whether
____________________________________________


6
  We also find that our disposition necessarily includes the two robbery
charges that were changed. Dykes was originally charged with two counts
of robbery under 18 Pa.C.S. § 3701(a)(i) (inflicts serious bodily injury).
However, those charges were changed to two counts of robbery under
subsection (a)(ii) (threatens another with serious bodily injury), charges of
which he was found not guilty at trial.
7
    Although the form does not indicate that the charges were dismissed for

brief, does note that that the charges were                              See


charges were dismissed due to lack of evidence. See
6/18/2013, at 2.



                                           -9-
J-A09046-14



petitioner was entitled to expungement of charges which were dismissed for

lack of evidence). However, in Rodland

ever, will charges dismissed for lack of evidence fail to qualify for

expungement under Wexler             Id.

       In the present case, the trial court provided the following rationale in



       [In considering the Wexler factors, h]ere, the second factor is

                                                                   .
       Commonwealth v. A.M.R., 2005 PA Super. 398, 887 A.2d
       1266, 1270 (Pa. Super. Ct. 2005).[8] The third factor weighed

       to grow with his two arrests in 2011. The fourth factor, length of
       time since the arrest, also favored record maintenance; it had

       Wexler hearing. The fifth factor most heavily favored record
       maintenance; Mr. Dykes had open cases on his record, was on
       probation, and was employed at the time of his Wexler hearing.
____________________________________________


8
                                     A.M.R. is misplaced, as is evident from the
following passage:

       With regard to the second factor, the [trial] court      found the
       Commonwealth wanted to retain the record so future       employers
       would be aware of Appellant's defective character.        That this
       Court finds no such defect is irrelevant.     It is      relevant,
       however, that the Commonwealth made                      no such
       argument at the expungement hearing.

A.M.R., supra, 887 A.2d at 1270 (Pa. Super. 2005) (emphasis supplied).
Therefore, this Court did not

under Wexler. Rather, we found that such an argument was waived since it
was not raised by the Commonwealth during the Wexler hearing.




                                           - 10 -
J-A09046-14


       His current probation combined with other arrests and charges
       on his record mean these 2008 charges alone add little, if any,
       harm.[9] Clearly, Mr. Dykes is still able to successfully achieve
       employment, i
       maintenance of the record of his 2008 charges. With four



Trial Court Opinion, 6/18/2013, at 4-5.

       However, the trial court did not discuss the first factor in the Wexler



particularly significant in the present case for two reasons. First, six of the

seven charges at issue were dismissed for lack of evidence. As noted above,

this Court in Rodland

for lack of evidence fail to qualify for expungement under Wexler

Rodland, supra, 871 A.2d at 221. Second, and most importantly, Dykes

was ultimately acquitted of the remaining charges, and, therefore, was

completely exonerated of the criminal incident from which those charges

arose.10 As our Supreme Court observed in D.M.:

       A defendant enters a trial cloaked in the presumption of
       innocence and when the fact-finder reaches a verdict of
       acquittal, there is no justification to search for reasons to
       undermine the verdict. Such a defendant has achieved the
       strongest vindication possible under our criminal tradition, laws,

____________________________________________


9
  This finding by the trial court is dubious, since one of the 2008 dismissed
charges was a count of attempted murder.
10
                                                                   the alleged

2.



                                          - 11 -
J-A09046-14


     and procedures; we hold that he is entitled to expunction of the
     arrest record.

Id., 695 A.2d at 772-773.

     Both the trial court and the Commonwealth, however, emphasize

                                                                   - (1) a

guilty plea to two violations of the Uniform Firearms Act, and (2) a guilty

plea to possession with intent to deliver a controlled substance, and an

arrest for gun charges, which was later nolle prossed. See N.T., 9/12/2012,

                                  -4. We conclude that his recent crimes do

not erase the fact that he was found not guilty of the August 7, 2008,

gunpoint robbery. Indeed, during the Wexler hearing, the Commonwealth

presented no evidence as to why the dismissed charges, i.e., violations of

the Uniform Firearms Act and attempted murder, should be treated

differently from the charges that resulted in acquittals. The only argument

the Commonwealth presented, which the trial court readily accepted, was

that d




                                  D.M.

concern with maintaining the arrest records of a defendant who has been

exonerated, is of no relevance.    Accordingly, we conclude the trial court




                                   - 12 -
J-A09046-14




charges that were dismissed prior to trial, but did not result in an acquittal.11



Commonwealth v. Dobson, 684 A.2d 1073 (Pa. Super. 1996), supports




arrest records on weapons charges, even though some of those arrests

resulted in acquittals.        Id. at 1074.        This Court affirmed on appeal

concluding the trial court did not abuse its discretion in applying the Wexler

factors. In particular, the defendant was incarcerated on a nine to 26 year

prison sentence, and had a 25-year criminal record. This Court observed,

                                               correct the harm which may arise

from an uncharacteristic act, not as a selective white-washing measure for

                                                            Id. at 1076.

       However, the Commonwealth fails to acknowledge that Dobson was

decided before                                                   D.M.

Wexler balancing is unnecessary, indeed inappropriate, when a petitioner



____________________________________________


11
   Compare Rodland, supra, 871 A.2d at 219 (holding that, when a
defendant is convicted of some charges and acquitted of others

trial court that expungement is impractical or impossible under the




                                          - 13 -
J-A09046-14



                                                                   ement of his

                 D.M., supra, 695 A.2d at 772, 773. Further, pursuant to

                                              Wallace, incarcerated petitioners,

such as the defendant in Dobson

expungment while inca              Wallace, supra, at *10. Accordingly, the

precedential effect of the Dobson decision is dubious, at best.

      Therefore, because we find the trial court abused its discretion in

                                                                              7,

2008, arrest, we reverse the order of the trial court.

      Order reversed. Case remanded with directions to expunge the record

as requested. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




                                     - 14 -
